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Texas Bar Exam Feb. 2024 > Crim Pro > Flashcards

Crim Pro Flashcards

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1
Q

Fourth Amendment: Constitutional Protection

A

people have right against unreasonable searches and seizures.

Any evidence obtained as a result of a Fourth Amendment will be suppressed at trial.

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2
Q

Fourth Amendment: Violation Requirements

A
  • conduct at issue was engaged in by gov’t-authorized personnel [persons working on behalf of gov’t]
  • there was a search or seizure
  • the gov’t actor did not have a valid warrant for the search or seizure or had a valid warrant but executed it improperly and
  • no exception to the warrant requirement applies
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3
Q

Fourth Amendment: Exclusionary Rule

A

If violation, evidence excluded unless exception applies.

If exception applies, evidence admitted despite a violation.

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4
Q

Fourth Amendment: Search

A

Katz

  • person has a legitimate personal expectation of privacy in the area being searched by the gov’t or communications being collected by the gov’t organization AND
  • this expectation is reasonable under the circumstances
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5
Q

Fourth Amendment: Reasonable Expectation of Privacy

A
  • person’s home, apartment, business, hotel room
  • person’s personal belongings
  • private phone conversations
  • cell-phone location data from a phone company for a period of seven days or more
  • any items in which the person has an ownership interest
  • curtilage (front yard, backyard, or property intimately tied to a home)
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6
Q

Curtilage Factors

A
  • proximity of the area to the home
  • whether the area is included within an enclosure surrounding the home
  • the nature of use of the property and
  • steps taken by the resident to protect the area from observation
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7
Q

Fourth Amendment: People with no REOP

A
  • prisoners
  • car passengers, in any area of the car unless (a) passenger is the driver’s spouse, (b) passenger is using a taxi service, or (c) search is of passenger’s personal belongings
  • guests in another person’s home unless the person stays overnight or, sometimes, social guests or guests with a close relationship with the homeowner
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8
Q

Fourth Amendment: Situations with no REOP

A
  • information voluntarily disclosed to a 3P or business even if the person believed communications would be kept private
  • garbage or objects visually observable to the public
  • conversations that can be overheard in public
  • open fields (unoccupied or undeveloped areas outside the curtilage of the home)
  • overhead flyovers and aerial photography of open fields
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9
Q

Fourth Amendment: Search Even If No REOP

A
  • Kyllo: (1) police used technology that is not in general use (2) to gather information about the defendant’s home that would not otherwise be obtainable
  • Constitutional Trespass Test: (1) police physically intruded onto a person’s property beyond what was socially expected or implied (2) with the intent to gather information
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10
Q

Fourth Amendment: Seizure

A

seizure of property or person occurs if
- police meaningfully interfere with a person’s possessory interest in an item OR
- person reasonably believes he is not free to leave or terminate the encounter

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11
Q

Fourth Amendment: Terry Stop

A
  • police officer uses physical force on the person OR
  • police officer displays a show of authority, subject submits to officer’s authority by stopping, and a reasonable person in that situation would feel he is not free to leave.
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12
Q

Fourth Amendment: Custody

A

officer arrests a person by depriving the person of freedom in a significant.

Arrests must be supported by probable cause (under the totality of the circumstances, there is a fair probability that evidence of a crime will be found in the area being searched or that the person being arrested committed a crime)

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13
Q

Fourth Amendment: Valid Warrant Requirements

A
  • under the totality of the circumstances, there must be a fair probability (probable cause) that evidence of a crime will be found in the area being searched or that the person being arrested committed a crime
  • person reviewing and approving the warrant application must be a neutral and detached magistrate who has no interest in the outcome of the case
  • police office must sign an affidavit under oath attesting to the truth of the information in the warrant application
  • warrant must include with some particularity the place and items to be searched, the individual(s) to be arrested, or the conversations to be overheard
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14
Q

Fourth Amendment: Anticipatory Search Warrants

A

can be issued if probable cause to believe evidence will be at that location at a future time after a triggering event

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15
Q

Fourth Amendment: Anonymous Tips and Probable Cause

A

courts look at:
- veracity or reliability of the tip and
- the basis of the informant’s knowledge to determine probable cause

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16
Q

Fourth Amendment: Knock-and-Announce Rule

A

officers must
- knock and announce that they are in possession of a warrant and intend to use it and
- give the homeowner a reasonable amount of time to respond before executing the warrant unless they reasonably believe it would be ineffective or it would inhibit the investigation

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17
Q

Fourth Amendment: Arrests in a Suspect’s Residence

A

an officer can execute an arrest warrant at the suspect’s home but will need a search warrant if the suspect is residing in another person’s home (i.e., probable cause the suspect will be there)

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18
Q

Fourth Amendment: Third Parties in Home

A

when executing an arrest warrant in someone’s home, the officer can
- conduct a protective sweep to determine if 3Ps are present
- detain the 3P for the duration of the search
- conduct a Terry pat-down search if the officer reasonably believes the 3P is armed and dangerous

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19
Q

Fourth Amendment: Methods to Execute a Warrant

A

officers must comport with the standards of civilized decency (e.g., not threaten a person’s health and safety).

Evidence obtained in a manner that shocks the conscience is excluded.

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20
Q

Fourth Amendment: Exceptions to Warrant Requirement

A
  • exigent circumstances
  • plain view / feel
  • lawful arrest
  • search incident to lawful arrest
  • automobile exception
  • consent
  • Terry stop and frisk
  • special-needs searches
  • border search
  • gov’t search
  • K-12 public school
  • inventory searches
  • administrative searches
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21
Q

Fourth Amendment Warrant Exception: Exigent Circumstances

A

can enter home when someone is in imminent danger, evidence about to be destroyed, suspect’s escape is imminent, or officer in hot pursuit.

Officer must have probable cause to believe evidence of crime in house or that suspect in house has committed a crime.

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22
Q

Fourth Amendment Warrant Exception: Plain View / Feel

A

Plain view: can seize item if officer is
- lawfully present in the location
- sees an item in plain view
- has probable cause to believe it is contraband or evidence of crime and
- lawful right of access to the item

Plain feel: officer can seize item if officer conducts a lawful pat-down search and detects an object by touch that the officer immediately recognizes to be a weapon or contraband

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23
Q

Fourth Amendment Warrant Exception: Lawful Arrest

A

officers needs probable cause to arrest a felony suspect outside suspect’s home.

May arrest a misdemeanor suspect without a warrant only if misdemeanor committed in officer’s presence

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24
Q

Fourth Amendment Warrant Exception: Search Incident to Lawful Arrest

A

after making lawful arrest, officer can conduct:
- contemporaneous search of the arrestee’s person, including the area within immediate reach
- breath test but not a blood sample unless there is consent or exigent circumstances
- DNA test of persons arrested for serious offenses (and police may store for use in unsolved crimes)
- protective sweep of enclosed spaces where another person could be hiding, if the arrest was in a home
- search of the interior compartment of a car but not the trunk
- search of the exterior of a cell phone but not digital data

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25
Q

Fourth Amendment Warrant Exception: Automobile Exception

A

can search motor vehicle, including the trunk, if there is probable cause to believe that contraband or evidence of a crime will be found

EXCEPTION: does not apply if (1) automobile has been parked in curtilage of a home for some period of time, even an hour OR (2) officer only has probable cause to believe the contraband will be found in a particular container inside the vehicle (and can only search the container)

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26
Q

Fourth Amendment Warrant Exception: Consent

A

officer can search specific area if the owner, or someone who has authority or apparent authority, gives consent freely and voluntarily

Nullified if officer uses coercion or duress, falsely claims has a search warrant, or search warrant is invalid.

Consent can be revoked at any time.

Co-tenant or landlord may consent to searches of common areas but not to another tenant’s room or apartment unless co-tenant is parent of a minor or adult child. If other person is present and objects, no consent.

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27
Q

Fourth Amendment Warrant Exception: Terry Stop

A

if reasonable suspicion (more than a hunch or inchoate suspect) that suspect has engaged in or will engage in criminal activity, then officer can briefly detain the suspect, ask the suspect to exit the vehicle, and ask questions.

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28
Q

Fourth Amendment Warrant Exception: Terry Frisk

A

if an officer has a reasonable suspicion that suspect is armed and dangerous, officer can conduct a pat-down of the suspect’s outer clothing.
- limited to time reasonably required to handle matter for which stop was made
- does not apply to searches of individual’s home
- no limitations on lawful terry stops conduct for purpose of investigating other, unrelated crimes
- after lawful terry stop, can search interior compartment if reasonable suspicion the driver has a weapon in the car. Can only search trunk with probable cause.

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29
Q

Fourth Amendment Warrant Exception: Special-Needs Searches

A

includes DUI checkpoints, airport screenings, and metal detectors at public buildings. Require no probable cause or reasonable suspicion IF:
- non-criminal investigative purpose (safety)
- intrusion not too invasive after balancing the gov’t’s interest against individual’s private interest
- some data demonstrating the search’s effectiveness
- police have clearly identified the criteria for determining which persons will be stopped

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30
Q

Fourth Amendment Warrant Exception: Border Search

A

border agents can conduct routine searches near or at a physical border or at international airport terminals without probable cause or reasonable suspicion.

Need reasonable suspicion to do a more invasive, nonroutine search.

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31
Q

Fourth Amendment Warrant Exception: Gov’t Search

A

gov’t employers can conduct reasonable searches of an employee’s desk, filing cabinets, office, and work equipment if the search is
- non-investigatory and conducted for work-related purposes OR
- conducted as part of an investigation of a reasonable suspicion of work-related misconduct

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32
Q

Fourth Amendment Warrant Exception: K-12 Public School

A

officers may search the belongings and person of a student if they have reasonable grounds to believe that the search will lead to evidence that the student is violating the law or school rules

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33
Q

Fourth Amendment Warrant Exception: Inventory Searches

A

lawfully impounded property may be conducted without a warrant

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34
Q

Fourth Amendment Warrant Exception: Administrative Searches

A

public officials may search business property in certain closely regulated industries, such as agriculture and petroleum.

35
Q

Fourth Amendment: Exclusionary Rule - Fruit of the Poisonous Tree

A

if gov’t conducts an unconstitutional search / seizure, evidence obtained from that search, as well as any evidence collected later that would not have been discovered but for the evidence obtained during the illegal search or seizure, will be excluded from the trial.

36
Q

Fourth Amendment: Exclusionary Rule - Fruit of the Poisonous Tree - Exceptions

A
  • independent source: later obtained it independently through activities untainted by the initial illegality
  • inevitable discovery: would have eventually or inevitably discovered it by other means that are untainted
  • dissipation of taint: factors to determine if initial illegal behavior dissipates to point where it no longer taints the evidence - (1) length of time between illegality and seizure of item; (2) purpose and flagrancy of the initial unlawful conduct; (3) existence of any intervening causes; and (4) whether defendant acted with free will in providing evidence
  • good faith: acted in good faith and reasonably relied on (1) a warrant, (2) binding judicial precedent, or (3) an attenuated, isolated bookkeeping error that was a result of mere negligence
  • in-court identification: not excluded based on prior illegal search or seizure
37
Q

Fifth Amendment

A

individuals have a right against coercive or involuntary confessions conducted by gov’t-authorized personnel.

Any evidence obtained through gov’t conduct that violated the individual’s 14th amendment, 5th amendment, or Miranda rights will be suppressed.

38
Q

Fifth Amendment: Violation

A
  • evidence at issue is a testimonial statement made to a gov’t-authorized personnel and
  • defendant’s statement was coerced
39
Q

Miranda Rights: Violation

A
  • defendant was subjected to a custodial interrogation and
  • (a) defendant was never read Miranda rights; or (b) defendant was read Miranda rights and invoked them but the questioning continued.
40
Q

Testimonial Statements

A

oral and written communications that explicitly or implicitly convey or disclose factual information.

41
Q

Nontestimonial Evidence

A

fingerprints, blood samples, voice exemplars, handwriting samples, tax documents, and documents that are required to be kept by law and that have a primarily regulatory purpose

42
Q

Fifth Amendment / Miranda: Gov’t Conduct

A

5th Amendment does not apply if a private citizen is acting at the direction of a gov’t personnel and the suspect does not know of the relationship between the private citizen and gov’t

43
Q

Coerced Confession

A

Courts examine the totality of the circumstances to determine whether a confession was coerced or compelled using two factors:

  • physical or psychological pressure (length, deprivation of food or water, false friends)
  • defendant’s specific characteristics and known vulnerabilities (age, education)

Basic deception, leading questions, and vague promises of leniency are not coercive on their own.

Can compel incriminating testimony by granting the witness immunity from prosecution.

44
Q

Miranda Rights Requirements

A

suspect must be read Miranda rights if the suspect is:
- in custody and
- subject to interrogation unless
- a public-safety exception applies

45
Q

Miranda Rights: Custody

A

person is in custody if the person is arrested or deprived of freedom in a significant way. Courts analyze whether:
- reasonable person would have felt able to terminate the interrogation and leave and
- environment has the same inherently coercive pressures as a police station questioning.

46
Q

Miranda Rights: Interrogation

A

occurs when a police officer
- asks express questions or
- uses words or actions that the officer should know are reasonably likely to elicit an incriminating response

Voluntary statements and routine booking questions are not a result of an interrogation.

47
Q

Giving Miranda Rights

A

police must tell suspect that
- she has a right to remain silent
- anything she says can and will be used against her
- she has a right to counsel during questioning
- if she is indigent, counsel will be provided

48
Q

Waiving Miranda Rights

A

must be made knowingly and voluntarily based on the totality of the circumstances. If warning given and understood, defendant’s subsequent uncoerced statement establishes implied waiver.

49
Q

Invoking Miranda Rights Generally

A

Must be unambiguous and unequivocal. Merely suggesting that the suspect might want an attorney is not a valid invocation. Once invoked, questioning must stop.

50
Q

Invoking Miranda Rights - Right to Counsel

A

Questioning must stop until counsel is provided and physically present.

Police can attempt to reinitiate questioning if they wait at least 14 days and give the suspect new Miranda warnings.

51
Q

Invoking Miranda Rights: Right to Remain Silent

A

can reinitiate questioning only after honoring the suspect’s invocation. Three factors to determine if second interrogation valid:
- length of time passed between interrogations
- whether second interrogation involved a different crime
- whether new warnings were read

Suspect can reinitiate a conversation anytime with the police

52
Q

Fifth Amendment: Exclusionary Rule

A

evidence is tainted and inadmissible if it was acquired through an involuntary confession but derivative evidence is not excluded because of Miranda violations

53
Q

Sixth Amendment

A

attaches once formal proceedings have commenced against a suspect (indictment):
- suspect must be represented by counsel during any critical stage of prosecution
- police and prosecutor cannot interrogate defendant without a lawyer present

OFFENSE-SPECIFIC: applies only to interrogations for crimes with which defendant charged (can interrogate about separate crimes)

54
Q

Sixth Amendment: Critical Stages

A

lineups, interrogations, plea bargaining proceedings, preliminary hearings, trials, sentencing, and the first level of appeals.

NOT photo arrays, fingerprint matching, and voice identifications.

55
Q

Sixth Amendment Applicability

A

applies to interrogations for crimes with which the defendant has been charged but police can interrogate the defendant about a separate crime.

Undercover informants cannot be used to deliberately elicit responses related to crime in question BUT can merely listen to a defendant’s incriminating statements.

56
Q

Sixth Amendment: Remedy

A

if not afforded right to counsel at trial / during plea-bargaining proceeding, subsequent conviction is reversed.

If violation led to incriminating evidence / testimony, exclusionary rule and exceptions apply.

If identification procedure arranged by law enforcement and violates due process, excluded from evidence at trial.

57
Q

Sixth Amendment: Effective Assistance of Counsel

A

right to counsel includes effective representation in critical stages.

Ineffective if:
- deficient based on objective standard of reasonableness AND
- defendant suffers prejudice as a result of deficiency.

Defendant may also have claim if actual COI adversely affected attorney’s performance.

58
Q

Sixth Amendment: Right to Choose Counsel

A

if defendant has financial means and no issues of competency or COI, defendant has right to choose counsel

59
Q

Sixth Amendment: Waiver

A

must be made knowingly and voluntarily based on totality of circumstances

60
Q

Sixth Amendment: Pro Se

A

Defendant can represent himself if he makes the decision intelligently and knowingly

61
Q

Lineups or Showups

A

due process requires these to be fair under the totality of the circumstances (not unnecessarily suggestive; don’t create risk of mistaken identification). Factors:
- witness’s opportunity to view the perpetrator at the time of the crime
- witness’s degree of attention paid to the perpetrator at the time of the crime
- degree to which witness’s prior description of the perpetrator (if any) matches the defendant
- witness’s level of certainty as demonstrated at the identification and
- length of time between the crime and the identification

62
Q

Photo Identification

A

must be fair to the suspect under the totality of the circumstances

63
Q

Fair Trial: Rights

A
  • jury trial with at least six jurors composed of a fair cross-section of the relevant community if the charge carries a possible sentence of more than 6 mos. imprisonment
  • impartial judge with no close personal or financial involvement in the case
  • speedy and public trial
  • effective counsel
  • introduce evidence at trial to prove defendant did not commit the crime
  • confront witnesses
  • proper conduct by the prosecutor
64
Q

Jury Trial

A

all verdicts in criminal cases must be unanimous, except jury’s determination of whether to recommend that judge impose the death penalty in the penalty phase of a capital case

65
Q

Fair Trial: Fair Cross-Section

A

to establish prima facie violation, defendant must prove that:
- there was a group qualifying as distinctive
- the group was not fairly and reasonably represented in the jury venire and
- systematic exclusion in the jury-selection process accounted for the underrepresentation

66
Q

Exclusion of Jurors

A
  • can challenge for cause (bias, views on capital punish, racial prejudice if race involved) - UNLIMITED NUMBER.
  • can exercise peremptory challenges (any reason not based on race or gender). If defendant thinks unconstitutional, prosecutor must provide neutral explanation. Mistrial not required if trial court made good-faith error in denying peremptory challenge out of concern that it was discriminatory.
67
Q

Jury Tampering

A

person improperly coerces or communicates with a juror.

Can warrant a mistrial.

68
Q

Competency to Stand Trial

A

must be competent before standing trial - look at mental state at that time, not when crime committed.

Must fully understand nature and significance of trial proceedings. Trial judge, with assistance of mental health professionals, decides whether competent.

Judge must raise the issue if evidence that defendant is not competent, even if defendant represented by counsel.

69
Q

Guilty Plea

A

Defendant has right to enter guilty plea but it must be made voluntarily, knowingly, and intelligently.

Voluntarily = without coercion

Knowingly and Intelligently = fully aware of nature of charges and consequences of pleading guilty

70
Q

Double Jeopardy

A

protected against second prosecution for same offense, regardless of whether there was an acquittal or conviction in first prosecution.

would bar subsequent prosecution for a lesser include offense when a defendant was convicted of the serious offense

71
Q

No Double Jeopardy

A

gov’t can bring subsequent civil case against defendant that arises out of the same conduct.

Prosecutions by different sovereigns, even for same conduct, not barred (federal and court are different sovereigns)

Only protects successive prosecutions of same offense so if element in each offense is different, no double jeopardy.

72
Q

Double Jeopardy Requirements

A

attaches after first witness sworn in (bench trial) or after entire jury empaneled and sworn in (jury trial).

If case dismissed prior to swearing in, no double jeopardy protection.

73
Q

Eighth Amendment

A

prevents cruel and unusual punishment (i.e., barbaric penalties or punishment that shocks public morality, such as torture or linger-death punishments)

74
Q

Cruel and Unusual Punishment Factors

A
  • nature of the crime
  • severity of the penalty
  • sentences of similarly situated defendants
75
Q

Cruel and Unusual Punishment: Capital Punishment

A

considered disproportionate penalty for most crimes other than homicide

76
Q

Cruel and Unusual Punishment: Juvenile

A

persons under the age of 18 at time they committed the crime may not be executed or sentenced to life in prison without parole for a nonhomicide crime

77
Q

Burden of Proof: Constitutional Protection

A

due process requires that criminal defendants be afforded.a presumption of innocence.

Gov’t must prove all elements of the crime beyond a reasonable doubt

78
Q

Beyond a Reasonable Doubt

A

very high standard of proof that requires some level of certainty or firmness.

79
Q

Burden of Proof: Affirmative Defenses

A

defendant bears burden of production and proof on an affirmative defense.

Must prove by preponderance of the evidence.

If defendant raises a plausible basis for defense, gov’t must disprove beyond a reasonable doubt.

80
Q

Appeal and Error: Trial Judge Rulings

A

harmless error: will not reverse improper ruling unless substantial risk that error affected outcome.

Some constitutional violations are per se prejudicial and require reversal
- detail of counsel during trial
- denial of defendant’s right to a public trial
- constitutional violations in jury selection
- constitutionally deficient jury instructions on reasonable doubt standard
- biased trial judge

81
Q

Appeal and Error: Jury Verdicts

A

Sufficiency of the evidence: conviction affirmed provided that reasonable juror could have found defendant committed all required elements beyond a reasonable doubt.

Views all evidence in light most favorable to prosecution.

82
Q

Appeal and Error: Judge Fact-Finding

A

Clearly erroneous: if judge sat as trier of fact or imposed sentence, will not revise unless decision was unsupported by substantial, credible evidence in the record

83
Q

Habeas Corpus

A

convicted inmate can file petition for writ of habeas corpus challenging lawfulness of detention or imprisonment on jurisdictional or constitutional grounds.

Does not address question of inmate’s guilt or innocence but it is a post-conviction remedy requesting the court to order immediate release.

84
Q

Habeas Corpus Limitations

A

Congress has decreased statute of limitations to one year, prohibited successive filings, required exhaustion of remedies, and limited the grounds on which relief may be granted.

Texas Bar Exam Feb. 2024 (16 decks)

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