Crim. Pro

Question 1

When may a warrant be struck down based on a false statement in the underlying affidavit?

Answer 1

The false statement was intentionally or recklessly included in the affidavit, and was material to the finding of probable cause.

Question 2

When does double jeopardy permit cumulative sentences for the same offense?

Answer 2

When there is legislative intent to impose multiple punishments

Question 3

When may a school official search a student and their possessions?

Answer 3

If they have reasonable grounds, and

1. There is a moderate chance of finding evidence of wrongdoing
2. The measures adopted are reasonably related to the objective of the search
3. The search is not excessively intrusive in light of the age of the student and nature of the infraction

Question 4

When may police question a detainee who has invoked the right to counsel, in the context of the 5thA privilege against self incrimination?

Answer 4

1) When counsel is present or the detainee has reinitiated questioning OR

2) When the detainee has been re-Mirandized, knowingly/voluntarily waives their right to counsel, and has been released from custody for at least 14 days

Question 5

What is the standard for determining if a confession violates the Due Process Clause of the 14th Amendment?

Answer 5

The confession resulted from official compulsion which overcame the defendant’s free will.

Question 6

What is the exclusionary rule?

Answer 6

Evidence obtained in violation of the 4th, 5th, and 6th Amendment, and any fruit of the poisonous tree, will not be admissible at trial.

Question 7

What are the exceptions to the fruit of the poisonous tree doctrine?

Answer 7

Independent source, intervening circumstances, inevitable discovery

Question 8

What is the harmless error test?

Answer 8

A conviction based on illegally obtained evidence may be upheld if the prosecution shows beyond a reasonable doubt that the conviction would have resulted without the illegally obtained evidence // other “overwhelming evidence of guilt.”

Question 9

What are the six exceptions which allow evidentiary searches and seizures without a warrant?

Answer 9

Search incident to Constitutional arrest, automobile exception, consent, plain view, Terry “stop and frisk,” and hot pursuit/evanescent evidence/emergency aid.

Question 10

In what areas does a person always have a reasonable expectation of privacy sufficient to confer standing to challenge an evidentiary search/seizure?

Answer 10

In real property that that person owns/has a right of possession to (unless they are owner/operator of commercial property in highly regulated industry), in the person’s home (regardless of ownership), or in the home of another where the person is an overnight guest.

Question 11

When does a person have standing as to personal property that they own?

Answer 11

When the person has a reasonable expectation of privacy in the item or in the place searched.

Question 12

What is the “plain view” exception to the warrant requirement?

Answer 12

When officers are legitimately on the premises, they may lawfully seize any evidence in plain view if it is immediately apparent that the evidence is the fruit or instrumentality of a crime.

Question 13

What is the “same scheme” exception to the exclusionary rule regarding statements procured in violation of a defendant’s Miranda rights?

Answer 13

If police obtain a confession in violation of Miranda but later give Miranda warnings, the confession and derivative evidence are admissible if it does not appear that the violation was the result of a scheme to avoid Miranda requirements.

Question 14

What are the exceptions to the double jeopardy rule?

Answer 14

1) First trial resulted in a hung jury
2) The first trial was discontinued due to manifest necessity or at behest of D
3) The conviction of the first trial was overturned on appeal for reasons other than the sufficiency of evidence (but second trial may not be for charge greater than D was convicted of)
4) D breaches their plea bargain
5) D elects to have charges tried separately

Question 15

What information must a judge ensure a defendant understands, to ensure that a guilty plea is knowing and voluntary?

Answer 15

The nature of the charges against them/crucial elements, the maximum possible and mandatory minimum sentences, that they waive their right to a jury trial, that they do not have to plead guilty

Question 16

When does the 6thA allow introduction of a co-defendant’s confession implicating the defendant?

Answer 16

When portions of the confession implicating the defendant can be removed, when the co-defendant takes the stand and subjects themself to cross examination as to the truth/falsity of the confession, or when the confession is admitted to refute claims that the defendant’s confession was procured coercively

Question 17

When does jeopardy attach?

Answer 17

In a jury trial, when the jury is empaneled and sworn in. In a bench trial, when the first witness is sworn in.

Question 18

What is the “new evidence” exception to the double jeopardy rule?

Answer 18

A person tried for a lesser included offense can subsequently be charged for the greater offense if at the time of the earlier trial the conduct creating liability for the greater offense had not occurred or evidence had not been discovered despite due diligence.

Question 19

To what types of proceedings does the double jeopardy rule not apply?

Answer 19

To civil proceedings, or subsequent trials for the same offense by a different sovereign.

Question 20

When do two crimes constitute the “same offense” for purposes of the double jeopardy rule?

Answer 20

When each crime requires proof of an element that the other crime does not.

Question 21

When may police lawfully conduct a Terry stop?

Answer 21

When they have reasonable suspicion of criminal activity, based on articulable facts

Question 22

When may police frisk a detainee during a Terry stop?

Answer 22

When they reasonably believe that the person is armed and dangerous.

Question 23

When may police stop cars at informational checkpoints and roadblocks?

Answer 23

When there is a special law enforcement need to stop cars without individualized suspicion, cars are stopped based on a neutral/articulable standard, and the roadblock is designed to serve purposes closely related to a particular problem with automobiles or their mobility

Question 24

What is the automobile exception to the warrant requirement?

Answer 24

When the police have probable cause to believe a vehicle contains the fruits/instrumentalities of a crime, they may search the entire vehicle and any container therein that might reasonably contain the contraband.

Question 25

What is the general rule regarding the 6th Amendment right to counsel?

Answer 25

A person has a right to counsel at all critical stages of a prosecution after criminal proceedings have begun.

Question 26

What must an individual allege to claim ineffective assistance of counsel?

Answer 26

A deficiency in the performance of counsel, and that but-for the deficiency, there is a reasonable probability that the outcome of the proceeding would have been different.

Question 27

When does a criminal defendant have the right to a jury trial?

Answer 27

In any trial for a “serious” offense authorizing imprisonment for six months or more.

Question 28

When is a defendant incompetent to stand trial?

Answer 28

When they are unable to understand the nature of the proceedings against them OR are unable to assist their attorney in the preparation of their defense

Question 29

What type of evidence is protected by the 5thA privilege against self-incrimination?

Answer 29

Compelled, testimonial evidence

Question 30

What are examples of nontestimonial evidence not protected under the 5thA?

Answer 30

Real/physical evidence such as handwriting exemplars, voice identification, blood/hair/DNA samples, document seizure

Question 31

What actions are allowed pursuant to a search incident to arrest?

Answer 31

1) Search of arrestee and anywhere in his wingspan where he might reach for a weapon

2) Protective sweep for accomplices

3) Search of an automobile passenger compartment, if arrestee is unsecured OR police have reason to believe evidence of the crime will be discovered

4) Inventory search of the arrestee’s vehicle pursuant to department policy

Question 32

What is an exception to the exclusionary rule for statements obtained in violation of Miranda or the 6thA right to counsel?

Answer 32

Statements can be used to impeach D!

Question 33

When must a judge give a requested jury instruction in a criminal case?

Answer 33

When the instruction is correct, it has not already been given, and it is supported by some evidence

Question 34

Who may invoke the 5thA privilege against self-incrimination, and when?

Answer 34

ANY natural person (not a corp.) in ANY case when the answer to a question would tend to incriminate them.

Question 35

Who may consent to a search under the consent exception to the warrant requirement?

Answer 35

Anyone with apparent authority to use or occupy the space

Question 36

When may a criminal defendant represent themselves?

Answer 36

When a court determines that D waiver of right to counsel is knowing and voluntary, and that D is competent to proceed pro se

Question 37

What is the rule regarding whether police may search persons on premises that they have a valid search warrant for?

Answer 37

The police may detain persons present on the premises, but may not search them unless they are named in the warrant.

Question 38

When are non testimonial fruits of Miranda violations admissible?

Answer 38

If the failure to give Miranda warnings was not purposeful

Question 39

What is considered government conduct for the purposes of 4thA protections?

Answer 39

The Fourth Amendment applies to actions by the police, agents of the government, or private individuals acting at the direction of the police.

Question 40

What factors are relevant to determining when interrogation is “custodial” for Miranda purposes?

Answer 40

Consider how closely situation resembles a formal arrest (was suspect physically restrained/told they were arrested, who initiated the encounter)

Question 41

When is a prosecution’s failure to disclose material exculpatory evidence grounds for reversal of D conviction?

Answer 41

1) The evidence is favorable to D because it impeaches or is exculpatory

2) Prejudice has resulted (rez. probability that result of the case would have been different)