Crim Pro

Question 1

Seizure

Answer 1

Occurs when an O by means of physical force OR show of auth intentionally terms or restrains the person’s freedom of movement.

E.g. grabbing suspect by form or yelling “stop!”

Test: Whether a reasonable person would feel free to disregard the O.

Question 2

Terry Stop and Frisk–EMPHASIZE

Answer 2

3 reqs:

1) Lawful stop–i.e. an O can stops an indv when the O has a reasonable suspicion based on articulable facts to believe the suspect is or is about to be engaged in crim behavior;

2) Reasonable belief D armed–i.e. once D stopped, O can pat down detainee for weapons ONLY if reasonable belief D is armed; and

3) Reasonable scope of search–O but cannot frisk for other evidence; but if the pat down reveals objects whose shape makes their identity obvious, the O can seize those objects–i.e. it’s obvious the objects are contraband; if PC develops during Terry stop the O can arrest.

Evidence excluded ONLY when initial stop/search is unlawful and O develops no basis to make lawful arrest–otherwise if initial stop unlawful but O develops basis for lawful arrest then evidence can be admitted.

Question 3

Traffic Stops

Answer 3

Os must have reasonable suspicion to stop a car; once there is a lawful stop Os may pat down occupant for weapons if they have reasonable suspicion that person has a weapon.

Question 4

Arrests

Answer 4

Must be PC to believe that arrested indv has committed a crime; pretext arrests are fine under 4A.

Felony–if felony has been committed outside presence of one making arrest, O may arrest anyone whom he has PC to believe has committed a felony (even if O didn’t witness felony).

Misdemeanor–must have been committed in presence of O; PC to believe a misdemeanor was committed w/o actually witnessing crime is NOT suff for valid W-less arrest.

Unlawful arrest has NO bearing on subseq crim prosc–BUT evidence seized pursuant to unlawful arrest may be suppressed.

Question 5

Arrest Warrants

Answer 5

Arrest W must:
1) be issued by a neutral and detached magistrate;
2) be based on a finding of PC to believe the named indv has committed a particular crime; and
3) name the person and identify the offense.

Absent an arrest W Os can only arrest someone inside his/her dwelling if:
1) there are exigent circumstances (e.g. felony hot pursuit); or
2) there is consent to enter

Cannot execute arrest W in 3P’s dwelling–i.e. in that case need a search warrant, exigent circumstances OR 3P’s consent.

Question 6

W-less arrests

Answer 6

An O can arrest D w/o a W in a public place either for a crime committed in O’s presence or based on PC to believe D committed a felony.

Question 7

SILA–EMPHASIZE

Answer 7

A lawful arrest permits O to make a contemporaneous search of the person arrested and the immediate surrounding area to:
1) protect Os from weapons or other danger; and
2) to prevent the destruction or concealment of evidence.

Arrest on st–can search D and his wingspan

Arrest at home–can search the suspect and immediate arrest area

Arrest in car–may search passenger compartment of vehicle as long as D still has access to vehicle at the time; and may search entire vehicle if it is reasonable that evidence of the offense of arrest might be found in vehicle.

Question 8

What is a “search”?

EMPHASIZE

Answer 8

Occurs when one of the following tests met (evaluate both on essay):

1) physical trespass–when the government physically intrudes upon private property for the purposes of obtaining information (or used “sense-enhancing” tech not gen available to public to explore details that would have been unknowable w/o physical intrusion) or

2) gov conduct violates a reasonable expectation of privacy–i.e. the gov violates a D’s 1) subj expectation of privacy that 2) society would find obj reasonable.
*Defendant must show that she had an ownership or possessory interest in the place searched or item seized.

E.g. eavesdropping on D’s convo in her home own home constitutes search both in violation of 1) physical intrusion and 2) REP.

E.g. undercover cop peering into dressing room at a mall would not violate physical trespass but would violate reasonable expectation of privacy.

Question 9

REP Analysis–Open Field vs. Curtilage

EMPHASIZE

Answer 9

A defendant’s home and the area immediately surrounding the home (i.e., the curtilage) are protected under the Fourth Amendment.

However, private property that lies outside the curtilage of a home is not protected by the home’s umbrella of Fourth Amendment protection. Under the “open fields” doctrine, governmental intrusion on such property is not a search.

Question 10

SW Requirement

Answer 10

If there is reasonable expectation of privacy then gov needs a SW to conduct search. Three reqs:
1) Must be issued by a neutral magistrate;
2) must be based on PC to believe that the items sought are fruits, instrumentalities, or evidence of crime; and
3) must describe the prop and place to be searched w/ particularity.

If W does not meet these reqs then W invalid and evidence seized excluded.

Informants–reliable/known informant?; if not then info from unknown informant must be indp verified by police–otherwise no PC for SW.

Question 11

Exclusionary Rule

EMPHASIZE

Answer 11

Under the exclusionary rule, evidence obtained in violation of the accused’s Fourth, Fifth, or Sixth Amendment rights may not be introduced at her trial to prove her guilt. Under the Fourth Amendment, evidence seized during an unlawful search cannot constitute proof against the victim of the search.

Question 12

Fruit of the Poisonous Tree

EMPHASIZE

Answer 12

Subject to some exceptions, the exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary “derivative evidence” discovered as a result of the primary taint, also known as the “fruit of the poisonous tree.”

Exceptions:

1) Inevitable discovery rule–The prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means.

2) Independent source doctrine–The evidence was discovered in part by an independent source unrelated to the tainted evidence.

3) Attenuation principle–The chain of causation between the primary taint and the evidence has been so attenuated as to “purge” the taint. Both the passage of time and/or intervening events may attenuate the taint.

Question 13

SW exception–Exigent Circumstances

Answer 13

If Os are in “hot pursuit” or there is an immediate danger, they may conduct a search w/o getting W.

Exception does NOT apply if police create the exigency.

Question 14

SW exception–SILA

EMPHASIZE

Answer 14

Arrest in home–Os may also conduct a protective sweep which allows a quick and limited visual inspection of immediately adjacent places where person might be hiding.

Question 15

SW Exception–Consent

Answer 15

D can consent to search; does not req O to warn D of right to refuse and consent can involve deception–e.g. gov agent pretending to be narcotics buyer being invited into D’s home.

O cannot search over objection of present occupant.

Question 16

SW Exception–Plain View

EMPHASIZE

Answer 16

In situations where there is a reasonable expectation of privacy, an officer may still seize an item that was in plain view, as long as:
(i) the officer is lawfully on the premises;
(ii) the incriminating character of the item is immediately apparent; and
(iii) the officer has lawful access to the item.

Question 17

SW Exception–Automobiles

EMPHASIZE

Answer 17

The automobile exception justifies a warrantless search of a person’s vehicle when:

1) police have probable cause to believe that the vehicle contains evidence of a crime; and
2) the search is limited to areas where the evidence might be located.

During an automobile search, police can search any containers inside the vehicle—including the trunk and locked containers—that might contain the illegal evidence. They can also seize any other illegal items discovered during this search.

Question 18

SW exception–Evidence obtained from Admin Search

Answer 18

W-less admin searches–used to ensure compliance w/ various admin regs–e.g. airplane boarding areas; int’l borders; searches of students in public schools.

Question 19

W exception–Terry stops

EMPHASIZE

Answer 19

Merely req reasonable suspicion; may conduct limited “frisk” for weapons.

Question 20

5A Privilege Against Self-Incrimination

EMPHASIZE

Answer 20

Applies when D compelled to make a self-incriminating statement while in custody or testifying in ct.

The privilege against self-incrimination applies only to individuals—not corporations. This means that when a corporation is the target of an investigation (as seen here), the custodian of corporate records (or other corporate officer) cannot refuse to produce subpoenaed documents by citing this privilege. This is true even if the documents would incriminate the custodian (or officer) personally.

Question 21

Interrogations

EMPHASIZE

Answer 21

Statements made as a result of custodial interrogation are inadmissible unless accompanied by procedural safeguards–i.e. Miranda warnings.

Custodial–D being questioned has been arrested or otherwise not free to leave.

Interrogation–Involves either the official asking Qs or engaging in other words/conduct that police know or should know will elicit response.
*Lineups to identify D are NOT interrogations for 5A purposes.

Exception to Miranda warning–public safety at risk; e.g. bomb threat.

Interrogation tactics–confessions must be vol; statements obtained by threats even after Miranda warnings inadmissible (mere deceit does not=invol confession).

Invol obtained statements–NEVER admissible and evidence presumptively inadmissible b/c fruit of poisonous tree.

Statements in violation of Miranda–inadmissible in prosc’s case in chief but admissible to impeach D’s credibility; evidence still admissible.

Question 22

14A–Voluntariness

EMPHASIZE

Answer 22

For a self-incriminating statement to be admissible under the Due Process Clause of the 14th Amendment, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion.

Question 23

Invoking 5A Rights

EMPHASIZE

Answer 23

D must affirmatively invoke right to remain silent/right to counsel to cease questioning–otherwise if D says he’s willing to talk then amounts to waiver of right to remain silent/right to counsel.

Once D invokes right to counsel–NO subseq waiver of that right valid w/o at least a 14-day break in custody.

Question 24

Long Duration in b/t Interrogations

Answer 24

When the interrogation of a suspect who has waived his/her Miranda rights is stopped for a long duration, police should re-Mirandize the suspect prior to resuming the interrogation. That is because the passage of time can possibly invalidate the suspect’s earlier waiver, rendering any incriminating information obtained after the break in interrogation inadmissible.

Question 25

6A Right to Counsel–EMPHASIZE

Answer 25

Under the Sixth Amendment–interrogation constitutes a “critical stage” of prosecution, such that a post-charge interrogation in the absence of counsel violates a defendant’s Sixth Amendment right to counsel unless the defendant has waived such right. Interrogation includes not only formal questioning by the police, but any conduct of the police that is intended to elicit a response from a defendant (e.g. placing undercover cop in D’s cell to elicit incriminating info).

Offense-specific–D has 6A right to counsel only w/ regard to offenses for which he has actually been charged; applies whether in custody or not; applies to all felonies or misdemeanors for which jail time imposed.

Does NOT apply to non-critical stages–i.e. investigative lineups (pre-indictment); W’s looking at photo arrays–BUT in both cases ct will consider whether lineup/photo array “impermissibly suggestive”, and if so then exclude testimony.
–Even if impermissibly suggestive the W’s in-court ID of D may be reliable.

Question 26

Key Points to Exclusionary Rule

Answer 26

Suppression an issue ONLY after you conclude there has been an underlying const violation:

4A–was there a search/seizure? If yes was there PC?
5A–was D in custody? Was there an interrogation? Was D given warnings? Did D invoke rights?
6A–did 6A right to counsel attach? Was this a critical stage?

If violation–ask whether exclusionary rule applies to that kind of violation and ask whether an exception to exclusionary rule makes evidence admissible anyway.

Question 27

Exceptions to Exclusionary Rule–Knock and Announce

Answer 27

Os executing an AW at residence are req to knock and announce they are police; but if they fail to do so the evidence does NOT have to be excluded.

Question 28

Exception to Exclusionary Rule–Inevitable Discovery

EMPHASIZE

Answer 28

If the evidence would have been discovered anyway through lawful means, it will be admissible.

E.g. Officer Thomas was searching Ulysses’ house without a warrant. Officer Young, who had probable cause, was in the process of acquiring a search warrant.

Question 29

Exception to Exclusionary Rule–Indp Source

EMPHASIZE

Answer 29

Evidence discovered on basis of indp source will be admissible.

E.g. Both the defendant and somebody else were telling the police where to find the evidence and the other person’s statements would have been enough for police to find the evidence

Question 30

Exception to Exclusionary Rule–Attenuation in Causal Chain

Answer 30

Intervening events and the passage of time can remove the taint of unconst conduct.

Question 31

Exception to Exclusionary Rule–Good Faith

Answer 31

Applies to Os who violate an indv’s rights but have GF reason to believe their conduct const; applies to Os who rely on either:
1) an existing law that was later declared unconst; or
2) a W that while facially valid is later found to be defective–Os can rely on W unless 1) W obtained as a result of deliberate police misconduct (e.g. intentionally altering expiration date of arrest W); 2) W facially defective; or 3) magistrate wholly abandoned judicial role.

Question 32

Exception to Exclusionary Rule–1/2 Neg

Answer 32

Isolated neg by law enforcement does not nec trigger exclusionary rule–to trigger rule police conduct must be suff deliberate so that exclusion could meaningfully deter it.

Question 33

Standing–EMPHASIZE

Answer 33

To prevail on a motion to suppress, the defendant must first establish that he has standing to contest the allegedly unlawful Fourth Amendment search. Standing exists when the defendant has a legitimate expectation of privacy (or an ownership/possessory interest) in the area or item searched at the time of the search. Therefore, a defendant cannot challenge an unlawful search of a third party’s premises because it infringed upon the third party’s right to privacy—not the defendant’s.

Question 34

Initiation of Charges

Answer 34

Under 5A all fed felony charges must be initiated by indictment by GJ unless D waives indictment–indictment reqs PC to believe D committed crimes charged.

No GJ req for sts–so sts can choose whether to proceed by GJ or by information; if proceed by info then must be preliminary hearing before neutral judge to determine whether there is PC.

Question 35

Proceedings before GJ

Answer 35

GJs can consider evidence that has been obtained illegally and hearsay evidence in deciding PC.

Ds–do NOT have right to testify before GJ
Ws–do NOT have right to counsel w/in GJ.

GJs held in secret and does NOT have to be unanimous.

Question 36

Competence to Stand Trial

Answer 36

Test: Whether D comprehends nature of proceedings against him and can assist his L in defending the case.

If D competent to stand trial then also competent to plead guilty and waive right to trial.

Question 37

Guilty Pleas

Answer 37

D must knowingly and intelligently waive trial rights through plea allocution.

If D challenges plea agreement and succeeds in reopening case the prosc can bring the charges again AND reinstate charges it had dropped.

D entitled to competent assistance from counsel in plea-bargaining process.

Question 38

Bail

Answer 38

8A–forbids excessive bail but does not state outright that bail must be offered pending trial.

Gen Rule–bail is available UNLESS D poses flight risk or a danger to community; presumption in favor of bail.

Question 39

6A Right to Jury Trial

Answer 39

D has right to jury trial for all serious offenses for which the authorized punishment is more than 6 months.

While a defendant may waive the right to a jury trial and opt for a trial by judge, known as a “bench trial,”–a defendant does NOT have a constitutional right to a bench trial.
*Note: A defendant who can establish that a jury trial would deny him a fair trial may be entitled to a bench trial on that ground.

Question 40

Jury Size/Selection

Answer 40

Fed: A jury in fed crim case must have 12 members and decide unanimously.

Sts: can use juries of 6 ppl or more in crim cases and must be unanimous.

Selection–begins w/ jury pool rep fair cross-section of comm; potential jurors can be removed via 1) unlimited challenges for cause (e.g. impartiality issues) or 2) limited peremptory challenges for any reason (except based on sex/race).

Question 41

Speedy and Public Trial Rights

Answer 41

SoL normally begins to run when crime occurs; for continuing offenses–e.g. conspiracy–beings to run when offense ends.

Speedy Trial Clause of 6A–protects Ds against delay that occurs b/t time of arrest or indictment (whichever comes first) and time of trial; ct looks at 4 factors–length of delay; reason for delay; whether D asserted right to speedy trial; and risk of prejudice to D.

Public Trial Rights–cts have some discretion to close particular proceedings if sub likelihood of prejudice.

Question 42

Confrontation Clause

Answer 42

6A guarantees Ds right to:

1) confront Ws against them; and
2) right to compulsory process to produce their own Ws

If statement testimonial–i.e. made under circumstances which would lead reasonable person to believe statement would be used at later trial–then inadmissible if 1) declarant unavailable AND 2) D had no prior opp to cross-examine W.

Question 43

Burton Doctrine

Answer 43

D’s own statements ALWAYS admissible against him, even if D does not testify; if there are Co-Ds a non-testifying co-D’s statements are NOT admissible against other D b/c violates Confrontation Clause.

Question 44

Four Prosecutorial Duties

Answer 44

1) Pros must turn over all material exculpatory evidence–i.e. evidence that could change outcome of the case–to the defense, including: 1) evidence that tends to show that D is not guilty and 2) evidence that would enable the defense to impeach credibility of pros W.

2) Pros may NOT knowingly present false testimony;

3) Pros may not contact–or direct others to contact–a D outside the presence of his counsel; and

4) Pros may not comment on a D’s failure to testify at trial (but can comment on D’s silence before Miranda rights attached).

Violation of any of these can result in mistrial or reversal of conviction–claims of pros misconduct subj to Harmless-Error rule.

Question 45

Defense Counsel

Answer 45

Conflicts of Interest–e.g. joint rep of Co-Ds or prior rep of W can create COI; if there is an actual conflict judge must warn Ds that joint rep is a risk and give them opp to get sep counsel or get affirmative waiver from Ds in which they acknowledge there is a conflict; if a COI actually affects counsel’s behavior there is a presumption of prejudice and D not req to show actual innocence in order to get new trial.

Effective Assistance–1) perf–did defense counsel’s perf fall below the wide range of reasonable conduct that L’s might engage in?; and 2) prejudice–there is reasonable probability that had counsel performed effectively the result would have been diff;
*Cases that go to trial–D must show there was a reasonable prob that he could not have been convicted but for ineffective assistance–if so then conviction reversed.
*Guilty pleas–D must show that he would not have pleaded guilty if his L had not given him bad advice or performed ineffectively–if so then conviction reversed.

Question 46

Choice of Counsel

Answer 46

Ds who can afford retained counsel are entitled to the counsel of their choice as long as L is:

1) properly admitted in the JX;
2) is available for trial; and
3) no conflict or other reason to disqualify the L

D who is denied retained counsel of his choice–entitled to have his conviction reversed.
Indigent Ds–NOT entitled to appt of L of their choice; so as long as they receive competent assistance at trial they have received all the Const guarantees.

Proceeding Pro Se–D entitled to waive right to counsel and to rep themselves as long as knowingly/vol and competent enough to understand what they are doing.

Question 47

Cruel and Unusual Punishments Clause

Answer 47

The Eighth Amendment prohibits the government from imposing cruel and unusual punishment–a sentence that is grossly disproportionate to the crime constitutes cruel and unusual punishment.

Exception: Three-strikes laws– do NOT necessarily violate the Eighth Amendment because the law serves the state’s legitimate goal of deterring and incapacitating repeat offenders. Therefore, the law will not be overturned as a violation of the prohibition against cruel and unusual punishment.

Sentence of LWOP for non-homicide crimes committed while D juvenile–unconst;

BUT a sentence of LWOP for a homicide committed while D juvenile–const provided that sentence is not mand.

Question 48

Capital Punishment

Answer 48

Death penalty can be imposed ONLY in cases when V dies.

DP cannot be imposed on:
1) Ds who were under 18 when they committed crime;
2) Ds who suffer from cognitive impairment; and
3) Ds who are insane at time of execution.

Question 49

Double Jeopardy Clause

Answer 49

Three protections:
1) Protection against prosc for same offense after acquittal
–e.g. A felony-murder prosecution predicated upon an underlying felony for which the defendant was acquitted in a previous trial is improper b/c would req retrying the underlying felony in violation of DJ clause.

2) Protection against prosc for same offense after conviction; and
–Same offense look to lesser-included offenses–e.g. if you are prosc for and convicted of larceny, you cannot be indicted and prosc for robbery in same episode.

3) Protection against multiple prosc or punishments for same offense.
–E.g. But larceny and conspiracy to commit larceny NOT same offense–i.e. can be prosc for both b/c each offense reqs proof of element that the other does not.

Three caveats:
1) Offenses w/ diff Vs are sep offenses for DJ purposes;
2) Sep Sovereigns Rule–if 2 diff sovereigns have JX over the crime they can each try the D sep; and
3) Charged v. Punished–D can be charged and tried for an offense and a lesser-included offense at same trial but D can ONLY be punished for one offense.

Question 50

Attachment and End of Jeopardy

Answer 50

Attaches when the jury is sworn in or, in a bench trial, when the first W is sworn in.

Acquittal–end of case and D cannot be retried by same JX for same offense; pros cannot appeal acquittal.

Conviction–D convicted and he either does not appeal or conviction affirmed, that is end of jeopardy and cannot be retried by same JX for same offense; if jury convicts and D appeals and gets conviction reversed–can be retried unless reversal based on finding of insuff evidence.

Mistrial–1) manifest nec–D can be retried (e.g. jury deadlocked or defense counsel engaged in misconduct); 2) no manifest nec–D cannot be retried by that JX.

Apprendi Doctrine–Judges cannot enhance crim sentences beyond statutory max based on facts other than those decided by the jury beyond a reasonable doubt–e.g. statute states max sentence for robbery 8 yrs but if V was unusually vulnerable the sentence can be doubled; jury would have to find beyond a reasonable doubt that V was unusually vulnerable in order to enhance sentence.
*Exception–sentence enhancement based on prior crim convictions need not be found by a jury.

Question 51

Pro Se

Answer 51

A defendant has the constitutional right to refuse counsel and proceed pro se at trial. The waiver of the right to counsel must be knowingly and intelligently made. To that end, the court should make the defendant aware of the dangers and disadvantages of self-representation, such as the inability to raise an “ineffective assistance of counsel” defense on appeal.

Question 52

Crim D Right to Testify

Answer 52

A criminal defendant’s right to testify at trial is a fundamental right protected by the Fifth Amendment of the U.S. Constitution. This right cannot be forfeited by counsel, but only by the defendant’s knowing, voluntary, and intelligent waiver. However, if a defendant chooses to testify, their right to remain silent is considered waived.

Competence–To be competent to stand trial, the defendant must understand the nature of the proceedings against him and the consequences of the proceedings.

Timeliness–ct may deny D’s req to represent himself if made so close to trial, and after D had already been appointed counsel.