Crim Pro Flashcards
A seizure occurs when
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?
Terry Stops (Stop and Frisk) require
a reasonable suspicion based on articulable facts to believe suspect is or is about to engage in criminal conduct
During a Terry stop an officer can
pat down a detainee for weapons but cannot frisk for evidence (unless identity of contraband is obvious to the officer)
If probable cause arises during a Terry stop the officer can
make an arrest
Traffic stops require
reasonable suspicion
Note: Not needed if everyone is pulled over (e.g. sobriety checkpoint)
Arrests require
probably cause to believe that the arrested individual has committed a crime
Note: Pre-text stops are OK
Elements of an Arrest Warrant
(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
Arresting an individual in a 3rd party’s home requires
a search warrant for the 3rd party’s home
Absent an arrest warrant officers can only make an arrest inside a dwelling if
(1) There are exigent circumstances (e.g. felony hot pursuit / danger to others), OR
(2) There is consent to enter
Warrantless arrests are OK when
(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
An illegal arrest does not
prevent prosecution of the defendant but may lead to an exclusion of evidence
Purpose of SILA
(1) Protect officers from weapons or other danger, and
(2) Prevent destruction or concealment of evidence
Allowable search areas of SILA
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
Impounded cars may be searched if
done in accordance with inventorying purposes
A “Search” occurs when
government conduct violates a reasonable expectation of privacy
Government conduct constituting a search can be either
By physical intrusion (e.g. drug smelling dog) or non-physical intrusion (thermal imagining)
Search warrants must
(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
Places where people enjoy an expectation of privacy
(1) houses
(2) hotel rooms
(3) offices
(4) luggage
(5) Curtilage
Exceptions to the Warrant Requirement
ESCAPES
Exigent Circumstances, SILA, Consent, Automobiles, Plain View (No REP), Evidence obtained from administrative searches, Stop and Frisk
Exigent circumstances are
hot pursuit / immediate danger (cannot be created BY the police)
Voluntary consent (e.g. to enter a dwelling) is applicable only to
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
Automobile Exception allows for
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
Plain view / Plain smell requires
Officers to be legally present
Evidence obtained by Administrative searches refers to
(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)
Fifth Amendment right against self-incrimination is limited to
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)
Miranda warnings attach once there is
custodial interrogation
Custodial means
defendant has been arrested or is not otherwise free to leave
“Interrogation” involves
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
Miranda warnings
(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
Police must cease questioning if
(1) D affirmatively invokes right to remain silent, OR
(2) D affirmatively invokes right to counsel
Police can resume interrogation after right to remain silent is invoked if
A substantial period of time has passed and fresh warnings are given
Police can resume interrogation after right to counsel is invoked if
Defendant affirmatively initiates contact (or lawyer is present)
Confessions must be
voluntary but CAN be the product of deceit
Involuntarily obtained statements are
never admissible against a defendant and convictions may be overturned depending on harmless error rule
Statements in violation of miranda are
admissible to impeach D credibility but inadmissible in prosecutor’s case in chief
The 6th and 5th Amendment rights to counsel differ in that
6th amend attaches automatically if there has been indictment or other formal charges (unless knowingly and voluntarily waived)
5th amend must be affirmatively invoked
6th amendment right to counsel is
offense specific and applies whether D is in custodial interrogation or not
(compare with 5th amendment miranda which applies to any charge)
Critical stages of prosecution include
(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
Neither defendant nor lawyer has right to be present during
photo array identification (but police must turn over the array to the defendant and lawyer after)
Evidence of identification by lineup may be suppressed if
the lineup was impermissibly suggestive AND there is a substantial likelihood of misidentification because of such suggestiveness
Generally, evidence obtained illegally either by search, statement or physically identified is
inadmissible at the criminal trial of the person who’s rights were violated
Standing requires violation of
defendant’s rights, not a third party
Exception: Passengers in a car where stop was unconstitutional
Fruit of the Poisonous Tree rule
Exclusionary rule also applies to evidence obtained as a result of the initial violation
Exceptions to Exclusionary Rule
(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)
Good Faith exception of Exclusionary Rule applies when
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
Exclusionary rule is only relevant if there has been a
constitutional violation in the first place (4th, 5th, 6th amendments)
Harmless Error Rule
If this evidence had not been admitted, would it make a difference to the outcome?
All federal felony charges must be initiated by
an indictment, which requires probable cause
Grand juries can consider evidence that
has been obtained illegally or is otherwise inadmissible hearsay
Grand jury proceedings are
held in secret and need not be unanimous
Note: Defendant does not have right to testify or call witnesses
Guilty pleas require the defendant be
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
The general rule regarding Bail is that it
cannot be excessive and is available unless the defendant poses a flight risk or danger to the community
Juries for criminal trials must represent a
fair cross section of the community
Jurors may be excluded
for cause or by preemptory challenge (cannot be done on basis of race or sex)
SoL begins to run
when the crime occurs (generally) or when the crime ends for continuing offenses (e.g. conspiracy)
Factors used to assess whether Speedy Trial Clause was violated
(1) Length of delay
(2) Reasons for delay
(3) Whether defendant asserted right to speedy trial
(4) Risk of prejudice
Testimonial statements are inadmissible if
(1) Declarant is unavailable and
(2) Defendant had no prior opportunity to c-x
Under the Bruton doctrine a defendant’s own statements
are always admissible against him but not admissible against a co-defendant
The prosecution must prove __ but the defendant may be burdened to prove __
every element of the crime beyond a reasonable doubt (cannot be shifted to the defendant)
affirmative defenses
Under the Brady doctrine, a prosecutor must
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
A prosecutor may not
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
Standard for counsel defendants are entitled to is
effective assistance of counsel
If there is a potential conflict of interest for defense counsel
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
Test for Effective Assistance of counsel
(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
Defendant who proceeds “pro se” is
not entitled to a “back up” lawyer
Capital punishment may only be granted in cases where
the victim dies
The death penalty cannot be given to defendants who
(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
The 8th amendment only attaches when
defendant has been convicted of a crime
The double jeopardy clause prevents
subsequent prosecution for the same offense after:
(1) an acquittal
(2) a conviction
OR against multiple prosecutions / punishments for the same offense
Blockburger Test for assessing Double Jeopardy
Ask whether each statutory provision requires proof of an element that the other does not (if so, different crimes)
Exceptions to same offense test
(1) Offenses with different victims are separate
(2) Two different sovereign states have jurisdiction over a crime they can each try separately
Jeopardy attaches when the
jury is sworn in or, if a bench trial, when the first witness is sworn in
Kinds of Mistrials
(1) Manifest necessity: Defendant can be retried (e.g. deadlocked jury)
(2) No manifest necessity: Defendant cannot be retried
Apprendi Doctrine (6th amendment)
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
Physical evidence obtained as a result of a non-Mirandized statement is
admissible so long as the statement was voluntary (not coerced - the product of physical force, threats, or psychological pressure)
An accomplice to felony murder who did not kill, attempt to kill, or intend to kill cannot be sentenced to death unless the accomplice
(1) significantly participated in the commission of the underlying felony and
(2) acted with reckless indifference to human life.
Due process prohibits the use of mandatory presumptions—i.e., conclusions that MUST be drawn from basic facts—against a criminal defendant regarding
an element of the charged crime
School officials need only have
a reasonable suspicion that a student is violating (or has violated) the law or school rules to search that student
The automobile exception does not apply to
individuals who are, or have been, a passenger in the vehicle (still need warrant for that)
Double jeopardy bars a subsequent prosecution for the greater offense unless
(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.
The erroneous denial of a defendant’s choice of counsel constitutes
structural error and requires automatic reversal of the defendant’s conviction
Any fact, other than a prior conviction, that can be used to increase a sentence beyond the statutorily prescribed maximum must be
(1) charged in an indictment,
(2) submitted to a jury, and
(3) established beyond a reasonable doubt.
A fact is considered an element of a crime, as opposed to a sentencing enhancement, when it
can increase the maximum sentence imposed
A mandatory presumption regarding an element of an offense
violates the due-process requirement
(Could take the form of either a conclusive presumption or a mandatory rebuttable presumption)
Police may re-open interrogation of an inmate after they invoke the 5th amendment right to counsel after
14 days (and fresh warnings are given)
Due Process does not apply to affirmative defenses (e.g. insanity) so state law can
require defendant to prove an affirmative defense by any standard or modify (or eliminate) an affirmative defense
Crimes generally require proof of concurrence, which means
the defendant had the requisite mens rea at the time the actus reus was actuated and committed
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
(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
Under the 6th amendment right to a speedy trial, the time period for measuring the right commences at
the time of arrest or formal charge, whichever comes first
In order to impose the death penalty, the aggravating circumstance involved cannot
be unconstitutionally vague
When it comes to waiver for a potential conflict of interest claim among co-defendants using the same counsel, the court
is not required to accept such a waiver
While traffic stops restrain freedom of movement, they do not
give rise to custody for Miranda purposes
Crying is not considered
testimonial (which is information protected by Miranda)
Self-incriminating testimony can still be compelled if
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)
The standard for assessing whether a conflict of interest amounted to an ineffective assistance of counsel is
(1) there was an actual conflict of interest and
(2) such conflict adversely affected the attorney’s performance
Due process prohibits the imposition of 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
When charged with a serious offense (imprisonment of over 6 months), a judge directing the jury to return a guilty verdict results in
an automatic reversal on appeal
Violates 6th amendment right to jury trial
5th amendment right against self-incrimination protects testimonial evidence, which does NOT include
Non-testimonial physical evidence (e.g. blood or voice samples)
The exclusionary rule applies to
criminal prosecutions, not civil actions (e.g. wrongful death)
Under the “Dual Sovereignty” doctrine, prosecution of a defendant by the federal government for a crime arising out of an event does not
prevent a state from prosecuting the defendant for a crime arising out of the same event
A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within
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
If a defendant challenges a warrant for including false information (goes beyond the “facial validity” of the warrant), they must prove
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
The 6th amendment right to counsel provides a constitutional right to counsel in any case in which
the defendant is sentenced to incarceration, even if the sentence is suspended (therefore, if D is only sentenced to a fine, no violation)
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
an unreasonable search
Violation of one’s 4th amendment rights may warrant suppression of evidence, but may not be used to
dismiss an indictment
To show that a prior identification was not impermissibly suggestive with a substantial likelihood of misidentification (that the ID was reliable), a court considers
(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
