Crim Pro Flashcards
Amendments
4th - unreasonable search and seizure
5th
- self incrimination
-double jeopardy
6th
- speedy trial
- public trial
- trial by jury
- confront witnesses
- counsel extending to first appeal
8th
- cruel and unusual punishment
- excessive fines
4th amendment arrest and detention
Government actor
Arrest - probable cause
- dont need warrant unless in the home
Terry stop - reasonable suspicious supported by articulable facts
-if using informant - need indicia of reliability
Auto stops - reasonable suspicion
- dog sniff not a search but can create reasonable suspicion
Roadblock
- neutral articulable standard and closely related to a particular problem pertaining to automobiles
4th amendment evidentiary search and seizure
Need warrant - probable cause and particularity, neutral detached magistrate
-government conduct
-reasonable expectation of privacy
-physical intrusion into protected area
exceptions
- incident to arrest
- automobile search
-plain view
-consent
-stop and frisk
-hot pursuit, exigent, evanescent, emergency
3rd parties cannot execute warrant of accompany unless present to aid in identifying stolen property
Can detain occupants during search but cannot search them if not in warrant
Standing for search and seziure
reasonable expectation of privacy
-owned or right to possession of place searched
- place was their home
- overnight guest in the place
no reasonable expectation in things held out to the public, except cell-site location information
Warrant exceptions
Search incident to arrest - contemporaneous
- person and areas the person may reach
- protective sweep if believe accomplices are present
- passenger compartment of car if believe evidence of the crime is in there or D not secured and may gain access
- inventory search of belongings and impounded car
Automobile exception
-probable cause to believe vehicle contains fruits or instrumentalities, can search whole car and container reasonable believed to hold the item
-cannot be in curtilage
- probable cause must arise before anyone or anything is searched, can arise after car stopped
Plain view
- legitimately on premises
-immediately apparent it is contraband
Consent
-saying there is a warrant negates consent
-consent by anyone with an apparent equal right to use or occupy
-objection of present co-occupant wins while present
Stop and frisk
-patdown of outer closing and body for weapons during terry stop if reasonably believe armed and dangerous
-if car stop and reasonably believe armed and dangerous- frisk person adn search car in areas where weapon could be
Evanescent evidence
- might disappear quickly
Hot pursuit
- fleeing felon
-includes private dwelling
- within 15 minutes behind fleeing felon
emergency aid
- threatened health or safety of individual or public
Admin searches of business is highly regulated industry and inventory searches pursuant to procedures, airline passengers, drug tests of public school students in extracurric activities
6th amendment right to counsel
all criminal proceedings - all critical stages of prosecution after judicial proceedings have begun (formal charges filed)
police cannot elicit incriminating information outside presence of counsel after being charged unless waived
offense specific - may be questioned regarding unrelated, uncharged offenses - different offenses if each requires proof an additional element the other does not require
Violation
- nontrial proceeding - harmless error
- trial proceeding - automatic reversal
- can still be used for impeachment
5th amendment right against self incrimination
Miranda warnings
- custodial interrogation
- must know they are being interrogated by government agent
custody
- reasonable person would not feel free to leave or terminate
interrogation
- knows or should know would likely elicit an incriminating response
Invocation of right to remain silent
- must honor
- may only question after significant time passed and remirandized -
may question on different crime if break and fresh warnings
invocation of right to counsel
- questioning must cease
- can reinitiate after release for 14 days
violation
- inadmissible at trial but can be used for impeachment
public safety exception
Photo line up due process
can attack for violating due process if
-unnecessarily suggestive
-substantial likelihood of misidentification
remedy
- exclude in-court identification unless it has an independent source
Exceptions to fruits of the poisonous tree
Fruits derived from violation of miranda
Independent sources
Attenuation - intervening circumstances
acts of free will
inevitable discovery
violations of knock and announce
Exclusionary rule does not apply to
grand jury, parole revocation, civil proceedings, when evident obtained contrary only to state law or agency rules
Grand jury proceedsings
conducted in secret
D has no right to notice, to be present and confront witnesses, or to introduce evidence
no right to counsel or miranda warnings
no right to have evidence excluded
no right to challenge subpoena
if minority group excluded - conviction resulting from indictment reversed without regard to harmless error
Speedy trial
Totality of the circumstances : LARP
Length of delay
assertion of right
reason for delay
prejudice to D
right attaches when arrested or charged
Incompetent to stand trial
mental condition at the time of trial
1) lacks a rational and factual understanding of the charges and proceedings
2) lacks sufficient present ability to consult with their lawyer with a reasonable degree of understanding
Jury and Voir Dire
Right to venire selected from representative cross-section of community
peremptory challenges - any reason that is not based on gender or race
D can question on racial bias if race is bound up in the case or if it is an interracial capital case
Ineffective assistance of counsel
Deficient performance and prejudice
must allege specific deficiencies, cannot be
- inexperience
-lack of time to prepare
-gravity of charges
-complexity of defense
-accessibility of witness to counsel
-trial tactics
