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Crim Pro Flashcards

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1
Q

A seizure occurs when

A

an officer by means of (1) physical contact or (2) show of authority intentionally terminates or restrains a person’s freedom of movement

Test: would a reasonable person feel free to disregard the officer?

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2
Q

Terry Stops (Stop and Frisk) require

A

a reasonable suspicion based on articulable facts to believe suspect is or is about to engage in criminal conduct

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3
Q

During a Terry stop an officer can

A

pat down a detainee for weapons but cannot frisk for evidence (unless identity of contraband is obvious to the officer)

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4
Q

If probable cause arises during a Terry stop the officer can

A

make an arrest

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5
Q

Traffic stops require

A

reasonable suspicion

Note: Not needed if everyone is pulled over (e.g. sobriety checkpoint)

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6
Q

Arrests require

A

probably cause to believe that the arrested individual has committed a crime

Note: Pre-text stops are OK

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7
Q

Elements of an Arrest Warrant

A

(1) Neutral and detached magistrate
(2) Based on a finding of probable cause to believe named individual committed a particular crime
(3) Name person and identify offense

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8
Q

Arresting an individual in a 3rd party’s home requires

A

a search warrant for the 3rd party’s home

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9
Q

Absent an arrest warrant officers can only make an arrest inside a dwelling if

A

(1) There are exigent circumstances (e.g. felony hot pursuit / danger to others), OR
(2) There is consent to enter

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10
Q

Warrantless arrests are OK when

A

(1) Crime was committed in officer’s presence or based on probable cause to believe individual committed a felony, OR
(2) For a felony if crime was not committed in officer’s presence

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11
Q

An illegal arrest does not

A

prevent prosecution of the defendant but may lead to an exclusion of evidence

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12
Q

Purpose of SILA

A

(1) Protect officers from weapons or other danger, and
(2) Prevent destruction or concealment of evidence

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13
Q

Allowable search areas of SILA

A

On the street: Suspect + their wingspan

At home: Suspect + immediate arrest area

In a car: May search passenger compartment as long as suspect still has access to the vehicle at the time

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14
Q

Impounded cars may be searched if

A

done in accordance with inventorying purposes

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15
Q

A “Search” occurs when

A

government conduct violates a reasonable expectation of privacy

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16
Q

Government conduct constituting a search can be either

A

By physical intrusion (e.g. drug smelling dog) or non-physical intrusion (thermal imagining)

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17
Q

Search warrants must

A

(1) be issued by a neutral magistrate
(2) Be based on showing probable cause to believe items sought are fruits, instrumentalities, or evidence of crime
(3) Must describe the property and place to be searched with particularity

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18
Q

Places where people enjoy an expectation of privacy

A

(1) houses
(2) hotel rooms
(3) offices
(4) luggage
(5) Curtilage

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19
Q

Exceptions to the Warrant Requirement

A

ESCAPES

Exigent Circumstances, SILA, Consent, Automobiles, Plain View (No REP), Evidence obtained from administrative searches, Stop and Frisk

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20
Q

Exigent circumstances are

A

hot pursuit / immediate danger (cannot be created BY the police)

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21
Q

Voluntary consent (e.g. to enter a dwelling) is applicable only to

A

the individual who gave consent (officer need not inform person they have the right to refuse)

Think roommates where one gives consent and the other doesn’t

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22
Q

Automobile Exception allows for

A

Search within passenger compartment (SILA) and

If there’s probable cause to believe Automobile contains contraband, can search those parts of the vehicles that might contain contraband even without an arrest

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23
Q

Plain view / Plain smell requires

A

Officers to be legally present

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24
Q

Evidence obtained by Administrative searches refers to

A

(1) Administrative warrants (e.g. fire or health inspections)
(2) Airplane boarding areas
(3) International borders
(4) Highly regulated industries (e.g. liquor stores, gun shops, searches of students in public schools)

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25
Q

Fifth Amendment right against self-incrimination is limited to

A

Natural persons and testimonial evidence (not physical i.e. blood tests or handwriting exemplars) made to the government

Note: Does not apply to evidence which may subject person to CIVIL liability or to corporations (e.g. custodians of corporate records)

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26
Q

Miranda warnings attach once there is

A

custodial interrogation

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27
Q

Custodial means

A

defendant has been arrested or is not otherwise free to leave

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28
Q

“Interrogation” involves

A

Asking questions or engaging in words or conduct known or should have been known to elicit a response

Does not include voluntary statements or routine booking questions

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29
Q

Miranda warnings

A

(1) Right to remain silent
(2) Anything statement made may be used against you in court of law
(3) You have right to consult an attorney and have an attorney present at questioning
(4) If you cannot afford one an attorney will be appointed for you

Note: D must UNDERSTAND the rights (hear and comprehend)

Are exempted if public safety is at risk

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30
Q

Police must cease questioning if

A

(1) D affirmatively invokes right to remain silent, OR
(2) D affirmatively invokes right to counsel

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31
Q

Police can resume interrogation after right to remain silent is invoked if

A

A substantial period of time has passed and fresh warnings are given

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32
Q

Police can resume interrogation after right to counsel is invoked if

A

Defendant affirmatively initiates contact (or lawyer is present)

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33
Q

Confessions must be

A

voluntary but CAN be the product of deceit

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34
Q

Involuntarily obtained statements are

A

never admissible against a defendant and convictions may be overturned depending on harmless error rule

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35
Q

Statements in violation of miranda are

A

admissible to impeach D credibility but inadmissible in prosecutor’s case in chief

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36
Q

The 6th and 5th Amendment rights to counsel differ in that

A

6th amend attaches automatically if there has been indictment or other formal charges (unless knowingly and voluntarily waived)

5th amend must be affirmatively invoked

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37
Q

6th amendment right to counsel is

A

offense specific and applies whether D is in custodial interrogation or not

(compare with 5th amendment miranda which applies to any charge)

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38
Q

Critical stages of prosecution include

A

(1) Evidentiary hearings (i.e. suppression hearings)
(2) Post-indictment lineups
(3) Post-indictment interrogations
(4) All parts of trial process including plea and sentencing

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39
Q

Neither defendant nor lawyer has right to be present during

A

photo array identification (but police must turn over the array to the defendant and lawyer after)

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40
Q

Evidence of identification by lineup may be suppressed if

A

the lineup was impermissibly suggestive AND there is a substantial likelihood of misidentification because of such suggestiveness

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41
Q

Generally, evidence obtained illegally either by search, statement or physically identified is

A

inadmissible at the criminal trial of the person who’s rights were violated

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42
Q

Standing requires violation of

A

defendant’s rights, not a third party

Exception: Passengers in a car where stop was unconstitutional

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43
Q

Fruit of the Poisonous Tree rule

A

Exclusionary rule also applies to evidence obtained as a result of the initial violation

44
Q

Exceptions to Exclusionary Rule

A

(1) Knock and Announce
(2) Inevitable discovery
(3) Independent source
(4) Attenuation in the causal chain (intervening events and passage of time)
(5) Good Faith
(1/2) Negligence (exclusionary rule could meaningfully deter)

45
Q

Good Faith exception of Exclusionary Rule applies when

A

Officers relied in good faith on
(1) An existing law later declared unconstitutional
(2) Warrant that, while facially valid, was later found defective
(3) Otherwise believe conduct is constitutional

46
Q

Exclusionary rule is only relevant if there has been a

A

constitutional violation in the first place (4th, 5th, 6th amendments)

47
Q

Harmless Error Rule

A

If this evidence had not been admitted, would it make a difference to the outcome?

48
Q

All federal felony charges must be initiated by

A

an indictment, which requires probable cause

49
Q

Grand juries can consider evidence that

A

has been obtained illegally or is otherwise inadmissible hearsay

50
Q

Grand jury proceedings are

A

held in secret and need not be unanimous

Note: Defendant does not have right to testify or call witnesses

51
Q

Guilty pleas require the defendant be

A

competent (understand nature of proceedings & assist in own defense) to stand trial and knowingly and intelligently waive his rights

(1) Nature of the charge and critical elements
(2) Max and min penalties
(3) Right to not plead guilty
(4) Waiving right to trial

52
Q

The general rule regarding Bail is that it

A

cannot be excessive and is available unless the defendant poses a flight risk or danger to the community

53
Q

Juries for criminal trials must represent a

A

fair cross section of the community

54
Q

Jurors may be excluded

A

for cause or by preemptory challenge (cannot be done on basis of race or sex)

55
Q

SoL begins to run

A

when the crime occurs (generally) or when the crime ends for continuing offenses (e.g. conspiracy)

56
Q

Factors used to assess whether Speedy Trial Clause was violated

A

(1) Length of delay
(2) Reasons for delay
(3) Whether defendant asserted right to speedy trial
(4) Risk of prejudice

57
Q

Testimonial statements are inadmissible if

A

(1) Declarant is unavailable and
(2) Defendant had no prior opportunity to c-x

58
Q

Under the Bruton doctrine a defendant’s own statements

A

are always admissible against him but not admissible against a co-defendant

59
Q

The prosecution must prove __ but the defendant may be burdened to prove __

A

every element of the crime beyond a reasonable doubt (cannot be shifted to the defendant)

affirmative defenses

60
Q

Under the Brady doctrine, a prosecutor must

A

Turn over all material exculpatory evidence including evidence that (1) tends to show defendant is not guilty of crime charged and (2) would enable defense to impeach credibility of prosecution’s witnesses

61
Q

A prosecutor may not

A

knowingly present false testimony, contact defendant outside the presence of his counsel after 6th amendment attaches, and comment on a defendant’s failure to testify at trial

Note: Prosecutor MAY comment on silence prior to Miranda warnings

62
Q

Standard for counsel defendants are entitled to is

A

effective assistance of counsel

63
Q

If there is a potential conflict of interest for defense counsel

A

The judge must warn defendants of the risk (e.g. joint counsel) and give opportunity to get separate counsel

If defendants wish to proceed with joint representation, need affirmative waiver

64
Q

Test for Effective Assistance of counsel

A

(1) Did defense counsel’s performance fall below wide range of reasonable conduct that lawyers might engage in, and
(2) There is a reasonable probability that, had counsel been performed effectively, the result would have been different

65
Q

Defendant who proceeds “pro se” is

A

not entitled to a “back up” lawyer

66
Q

Capital punishment may only be granted in cases where

A

the victim dies

67
Q

The death penalty cannot be given to defendants who

A

(1) were under 18 when they committed the crime,
(2) suffer from cognitive impairment
(3) are insane at the time of execution
(4) did not commit a homicidal crime

68
Q

The 8th amendment only attaches when

A

defendant has been convicted of a crime

69
Q

The double jeopardy clause prevents

A

subsequent prosecution for the same offense after:
(1) an acquittal
(2) a conviction
OR against multiple prosecutions / punishments for the same offense

70
Q

Blockburger Test for assessing Double Jeopardy

A

Ask whether each statutory provision requires proof of an element that the other does not (if so, different crimes)

71
Q

Exceptions to same offense test

A

(1) Offenses with different victims are separate
(2) Two different sovereign states have jurisdiction over a crime they can each try separately

72
Q

Jeopardy attaches when the

A

jury is sworn in or, if a bench trial, when the first witness is sworn in

73
Q

Kinds of Mistrials

A

(1) Manifest necessity: Defendant can be retried (e.g. deadlocked jury)

(2) No manifest necessity: Defendant cannot be retried

74
Q

Apprendi Doctrine (6th amendment)

A

Judge cannot enhance criminal sentence beyond statutory maximum based on facts other than those decided by jury

Exception: Statutory enhancement based on prior criminal convictions can be done exclusively by judge

75
Q

Physical evidence obtained as a result of a non-Mirandized statement is

A

admissible so long as the statement was voluntary (not coerced - the product of physical force, threats, or psychological pressure)

76
Q

An accomplice to felony murder who did not kill, attempt to kill, or intend to kill cannot be sentenced to death unless the accomplice

A

(1) significantly participated in the commission of the underlying felony and
(2) acted with reckless indifference to human life.

77
Q

Due process prohibits the use of mandatory presumptions—i.e., conclusions that MUST be drawn from basic facts—against a criminal defendant regarding

A

an element of the charged crime

78
Q

School officials need only have

A

a reasonable suspicion that a student is violating (or has violated) the law or school rules to search that student

79
Q

The automobile exception does not apply to

A

individuals who are, or have been, a passenger in the vehicle (still need warrant for that)

80
Q

Double jeopardy bars a subsequent prosecution for the greater offense unless

A

(1) an event necessary to establish the greater offense occurred after the plea was entered or
(2) the greater offense was charged before the plea was entered.

81
Q

The erroneous denial of a defendant’s choice of counsel constitutes

A

structural error and requires automatic reversal of the defendant’s conviction

82
Q

Any fact, other than a prior conviction, that can be used to increase a sentence beyond the statutorily prescribed maximum must be

A

(1) charged in an indictment,
(2) submitted to a jury, and
(3) established beyond a reasonable doubt.

83
Q

A fact is considered an element of a crime, as opposed to a sentencing enhancement, when it

A

can increase the maximum sentence imposed

84
Q

A mandatory presumption regarding an element of an offense

A

violates the due-process requirement

(Could take the form of either a conclusive presumption or a mandatory rebuttable presumption)

85
Q

Police may re-open interrogation of an inmate after they invoke the 5th amendment right to counsel after

A

14 days (and fresh warnings are given)

86
Q

Due Process does not apply to affirmative defenses (e.g. insanity) so state law can

A

require defendant to prove an affirmative defense by any standard or modify (or eliminate) an affirmative defense

87
Q

Crimes generally require proof of concurrence, which means

A

the defendant had the requisite mens rea at the time the actus reus was actuated and committed

88
Q

When a non-testifying co-defendant’s prior statement is introduced implicating the other defendant, the other defendant’s 6th amendment confrontation clause is violated unless

A

(1) All portions referring to the other defendant are eliminated,
(2) the non-testifying co-defendant testifies during the trial OR
(3) the confession is used to rebut the other defendant’s argument that his confession was obtained involuntarily

89
Q

Under the 6th amendment right to a speedy trial, the time period for measuring the right commences at

A

the time of arrest or formal charge, whichever comes first

90
Q

In order to impose the death penalty, the aggravating circumstance involved cannot

A

be unconstitutionally vague

91
Q

When it comes to waiver for a potential conflict of interest claim among co-defendants using the same counsel, the court

A

is not required to accept such a waiver

92
Q

While traffic stops restrain freedom of movement, they do not

A

give rise to custody for Miranda purposes

93
Q

Crying is not considered

A

testimonial (which is information protected by Miranda)

94
Q

Self-incriminating testimony can still be compelled if

A

the government grants use and derivative use immunity (prevents government from using self-incriminating testimonial communications against the suspect in any way that could lead to a criminal prosecution)

OR transactional immunity (protects suspect from being prosecuted for any crimes associated with self-incriminating testimonial communications)

95
Q

The standard for assessing whether a conflict of interest amounted to an ineffective assistance of counsel is

A

(1) there was an actual conflict of interest and
(2) such conflict adversely affected the attorney’s performance

96
Q

Due process prohibits the imposition of a

A

harsher sentence upon retrial of a defendant who successfully appealed a conviction when the harsher sentence is punishment for exercising the right to appeal

97
Q

When charged with a serious offense (imprisonment of over 6 months), a judge directing the jury to return a guilty verdict results in

A

an automatic reversal on appeal

Violates 6th amendment right to jury trial

98
Q

5th amendment right against self-incrimination protects testimonial evidence, which does NOT include

A

Non-testimonial physical evidence (e.g. blood or voice samples)

99
Q

The exclusionary rule applies to

A

criminal prosecutions, not civil actions (e.g. wrongful death)

100
Q

Under the “Dual Sovereignty” doctrine, prosecution of a defendant by the federal government for a crime arising out of an event does not

A

prevent a state from prosecuting the defendant for a crime arising out of the same event

101
Q

A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within

A

48 hours of the defendant’s arrest.

NOTE: There is no need for a preliminary hearing if probably cause has been established by grand jury indictment or arrest warrant

102
Q

If a defendant challenges a warrant for including false information (goes beyond the “facial validity” of the warrant), they must prove

A

by a preponderance of the evidence that the false information was knowingly, intentionally, or with reckless disregard for its truthfulness included AND necessary for a finding of probable cause by the magistrate

Note: negligence is NOT enough

103
Q

The 6th amendment right to counsel provides a constitutional right to counsel in any case in which

A

the defendant is sentenced to incarceration, even if the sentence is suspended (therefore, if D is only sentenced to a fine, no violation)

104
Q

If the police have no reasonable suspicion that a car contains drugs, a dog sniff that prolongs an otherwise valid traffic stop beyond the time reasonably needed to complete the stop constitutes

A

an unreasonable search

105
Q

Violation of one’s 4th amendment rights may warrant suppression of evidence, but may not be used to

A

dismiss an indictment

106
Q

To show that a prior identification was not impermissibly suggestive with a substantial likelihood of misidentification (that the ID was reliable), a court considers

A

(1) the witness’s opportunity to view the defendant at the time of the crime
(2) the witness’s degree of attention at the time of the crime
(3) the accuracy of the witness’s description of the defendant prior to the identification
(4) the level of certainty at the time of the identification; and
(5) the length of time between the crime and the identification

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