Crim Pro

Question 1

Seizure

Answer 1

By means of (1) physical force, or (2) show of authority, a person’s freedom of movement is restrained.

Question 2

Exceptions to search warrant

Answer 2

ESCAPES

E - Exigent circumstances
S - search incident to arrest
C - Consent
A - Automobiles
P - Plain view
E - Evidence obtained from administrative searches
S - Stop and Frisk

Question 3

When is a warrant required for a search?

Answer 3

(1) government conduct violates a
(2) reasonable expectation of privacy

Need a warrant unless exception applies

Question 4

Requirements for a valid search warrant

Answer 4

(1) issued by a neutral magistrate

(2) probable cause that items sought are fruits, instrumentalities, or evidence of crime

(3) property and place described with particularity

If invalid warrant, evidence excluded from prosecutor case in chief

Question 5

Three types of seizures

Answer 5

1 - stop and frisk - terry stop: reasonable suspicion, based on articulable facts. Allowed to pat down for weapons, and if pat down reveals obvious other evidence, allowed.

2 - traffic stop - same as terry stop, but if a checkpoint, don’t need reasonable suspicion.

3 - arrest - need probable cause. can be with or without warrant

Question 6

When can an arrest be made without a warrant?

Answer 6

(1) In public
(2) for crimes occuring in arresting officer’s presence
(3) if probable cause that D committed felony

If they did not witness, then can only arrest for a felony if probable cause. Cannot arrest for misdemeanor without warrant.

Inside a persons home ONLY IF exigent circumstances (hot pursuit - PC that D committed felony - or danger to others) OR if consent

Question 7

Elements for arrest warrant

Answer 7

(1) neutral and detached magistrate

(2) - probable cause that named individual committed crime

(3) - name person and identify defense

Question 8

Search incident to arrest

Answer 8

if arrest is lawful,

search of the person and immediate surrounding area to (1) protect officer from weapons or (2) prevent destruction or concealment of evidence.

Evidence can be used at trial

NOTE: in home, you can perform a protective sweep for people

This is different from a terry stop, because here an arrest occurs and officers have more liberty to search.

Question 9

Open fields

Answer 9

Even if private property, cannot have a reasonable expectation of privacy for open fields

Question 10

Limited expectation of privacy for cars

Answer 10

Warrantless search allowed incident to arrest if (1) arrestee is within reasonable distance from compartment and (2) inventory search of impounded vehicle.

Even without arrest, police can perform FULL search if probable cause that it contains contraband.

Question 11

Third party consent

Answer 11

A third party can give consent for the defendant. But if defendant is present and rejects, officer does not have consent.

To apply, there must be (1) an agency relationship or (2) defendant assumes risk

Question 12

Test to determine if ID procedure should be suppressed

Answer 12

(1) impermissibly suggestive
(2) substantial likelihood of misidentification

Prosecution can then try to prove that it was reliable

Question 13

Knock and anounce

Answer 13

when executing a search or arrest warrant, police need to knock and say its the police.

Failure to do so does not result in exclusionary rule.

Question 14

Exclusionary Rule

Answer 14

Evidence obtained in violation of the 4, 5, 6 amendment may not be introduced at trial to prove guilt (unless an exception applies)

Includes fruit of the poisonous tree - secondary evidence obtained only because of initial illegally obtained evidence

Question 15

Exceptions to Exclusionary Rule

Answer 15

Inevitable discovery—in same condition through lawful means

o Independent source—unrelated to tainted evidence

o Attenuation—passage of time and/or intervening events may purge primary taint

o Good faith

o Isolated police negligence—not enough to trigger the exclusionary rule; must be sufficiently deliberate that exclusion can meaningfully deter it

o Knock and announce—exclusionary rule doesn’t apply when police fail to knock and announce their presence

o In-court ID—not fruit of an unlawful detention

Question 16

Good faith exception to exclusionary rule

Answer 16

Applies if officer, in good faith, relies on (1) facially valid warrant later found to be invalid, or (2) existing law later found unconstitutional

does NOT apply if
1 - no reasonable officer would rely on affidavit of warrant
2 - warrant is facially defective
3 - warrant obtained by fraud
4 - magistrate wholly abandoned judicial role; or
5 - warrant was improperly executed

Question 17

Curtilage test

Answer 17

1 - proximity

2- whether it is enclosed

3 - nature of the uses

4 - steps taken to prevent observation

Question 18

How can defendant show ineffective assistance of counsel?

Answer 18

(1) rep fell below objective standard of reasonableness

(2) prejudice - reasonable probability that the outcome would have been different

If based on conflict of interest, it can presumptively be prejudicial without showing that they are innocent.

Question 19

Jury pool requirement

Answer 19

must be a reasonable cross section of community; but the final jury panel need not be

Question 20

Right to remain silent - Miranda Warning

Answer 20

You have to affirmatively state that you will remain silent. Mere silence does not trigger the officer’s duty to stop questioning

Question 21

Three exceptions to Miranda warnings

Answer 21

(1) public safety
(2) routine booking questions; and
(3) undercover police

Question 22

Court is required to find this to enter a valid guilty plea

Answer 22

Defendant entered (1) intelligently and (2) voluntarily.

voluntarily - cannot be by force

intelligently - knows and understands (i) nature of the charges, (ii) consequences of the plea, and (iii) rights the defendant is waiving

Question 23

Statements made in violation of Miranda warnings

Answer 23

Cannot be used in prosecutor’s case in chief, BUT
can be used to impeach defendant if made voluntarily (even if made in response to questions)

Question 24

Fruits of non-Mirandized statement

Answer 24

Derivative physical evidence IS admissible, so long as confession was not coerced. This is different than fruit of the poisonous tree from other violations.

Question 25

When are involuntarily obtained statements admissible?

Answer 25

NEVER; not even fruits of involuntarily statements are admissible.

Question 26

What are 6th Amendment Rights

Answer 26

right to jury, public trial, confront witnesses against him, cross-examine witnesses, be present at his own trial, and assistance of counsel for his defense

Question 27

Remedy for 6th Am right to counsel violation (guilty plea and conviction)

Answer 27

Guilty plea - Can withdraw plea and cannot be used as evidentiary admission

Conviction - automatically reverse even without showing of unfairness

Nontrial - harmless error rule

Question 28

6th right to counsel denied at a nontrial proceeding?

Answer 28

Denial subject to harmless error on appeal

Question 29

6th right to counsel and eyewitness ID procedures

Answer 29

lineups - right for post-indictment, no right for pre-indictment

photo arrays - no right to counsel, but police must turn over to defense

Question 30

Double jeopardy protection

Answer 30

1 - protection from second prosecution after acquittal

2 - protection from second prosecution after conviction; and

3 - protection against multiple punishments for same offense

Does not protect from criminal prosecution if civilly liable.

can be charged/convicted in federal and state court

Question 31

Transactional Immunity

Use and derivative- use Immunity

Answer 31

T - fully protects witness from prosecution for crimes related to her testimony

U - only precludes the prosecution from using witness’s testimony against the witness. This is the all that is required to compel testimony.

Question 32

Automobile exception

Answer 32

Justifies warrantless search of car if:

1 - police have probable cause to believe car contains evidence of crime; and
2 - search is limited to areas where evidence might be.

Question 33

Difference between Fifth and Sixth Amendment right to counsel

Answer 33

Fifth - applies when suspect is in custodial interrogation before judicial proceedings. It must be affirmatively invoked.

Sixth - attaches automatically upon commencement of judicial proceedings. Applies to all critical issues, but only for the specific offense.

Question 34

Blockburger test

Answer 34

This will come up in 6th Am right to counsel issues. Right to counsel attaches upon commencement of judicial proceeding for all critical issues, but ONLY for the specific offense and things that would be the same offense.

This also comes up for double-jeopardy analysis

Under the Blockburger test, two offenses are not the same if each of them have an element that the other does not.

Question 35

Brady Doctrine

Answer 35

Prosecutor has duty to disclose material exculpatory evidence
(1) evidence that tends to show defendant is not guilty

(2) evidence that would enable defense to impeach prosecution witnesses

Prosecutor NOT required to present exculpatory evidence to grand jury

Question 36

Use of prior convictions and double jeopardy

Answer 36

use of defendant’s prior convictions to enhance sentence does not violate double jeopardy

But, anything other than prior convictions to enhance sentence must be proved beyond reasonable doubt.

Question 37

Three strikes law and cruel and unusual punishment

Answer 37

does not violate this clause

Question 38

Two prongs to determine if Miranda warnings are needed

Answer 38

Custodial - substantial seizure (questioning at police station not automatically custodial)

Interrogation - questions or words/conduct likely to elicit info. Voluntary statements not protected.

Question 39

Admission of confession by co-defendant

Answer 39

This violates 6th Amendment unless neutral references to third party are used along with limiting instruction.

Question 40

Right to appeal

Answer 40

No constitutional right, but D does have a right to appointed counsel for first appeal as of right.

D does not have right to appointed counsel for discretionary appeal.

Question 41

Anonymous tip

Answer 41

does not give PC for warrant for arrest.

Question 42

Standard for checkpoints

Answer 42

(1) done in a non-discriminatory manner; and
(2) automobile reason for checkpoint (DUI yes, Drugs no)

Question 43

What rights are offense specific?

Answer 43

Miranda rights (5th amendment) - these are not offense specific, meaning once invoked stop questioning about nay crimes

6th amendment right - only attaches to specific offenses.

Question 44

When does double jeopardy protection attach?

Answer 44

attaches once (1) jury is sworn in (jury trial), or (2) the first witness is sworn in (bench trial)

But pleading guilty can prevent you from being charged for a greater offense later.

Question 45

How can statements taken in violation of 6th Am right to counsel be used?

Answer 45

They can be used to impeach.

Question 46

Defendant’s right to choose own counsel

Answer 46

Defendant has this right, unless choosing the counsel would result in a high risk of a conflict of interest arising.

Question 47

Is there a reasonable expectation of privacy in bank records?

Answer 47

Nope

Question 48

Fifth Amendment privilege against self-incrimination

Answer 48

Applies only to individuals, not corporations. This is true even if corporate custodian would be implicated