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Crim Pro Flashcards

1
Q

What constitutes as a custodial interrogation?

A

Must be in custody AND there needs to be interrogation

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2
Q

What to look for for miranda?

A

Suppression of statements

Invocation of right to counsel must be explicit and unequivocal

Only apply as a result of custodial interrogation

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3
Q

What does in custody mean?

A

Means you are objectively not free to leave

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4
Q

What constitutes an interrogation?

A

Police should know they are trying to elicit criminal responses

“Where were you? how come you were outside of the bank?”

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5
Q

If you are in custody and being interrogated?

A

You need to have your miranda rights read to us.

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6
Q

Miranda rights elements?

A
  1. Right to remain silent
  2. Right to an attorney and if you can not afford one one will be appointed for you
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7
Q

what can be excluded under miranda?

A

Any confession is excluded in the prosecutors case (except for impeachment), but if it leads to physical fruits, those fruits may be admitted

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8
Q

For miranda, what if you volunteer info?

A

You can volunteer information and it will be admissible

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9
Q

Can you waive miranda?

A

Yes, if done knowingly and voluntarily based on a totality of the circumstances

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10
Q

What if I ask for my lawyer after miranda?

A

All questioning must stop.

Any questions after I ask for my lawyer must be thrown out.

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11
Q

Right against self incrimination?

A

5th amendment right that protects a witness from having to give testimony against himself. The prosecution may give immunity to witness to compel testimony

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12
Q

Does privilege against self-incrimenation protect against physical evidence?

A

No. Blood, walking to see a limp, hair, etc.

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13
Q

Post miranda silence?

A

Prosecution may not comment on the silence of the D after he was Miranda.

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14
Q

Lineups?

A

The lineup or ID cannot be unessarily suggestive

No right to counsel at line-up prior to the indictment

After he is charged, he then has the right to counsel at the lineup

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15
Q

Right to counsel?

A

6th amendment right to council attaches after charges are brought

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16
Q

Have the right to counsel at all critical a stages of proceeding

A
  1. Covers almost all the stuff that involves going to court
  2. Dont have it at Pre-indictment, lineups, grand jury
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17
Q

Can you waive your right to counsel?

A

No.

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18
Q

Right to effective counsel?

A

must ask if 1. The the attorney deviated from any norms 2. presumption is it was effective unless you can prove otherwise

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19
Q

Co-D sharing council?

A

If any conflicts exist that would harm or hurt a defendant or the counsels ability to perform, cannot have them represent both

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20
Q

an Undercover cop boasting and trying to egg you on?

A

Example:

  1. The D has been arrested and is in jail cell. Miranda has been given and undercover cop gets put in cell to elicit criminal response from D.
            1. If cop puts someone in cell to egg on D, that violates your right to counsel.
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21
Q

Guilty pleas?

A

Must be done intelligently and voluntarily

            1. You know what the consequences are
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22
Q

Severing in Crim PRo?

A
  1. If two Ds are being tried together,
  2. And there is some evidence that will prejudice one of them you can severe the trial
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23
Q

Impartiality in trial

A

Right to have unbiased judge

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24
Q

Competency to stand trial

A

Must be competent enough to under what is happening and to assist in your own legal defense

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25
Right to jury trial?
You have the right to a jury trial if the offense has a sentence of longer than six months
26
Rules around jury makeup?
2. Jury must be cross section of community 1. Any exclusion of a juror based on race or gender will violate equal protection 3. state trials with 6 member jury must be unanimous 4. State jury with 12 jury doesn’t have to be 5. Federal trial with 12 must be unanimous 6. Right to public trial unless judge has an overriding interest to close the tria
27
Right of confrontation
If there are co-defendants, and one D is going to confess and implicate the other, then you must testify at trial to be subject to cross examination
28
Out of court statement made against the D, are those statement going to violate the right of confrontation?
Ask if it was testimonial or not. 1. If it’s not made in the course of an emergency then it is testimonial. 2. If its made during some sort of an emergency, then its not testimonial and it is admissible
29
Procedural rights
1. If its an affirmative defense, need to prove defense by a preponderance of evidence 2. cant have a mandatory presumption in a criminal case 3. In federal trials for insanity must prove by clear and convincing evidence
30
Grand Jury?
1. Almost anything is okay at grand jury 2. No right to be there, to counsel 3. Can bring any evidence
31
Double jeopardy?
Look for beginning and end of trial. Jeopardy “attaches” when the jury sworn in a jury trial or when the first witness is sworn in a bench trial. Prevents Reprosecution after final judgement based on merits. If it’s a mistrial or technicality then you can be tried again.
32
Same offense test for double jeopardy?
Block burger standard. if each crime contains an element that the other does not they are not considered to be the “same offense.”
33
Separate sovereign rule
1. Can be retried in two different states. 2. If tried in state court can be tried in fed court
34
What if someone is found not guilty of a lesser included offense?
1. If an underlying or lesser included offense you are found not guilty of they Cannot charge you again for the greater offense. 2. EX: felony and felony murder later.
35
Three ways to satisfy the fourth amendment?
1. Valid warrant + proper execution 2. Good faith or a reasonable mistake by the officer if warrant was defective 3. Exception applies
36
What questions to ask when doing a search and seizure issue?
1. Who is doing search? 2. Was there a search? 3. Was there a proper warrant?
37
Search and Seizure; Who os doing the searching?
1. Must be the cop, a government agent, or someone acting in direction of the government. If not, none of the rules apply.
38
For search and seizure; If it was a gov, was there a search?
1. Was there some sort of violation of your expectation of privacy? 1. If yes, then search 2. House, car, safe 3. open field 1. If you do something out in the open then you do not have an expectation of privacy
39
open field doctrine?
If you do something out in the open then you do not have an expectation of privacy
40
For search and seizure, if the cop is search what must there be?
1. Probably cause to believe that criminal conduct was taking place 2. Can a cop rely on an informant to get the probable cause? 1. Yes
41
42
If you have gov acting, there is a search, and there’s probable cause to conduct the search, then they need a warrant. Elements?
1. Warrant needs to bee issues by a neutral magistrate 2. Facts are fresh and not out of date 3. Warrant has to be specific to person, place, and object they are looking for 1. Must not exceed the scope of the warrant
43
If the police rely on the warrant, and something is wrong with the warrant is the search still okay?
Yes, so long as the cop acted reasonably and in good faith
44
Must a cop knock and announce before they serve a warrant?
Yes, but its not fatal if they do not
45
IF a bad search occurs, can a defendant have his case dismissed?
No
46
Once you find what you want from the warrant, can you continue to look for other things?
1. No. 2. If something is in plain view then they CAN sieze it. They just cannot go looking for stuff. If im looking for a lion i cant check in a jewelry box. 3. I find the box of cocaine under your bed I was looking for and there was a gun next to it. I can take the gu
47
Protective sweep?
Cop can not look for other criminals within the house they are searching UNLESS they have evidence other people may be there
48
Who can object to a search?
Anyone who own or has the right to possess the property
49
Warrant exceptions?
1. Consent 2. incident to lawful arrest 3. administrative searches 4. Exigent circumstances 5. Automobile exception 6. Plain view
50
Consent warrant exception?
1. If one with actual or apparent authority to consent gives consent voluntarily, officers may search the areas to which they understand the consent to extend 2. If two people share property, and one says yes and one says no, then there cannot be a search 1. However, if one is home and the other is not and the one home says sure come in there may be a search.
51
Incident to lawful arrest warrant exception?
1. at the time of a lawful arrest an officer may conduct searches of the arrestee and anything within his wingspan 2. exception if the arrestee is in a vehicle 1. Once the arrestee is secured, the police officer can only search the vehicle if it is reasonable to believe it contains evidence of a crime for which the suspect is arrested
52
Administrative searches warrant exception?
1. searches at jail 2. Public school officials upon reasonable suspicion 3. random drug testing at public school
53
Exigent circumstances warrant exception?
1. Cop sees something is going to be destroyed 2. Officer is in hot pursuit 2. If there is serious injury or threat of injury, or 3, If evidence of a crime likely will disappear before a warrant can be obtained
54
Automobile warrant exception?
If the police have probable cause that the car is carrying contraband they can search it. Include trunk if there is probable cause to check the trunk.
55
Plain view warrant exception?
1. An officier, who is lawfully present in the area he is in, may seize an item if it is “immediacy apparent that it is contraband or evidence of a crime” 2. extends to other senses as well
56
warrant for BORDER SEARCHES
No warrant is necessary for border searching
57
SEARCHING OUTSIDE OF THE US
No 4th amendment issues are at play
58
DOG SNIFF
If dog sniff in public, no search committed
59
RANDOM STOPS
1. Unconstitutional 2. If you do a check point you must check every car, or have a pattern.
60
Stop and frisk?
1. only reasonable suspicion that criminal activity is afoot 2. Can only frisk for weapons if you have a reasonable suspicion they may have sort of weapon
61
Harmless error rule
1. If the government can rove beyond a reasonable doubt that they would’ve found this evidence anyway then it can stay. 2. Government must prove beyond a reasonable doubt that the error was harmless

Criminal procedure (2 decks)

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