Crim pro

Question 1

Seizure of a person - occurs when

OF AIR TF

Answer 1

Seizure - occurs when (OF AIR TF, Officer, Force, Authority, Intentionally, Restrains, Terminates, Freedom)
An officer,
By means of
Physical force or
Show of authority
Intentionally
Terminates OR
Restrains
The person’s freedom of movement

Question 2

Checkpoints - officers do not need reasonable suspicion to stop drivers if they pull over everyone
Checkpoint Requirements

EOA TIM

Answer 2

Checkpoints - officers do not need reasonable suspicion to stop drivers if they pull over everyone
Checkpoint Requirements (EOA TIM, Elicit, Other, Advanced, Tailored, Investigatory, Minimally):
A checkpoint maintained by police for the purpose of finding witnesses to a crime (rather than suspects) is not per se unreasonable, as long as:
The checkpoint stop’s primary law enforcement purpose is to elicit evidence to help apprehend not the vehicle’s occupants but other individuals
The stop advanced a public concern to a significant degree, AND
The police appropriately tailored their checkpoint stops to
Fit important criminal investigatory needs AND
To minimally interfere with liberties protected by the Fourth Amendment

Question 3

An Arrest (a seizure of the person) requires…

FoRSA

Answer 3

An Arrest (a seizure of the person) requires… (FoRSA, Force, Restrain, Submission, Authority)
Either
The application of physical force to restrain movement
OR
Absent such physical restraint, submission to the assertion of authority

Question 4

Probable Cause exists when

FIS BC

Answer 4

Probable Cause exists when (FIS BC, Facts, Information, Sufficient, Believing, Committed)
The facts and circumstances
Of which you have reasonably trustworthy information
Are sufficient to warrant
A person of ordinary caution in believing
That a crime has been or is being committed

Question 5

Warrantless arrest
An officer can arrest an individual without a warrant in

PPPF

Answer 5

Warrantless arrest
An officer can arrest an individual without a warrant in (PPPF, Public, Presence, Probable, Felony)
A public place, either for
A crime committed in the officer’s presence
OR
Based on probable cause to believe
The individual committed a felony

Question 6

Warrantless Arrest - Payton Rule
It is unreasonable under the Fourth Amendment to conduct an

ED CRoW

Answer 6

Warrantless Arrest - Payton Rule
It is unreasonable under the Fourth Amendment to conduct an (ED CRoW, Entry, Defendant’s, Consent, Routine, Warrant)
Entry
Into Defendant’s home
Without consent
To make a routine felony arrest
Without arrest warrant

Question 7

Unreasonable Search

IRE PCP

Answer 7

Unreasonable Search (IRE PCP, Invades, Reasonable, Expectation, Physically, Constitutionally, Protected):
An unreasonable search occurs when the government
Invades a place protected by a reasonable expectation of privacy, OR
Physically intrudes upon a constitutionally protected area

Question 8

Exceptions to the Warrant Requirement
List

FIST C SCAPE

Answer 8

Exceptions to the Warrant Requirement
List (FIST C SCAPE, Frisk, Inventories, Sweep, Threshold, Chimel, Special, Consent, Automobile, Plain, Exigent)
Threshold Inquiry (Terry Stop)
Terry Pat Frisk
Chimel SIVA
Protective Sweep
Exigent Circumstances
Automobile Exception
Plain View Seizures
Special Needs / Administrative Searches
Inventories
Consent

Question 9

Defendant cannot suppress evidence seized in search of defendant’s property pursuant to 3d party consent when

ABOAR

Answer 9

Defendant cannot suppress evidence seized in search of defendant’s property pursuant to 3d party consent when (ABOAR, Agency, Behalf, Otherwise Assumes, Risk):
An agency relationship exists between the third party and the defendant
That gives to the third party the right to consent on behalf of the defendant
OR
The defendant otherwise gives the third party such rights with respect to the property
That the defendant assumes the risk that the third party would allow the property to be searched

Question 10

Plain View Seizure Rules (Hicks)

ViPrS

Answer 10

Plain View Seizure Rules (Hicks) (ViPrS, View, Probable, Seize)
Police must be lawfully in a position to view the object
Item’s incriminating nature is immediately apparent to police (i.e. they must have probable cause to believe it’s contraband or evidence of a crime)
They must be lawfully in a position to seize it

Question 11

Plain Feel Seizure Rules (Dickerson)

FPS

Answer 11

Plain Feel Seizure Rules (Dickerson) (FPS, Feel, Probable, Seize)
Police must be lawfully in a position to feel the object
Item’s incriminating nature is immediately apparent to police without further intrusion (i.e. they must have probable cause to believe it’s contraband or evidence of a crime)
They must be lawfully in a position to seize it

Question 12

Special Needs Rule under Skinner

CREEMD

Answer 12

Special Needs Rule under Skinner (CREEMD, Clues, Regulation, Expectation, Effective, Minimal, Delay)
Warrantless Testing is reasonable because
Narrowly and specifically defined by regulation
Minimal discretion invested in testers
Delay would frustrate purpose behind search
Diminished expectation of privacy in physical condition of covered employees
Effective means of deterring violations and resulting accidents
Test results furnish clues as to causes of accidents

Question 13

Purpose of an inventory

PCD

Answer 13

Purpose of an inventory (PCD, Property, Claim, Dangerous)
Protect the property from theft
Protect police from a later claim against theft/damage
Protects police from dangerous instrumentalities
Subjective intent of the officer is irrelevant
Inventory searches must be performed according to standardized criteria and procedures

Question 14

Exceptions to the Miranda Requirements

BUS

Answer 14

Exceptions to the Miranda Requirements (BUS, Booking, Undercover, Safety)
Public safety
Routine booking questions; and
Undercover police

Question 15

Statements Obtained in Violation of Miranda may be used at trial when they are

VTI

Answer 15

Statements Obtained in Violation of Miranda may be used at trial when they are (VTI, Voluntary, Trustworth, Impeachment):
Voluntary
Trustworthy, AND
Used for impeachment evidence

Question 16

A non-Mirandized confession can be used as

DPC

Answer 16

A non-Mirandized confession can be used as (DPC, Direct Physical, Coerced)
Direct physical evidence, provided
It was not coerced

Question 17

Factors in Determining if Post-Arrest Confession is Admissible

DPI

Answer 17

Factors in Determining if Post-Arrest Confession is Admissible (DPI, Detention, Probable, Infirm)
Whether there was a detention of petitioner
Whether the police had probable cause for the detention
Whether the making of the confessions was rendered infirm by the [illegal] arrest

Question 18

Factors to be considered in determining whether confession is obtained by exploitation of an illegal arrest

TIM B

Answer 18

Factors to be considered in determining whether confession is obtained by exploitation of an illegal arrest (TIM B, Temporal, Intervening, Misconduct, Burden)
The temporal proximity of the arrest and the confession
The presence of intervening circumstances
The purpose and flagrancy of the official misconduct
Burden is on prosecution to prove admissibility

Question 19

The Fifth Amendment Basics (Schmerber)

PSTC

Answer 19

The Fifth Amendment Basics (Schmerber) (PSTC, Produce, Silent, Testify, Compulsion)
Government must produce its own evidence - demands that the government seeking to punish an individual produce the evidence against him by its own independent labors rather than by the cruel, simple expedient of compelling it from his own mouth
Right to remain silent - guarantees the right of a person to remain silent unless he chooses to speak in the unfettered exercise of his own will and to suffer no penalty for such silence
Permits refusal to testify - protects an accused only from being compelled to testify against himself or provide the state with evidence of a testimonial or communicative nature
Prohibits compulsion - prohibits the use of physical or moral compulsion to extort communications from him
It does not prohibit the use of his body as the source of real or physical evidence

Question 20

“Communication” under 5th Amendment

CEIRD

Answer 20

“Communication” under 5th Amendment (CEIRD, Communication, Explicitly, Implicitly, Relates, Discloses)
A communication
Explicitly or implicitly
Relates a factual assertion
Or discloses information

Question 21

5th Amendment Violation Elements

CCI

Answer 21

5th Amendment Violation Elements (CCI, Compulsion, Communication, Self-Incrimination)
Compulsion
Communication
Self-Incrimination

Question 22

Attorney = Interrogation must cease
Interrogation can resume once

VAPC

Answer 22

Attorney = Interrogation must cease
Interrogation can resume once (VAPC, Voluntarily, Attorney, Passed, Coercive)
The suspect’s attorney is present
The suspect voluntarily reinitiates the interrogation, OR
When
14 days have passed since the suspect was released from police custody, OR
Was no longer subject to coercive pressures associated with police custody

Question 23

Miranda Requirements Flowchart

CI SBU

Answer 23

Miranda Requirements Flowchart (CI SBU, Custody, Interrogated, Safety Booking Undercover)
Suspect in custody? (Formally arrested / Movement restricted)
No > Miranda not required
Yes:
Suspect interrogated? (Police words/actions likely to elicit incriminating response)
No > Miranda not required
Yes:
Miranda exception? (Public safety / routine booking / undercover officer)
No > Miranda required
Yes > Miranda not required (thus, Miranda is not required when the defendant did not know that the interrogator is a police officer)

Question 24

Miranda intended to create a record to support the waiver of rights

KRC WIVK

Answer 24

Miranda intended to create a record to support the waiver of rights (KRC WIVK, Knew, Rights, Consequences, Waived, Intelligently, Voluntarily, Knowingly)
Defendant Knew
Rights AND
Consequences
So Defendant Waived
Intelligently
Voluntarily
Knowingly

Question 25

Custodial Interrogation = Custody + Interrogation
Basic Elements

QPTCD

Answer 25

Custodial Interrogation = Custody + Interrogation
Basic Elements (QPTCD; Quail are Poultry and so are Turkey, Chicken, and Duck; Question, Police, Taken [into] Custody, Deprived)
Questioning (or its functional equivalent)
By police
After
Defendant has been taken into custody OR
Deprived of his freedom of action in any significant way

Question 26

Waiving Miranda Rights

KIV BC

Answer 26

Waiving Miranda Rights (KIV BC, Knowingly, Intelligently, Voluntarily, Burden, Cease)
Defendant may knowingly, intelligently, and voluntarily waive
Heavy burden on government to prove waiver
If Defendant invokes Miranda rights protections, his rights must be scrupulously honored and interrogation must cease

Question 27

Two-Prong Test for Admissibility of Pre- or Post-Indictment Corporeal OR Non-Corporeal Identification Procedure

DSM

Answer 27

Two-Prong Test for Admissibility of Pre- or Post-Indictment Corporeal OR Non-Corporeal Identification Procedure (DSM, Demonstrate, Suggestive, Misidentification):
Defendant must demonstrate that
The procedure was impermissibly suggestive AND
There was a substantial likelihood of misidentification

Question 28

Factors Court Must Be Considered for Determining Improperness in Identification

C TOAD

Answer 28

Factors Court Must Be Considered for Determining Improperness in Identification (C TOAD, Certainty, Time, Opportunity, Accuracy, Degree):
The witness’s opportunity to view the defendant at the time of the crime
The witness’s degree of attention at the time of the crime
The accuracy of the witness’s description of the defendant prior to the identification
The level of certainty at the time of the identification, AND
The length of time between the crime and the identification

Question 29

Dangers of Mistaken Identities by Compelled Confrontations

LSD

Answer 29

Dangers of Mistaken Identities by Compelled Confrontations (LSD, Limited, Suggestion, Determinative)
Degree of suggestion (intentional or unintentional) inherent in the manner in which suspect is presented
Danger is acute where witness had limited opportunity to observe perpetrator
As a practical matter, confrontation is determinative

Question 30

Examples of Dangers in lineup ID’s

KDPSFW

Answer 30

Examples of Dangers in lineup ID’s (KDPSFW, Known, Dissimilar, Pointed, Solo, Fits, Wear)
All lineup participants but defendant are known to witness
Other participants are grossly dissimilar to defendant in appearance
Only defendant required to wear clothing similar to perpetrator’s
“We caught the guy” followed by solo presentation of defendant
Defendant is pointed out in advance
Participants try on clothing that fits on defendant

Question 31

ID Credibility Factors Considered

COD FLAP

Answer 31

ID Credibility Factors Considered (COD FLAP, Conduct, Opportunity, Discrepancies, Failure, Lapse, Another, Photo)
Witness’s prior opportunity to observe
Description Discrepancies: discrepancies between witness’s description of perpetrator and defendant’s actual appearance
Prior ID of another defendant
Photo ID of defendant before lineup ID
Failure to recognize defendant as perpetrator on a prior occasion
Lapse of time between crime and lineup ID
Facts concerning conduct of lineup

Question 32

Confrontations - Totality of the Circumstance Consideration Factors

LOCAD

Answer 32

Confrontations - Totality of the Circumstance Consideration Factors (LOCAD, Lapse, Opportunity, Certainty, Attention, Description)
Opportunity to observe
Witness’s degree of attention
Accuracy of witness’s prior description
Witness’s level of certainty
Lapse of time between crime and confrontation

Question 33

Rebutting Effective Counsel Presumption

DPRP

Answer 33

Rebutting Effective Counsel Presumption (DPRP)
Definition Performance AND
Resulting Prejudice

Question 34

Deficient Performance of Counsel

CAM

Answer 34

Deficient Performance of Counsel (CAM, Competence, Attention, Measurably)
Serious Incompetence
Inattention, OR
Inefficiency of Counsel - conduct falling measurably below that of the ordinary fallible lawyer

Question 35

Defendant Standing Requirements to Challenge Under 4th Amendment

HEPI

Answer 35

Defendant Standing Requirements to Challenge Under 4th Amendment (HEPI, Himself, Expectation, Place, Item):
Defendant himself has been seized, OR
Defendant has a reasonable expectation of privacy with regard to
The place searched OR
The item seized
It is not enough that the introduction as evidence of an item seized may incriminate the defendant or that the evidence was seized from a co-conspirator

Question 36

Exceptions to the Exclusionary Rule

IF A NICK

Answer 36

Exceptions to the Exclusionary Rule (IF A NICK, Inevitable, Faith, Attenuation, Negligence, Independent, Court, Knock)
Knock and Announce
Officers executing an arrest warrant at a residence are required to knock and announce they are police
If they fail to do so, and discover evidence, that evidence does not have to be excluded
Inevitable Discovery
If the evidence would have been discovered anyway through lawful means it will be admissible
Independent Source
Evidence discovered on the basis of an independent source will be admissible
Attenuation in the Causal Chain
Intervening events and the passage of time can remove the taint of the unconstitutional conduct
Good Faith
Biggest of the exceptions to the exclusionary rule
Applies to officers who violate an individual’s rights but have good-faith reason to believe their conduct was constitutional
Applies to officers who reply on either:
An existing law that was later declared unconstitutional, or
A warrant that, while facially valid, is later found to be defective
If officers are acting in good faith reliance, they are entitled to use the evidence that was obtained
Officers can rely on a warrant unless (FFA, Fraud, Facially, Abandoned)
The warrant was obtained by fraud
The warrant was facially defective
The magistrate wholly abandoned role
Expanded: The Good Faith Exception does not apply when (RE FFA, Reasonable, Executed, Fraud, Facially, Abandoned):
No reasonable officer would rely on the affidavit underlying the warrant
The warrant is defective on its face
The warrant was obtained by fraud
The magistrate has wholly abandoned his judicial role
The warrant was improperly executed
1/2 Negligence
Isolated negligence by law enforcement personnel does not necessarily trigger the exclusionary rule
To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion could meaningfully deter it

Question 37

Immunities

UTI

Answer 37

Immunities (UTI, Use, Transactional, Immunity)
Use/Derivative Use Immunity
Individual’s compelled testimony will not be used against them in a later prosecution
Evidence derived from individual’s compelled testimony will not be used against them in a later prosecution
Co-extensive with 5th Amendment privilege protections
But perjury destroys this immunity
Transactional (“blanket” or “total”) immunity
Individual will not be prosecuted for anything about which individual is compelled to testify
Like amnesty or pardon
Greater than 5th Amendment privilege protections
But perjury destroys this immunity
“Use and derivative use” immunity is all that is constitutionally required to compel the testimony of a witness, and testimony encouraged by a promise of immunity is considered coerced and involuntary. Therefore, the testimony cannot be used as substantive evidence or for impeachment purposes

Question 38

Officers can rely on a warrant unless

FFA

Answer 38

Officers can rely on a warrant unless (FFA, Fraud, Facially, Abandoned)
The warrant was obtained by fraud
The warrant was facially defective
The magistrate wholly abandoned role

Question 39

Expanded: The Good Faith Exception does not apply when

RE FFA

Answer 39

Expanded: The Good Faith Exception does not apply when (RE FFA, Reasonable, Executed, Fraud, Facially, Abandoned):
No reasonable officer would rely on the affidavit underlying the warrant
The warrant is defective on its face
The warrant was obtained by fraud
The magistrate has wholly abandoned his judicial role
The warrant was improperly executed

Question 40

Prima Facie Case for a Jury that is NOT a Cross-Section of Community

DVS

Answer 40

Prima Facie Case for a Jury that is NOT a Cross-Section of Community (DVS, Distinctive, Venire, Systematic):
Showing that
The group allegedly excluded is a “distinctive” group in the community
The group was not fairly represented in the venire from which the jury was chosen; AND
The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process

Question 41

Batson Three Prong Test to Determine Whether Race was an improper reason for Peremptory Challenge, violating 14th Amendment

PEB

Answer 41

Batson Three Prong Test to Determine Whether Race was an improper reason for Peremptory Challenge, violating 14th Amendment (PEB, Prima, Explanation, Burden):
The moving party establishes a prima facie case of discrimination;
The party who exercised the challenge provides a race-neutral explanation for the strike;
The moving party carries her burden of proving that the other party’s proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination
Ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike
The Fourteenth Amendment equal protection clause prohibits racial discrimination in the selection of grand juries, as well as petit juries

Question 42

MODERN TEST of whether Confidential Informant’s info can be basis for warrant (evolved from Spinelli Test)
Totality of the Circumstances Confidential Informant Test
Was information provided by an informant sufficient to create probable cause?

NNP MIOPC

Answer 42

MODERN TEST of whether Confidential Informant’s info can be basis for warrant (evolved from Spinelli Test)
Totality of the Circumstances Confidential Informant Test
Was information provided by an informant sufficient to create probable cause? (NNP MIOPC, Not Need Particular, Magistrate, Information, Other, Probable Cause)
Affidavit does not need particular information about informant, including identify
Provided the neutral magistrate can find
Based on Informant’s information AND
Other available facts THAT
There is probable cause to issue warrant
An arrest warrant cannot rely solely on information gathered from an unknown informant. The information but be independently verified by the police
A known, reliable informant does not need its information to be verified independently by police.

Question 43

Four Prosecutorial Duties

BFCT

Answer 43

Four Prosecutorial Duties (BFCT, Brady, False, Contact, Testify)
Brady Doctrine: Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence:
Evidence that tends to show that the defendant is not guilty of the crimes charged
Evidence that would enable the defense to impeach the credibility of the prosecution witness
Material Exculpatory evidence - disclosure could change the outcome of the case
Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc.
Includes evidence within the control of the government (including the police)
If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information
Many states and some D.A.’s offices have an open file policy allowing the defense to see the information
A prosecutor may not knowingly present false testimony
A prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (i.e., cannot violate the defendant’s Sixth Amendment right to counsel)
A prosecutor may not comment on a defendant’s failure to testify at trial or make unfair remarks about the defendant to the jury (i.e. cannot violate the defendant’s Fifth Amendment right to remain silent)
A prosecutor may comment on a defendant’s silence before his Miranda rights attached

Question 44

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is

JAC

Answer 44

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is (JAC, Jurisdiction, Available, Conflict):
Properly admitted in the jurisdiction (including pro hac vice rules)
Available for trial; and
No conflict or other reason to disqualify the lawyer

Question 45

Elements of When an Accomplice to Felony Murder Can Receive Death Penalty

KIP

Answer 45

Elements of When an Accomplice to Felony Murder Can Receive Death Penalty (KIP, Killed, Indifference, Participated)
Accomplice
Killed, intended to kill, or attempted to kill
OR
Significantly participated in commission of underlying felony, AND
Acted with reckless indifference to human life

Question 46

A capital sentencing scheme violates Apprendi if it

RWJ

Answer 46

A capital sentencing scheme violates Apprendi if it (RWJ, Recommending, Without, Judge):
Allows a jury to render an advisory sentence recommending the death penalty
Without specifically finding an aggravating circumstance and
Permits the judge to then make that finding independently

Question 47

Three Requirements for Statutory Scheme Imposing Death Penalty

SGR

Answer 47

Three Requirements for Statutory Scheme Imposing Death Penalty (SGR,Standards, Guidance, Review)
Clear and objective standards
Specific and detailed guidance; AND
An opportunity for rational review of the process

Question 48

Double Jeopardy Clause
5th Amendment Provides three separate protections

AMC

Answer 48

Double Jeopardy Clause
5th Amendment Provides three separate protections (AMC, Acquittal, Multiple, Conviction):
Protection against prosecution for the same offense after acquittal
Protection against prosecution for the same offense after conviction
Protection against multiple prosecutions or punishments for the same offense

Question 49

No Double Jeopardy Protections

FAMPA

Answer 49

No Double Jeopardy Protections (FAMPA, Facts, Attachment, Mistrial, Plea, Appeal)
No attachment
Jury was not impaneled & sworn, OR
Judge did not begin to hear evidence
Mistrial
Requested by defendant, OR
Based on manifest necessity (a situation rendering it impossible to continue the trial or reach a fair outcome)
Appeal
Appellate court discovered trial error & remanded case
New facts
Facts necessary for greater offense did not exist at first trial
Guilty plea to lesser offense
Greater offense was charged at time of plea to lesser offense

Question 50

Plain Error Doctrine (Re: Criminal Defendant):
A defendant who has failed to preserve a claim of error in district court is still entitled to appellate relief when

EOR

Answer 50

Plain Error Doctrine (Re: Criminal Defendant):
A defendant who has failed to preserve a claim of error in district court is still entitled to appellate relief when (EOR, Error, Obvious, Rights):
The district court committed error under the law in effect at the time the appeal is heard
The error is obvious under that law; AND
The error affected the defendant’s substantial rights

Question 51

Does taking a handwriting exemplar require presence of counsel under 6th Amendment after indictment?

Answer 51

NO. Because the 6th Amendment requires counsel to be present for all CRITICAL STAGES of prosecution, and the taking of a handwriting exemplar is NOT a critical stage of prosecution, there is no 6th Amendment requirement that counsel be present.

The defendant will still have the opportunity to meaningfully confront the government’s handwriting experts through cross-examination and present his/her own experts.

Question 52

6th Amendment Right To Counsel - Critical Stages

Answer 52

Lineups, in-person identifications, interrogations
Arraignments, preliminary hearings, bail hearings, pretrial motions
Plea negotiations & hearings
Trial & Sentencing

Question 53

6th Amendment Right to Counsel does NOT attach (counsel presence not required) - Noncritical Stages

Answer 53

Pre-charge lineups
Photo-array identification
Fingerprinting, handwriting, voice exemplars, blood samples
Initial appearances, hearings to determine probable cause to detain defendant
Discretionary appeals
Post-conviction proceedings (e.g. parole, probation)

Question 54

Remedies for 6th Amendment Right To Counsel Violations

Answer 54

Statements taken in violation of 6th Amendment cannot be used directly in deciding guilt or innocence

BUT

Statements taken in violation of 6th Amendment CAN be used for impeaching defendant’s inconsistent testimony

Question 55

6th Amendment Choice of Counsel Rules

Answer 55

General Rule: non-indigent criminal defendant entitled to counsel of choice

Court may deny choice of counsel if:
1. Defendant unable to pay
2. Attorney declines representation
3. Attorney has conflict of interest
4. Advocate is not an attorney

Erroneous denial of an attorney - such as improper denial of pro hac vice counsel - constitutes STRUCTURAL ERROR

STRUCTURAL ERROR results in automatic reversal of conviction, not subject to review for harmlessness

Question 56

Admissibilty of in-court identification to cure improper out-of-court identification procedure

Answer 56

If there was an unnecessarily suggestive out-of-court identification arranged by police, in-court testimony MAY be admitted to cure after court considers:
1. Witness’s opportunity to view perpetrator & level of attention during crime
2. Accuracy of witness’s description before suggestive identification & certainty during identification
3. Time between crime and suggestive identification

If the improper out-of-court identification procedure created a substantial likelihood of misidentification, in-court identification testimony will NOT be admitted.

If, after considering the factors above, the court decides it did not create a substantial likelihood of misidentification, in-court identification testimony will be admitted.

Question 57

6th Amendment Right to Trial by Jury - For-Cause Challenge in Capital Punishment Case

Answer 57

A for-cause challenge should be granted if a potential juror’s views would prevent or substantially impair his/her ability to impartially decide the case or impose the death penalty

Question 58

Presumptions vs. Permissible Inference - what are they, and when are they allowed?

Answer 58

Mandatory Presumptions
-Rebuttable: Conclusion that MUST be drawn from basic facts unless rebutted
-Conclusive: Conclusion that MUST be drawn from basic facts & cannot be rebutted

Permissible Inference: Conclusion that MAY be drawn from basic facts

Mandatory presumptions cannot be used against a criminal defendant to establish an element of the charged crime

Question 59

Is there a 4th Amendment reasonable expectation of privacy to bank records?

Answer 59

NO. No warrant is necessary by police to search bank records.

Question 60

Does the 5th Amendment privilege against self-incrimination extend to custodians of a corporation’s records?

Answer 60

NO.

A custodian of corporate records (or other corporate officer) cannot refuse to produce subpoenaed documents by citing privilege, even if the documents would incriminate the custodian personally.

Question 61

Does the 5th Amendment Privilege Against Self-Incrimination apply in grand jury proceedings?

Answer 61

YES. An individual can raise a 5th Amendment defense against self-incrimination if being asked to testify in front of a grand jury.

Question 62

When can a defendant introduce evidence of his own character?

Answer 62

When it is evidence that his character is inconsistent with the crime charged.

Question 63

Can a witness in a civil case have extrinsic evidence of a recent (less than 10 years old) felony conviction against him introduced without first questioning the witness?

Answer 63

YES. Extrinsic evidence of a conviction may be introduced without first questioning the witness about the conviction.

Question 64

Can non-medical communications made to an attorney in the presence of a doctor hired by the attorney for the purpose of the lawsuit be admitted into evidence?

Answer 64

NO, unless the doctor is expected to testify.

Attorney-client privileges attach when a 3d party is present ONLY when the 3d party is employed to assist the attorney in rendering legal services, including experts hired for the litigation, UNLESS the expert is expected to testify.

Question 65

What are the prohibited motivations for making a peremptory challenge?

Answer 65

Race and gender.

Question 66

When is an indigent defendant entitled to counsel during a hearing for probation revocation?

Due Process & Sixth Amendment

Answer 66

Right to counsel arises when:
The probationer asserts that the alleged probation violation was NOT committed (Due Process)
OR
Complex reasons justified or mitigated violation (Due Process)
OR
Sentencing has not yet been imposed and will be imposed if probation is invoked (6th Amendment)
-This means that no sentence has been imposed (a suspended sentence is considered to have been imposed). If no sentence was imposed and the probation came before sentencing, and sentencing was to commence if probation violated, this means right to counsel arises.

Right to counsel does NOT arise when:
Probationer admits to probation violation
OR
A sentence has already been imposed and was merely suspended during probation

If a judge imposes a sentence of 6 months but does not execute it and instead permits the defendant to go on probation instead, the sentence of 6 months HAS been imposed, it just has not been executed.

Question 67

Can inconsistent verdicts, i.e. those that are logically incompatible, be challenged on appeal?

Answer 67

NO.

While a defendant could challenge a verdict based on the argument that the verdict was not supported by sufficient evidence, an inconsistent verdict cannot be challenged, because a jury’s verdict, even when based on mistake, is not to be disturbed.

Question 68

What are the protections created by “use and derivative use immunity?”

Answer 68

Inadmissible in later prosecution, EVEN as impeachment.

Testimony given under a grant of immunity is coerced and therefore involuntary. Any criminal-trial use of such testimony outside the context of a perjury prosecution constitutes a denial of fue process. Therefore, it is NOT constitutionally proper for grand jury statements offered in exchange for immunity to be used against the witness later, EVEN as impeachment (but it is permissible during a related perjury prosecution).

A person subpoenaed to testify before a grand jury who has invoked the Fifth Amendment privilege against self-incrimination can be compelled to testify if she is granted use and derivative use immunity. This prevents the person’s testimony, and any evidence derived from it, from being used against her in any way that could lead to a criminal prosecution. But the government can still prosecute the person using evidence obtained elsewhere.

Question 69

What is required to be shown to overturn a conviction based on the claim that the defendant’s counsel had a conflict of interest?

Answer 69

To overturn a conviction based on a conflict of interest, a defendant must show that there was an actual conflict of interest and that such conflict adversely affected the attorney’s performance.

Question 70

What is required to overturn a conviction based on a claim of ineffective counsel that is NOT related to a conflict of interest?

BPO

Answer 70

BPO
Below Prejudiced Outcome

T.o reverse a conviction on the ground of ineffective counsel (but without a conflict of interest), the claimant has the burden to show that:
1. the counsel’s representation fell below an objective standard of reasonableness
AND
2. the counsel’s deficient performance prejudiced the defendant
RESULTING
3. in the reasonable probability that the outcome would have been different

Question 71

When a state’s long arm statute grants the state personal jurisdiction to the maximum extent permitted under the constitution, what degree of contacts with the state will subject a corporation to specific personal jurisdiction in a state where the corporation is not a citizen and where the incident did not occur?

Answer 71

When the transaction or occurrence that the cause of action arose from is related enough to the company’s contacts in the forum state, that the corporation could reasonably anticipate being brought into court there, the corporation is subject to specific personal jurisdiction there.

Thus, if a passenger aboard a cruise ship is injured because of the ship’s negligence in State C, and the ship spends a good deal of time docked at a port in state B, the cruise ship company could reasonably anticipate being brought into court in State B for matters like the one that occurred in State C, and thus personal jurisdiction exists there.

Question 72

When is a corporation subject to general personal jurisdiction in a state, not including where the corporation is a citizen?

Answer 72

The proper inquiry is whether a corporation’s affiliations with the forum state are so “continuous and systematic” as to render the corporation essentially “at home” in the forum state

Question 73

Is it ever proper for a prosecutor to express their opinion about a defendant’s guilt or innocence?

Answer 73

NO. It is never proper for a prosecutor to express their opinion of a defendant’s guilt or innocence.

Question 74

Must a defense counsel inform the defendant of the possibility that a guilty plea may affect the defendant’s immigration status?

Answer 74

YES.

Failure to do so constitutes deficient performance. This is the case even when the evidence against the defendant is overwhelming, so long as there is a reasonable possibility that the defendant would have gone to trial rather than accept the plea had the counsel informed them about the immigration risks.

Question 75

What is constitutionally required for a defendant to represent himself?

KIV

Answer 75

KIV
Knowing Intelligent Voluntary

A criminal defendany may only waive their 6th Amendment right to counsel and engage in self-representation if the waiver is made:
1. knowingly, meaning:
…a) aware of right to counsel
2) intelligency, meaning:
…a) understands nature of charges
…b) knows range of punishment
…c) recognizes disadvantages of self-representation
AND
3. voluntarily, meaning:
…a) waiver is given freely
…b) not choosing self-representation over incompetent counsel

Question 76

When is a warrantless search reasonable under the exigent circumstances exception?

PEHP

Answer 76

PEHP
Probable Evidence Harm Pursuit

Exigent circumstances exist when police have:
1. Probable cause to believe that a warrantless entry and/or search is needed to
2. Prevent imminent destruction of relevant evidence (evanescent evidence)
3. Protect police and/or the public from immediate physical harm (emergency); OR
4. Pursue a fleeing suspect after a felony occurs (hot pursuit)

Question 77

Is a warrant required to obtain a suspect’s historical cell-phone site location from the cellular phonr provider?

Answer 77

YES.

Under the third-party doctrine, individuals generally have no reasonable expectation of privacy in information voluntarily turned over to a third party (like financial records given to a bank). No warrant is required for such information.

HOWEVER, individuals have a reasonable expectation of privacy in their extensive physical movements captures by historical cell-phone site-location data, even if held by a third party (cell-phone provider). Therefore, a warrant is required for such a search.

Question 78

When does the one-year limit to contracts that do not fall within the statute of frauds begin counting?

Answer 78

The day after the contract is made. Thus, under a unilateral contract, the one year time limit would begin on the day after offeree’s performance begins.

The statute of frauds requires that contracts be fully performable within one year of its making, otherwise it must be in writing.

Question 79

When does “jeopardy” attach so that a repeat of it could amount to double jeopardy?

Answer 79

Jeopardy attaches when:
1. The jury is impaneled and sworn in a jury trial; OR
2. The judge begins to hear evidence (first witness sworn in), in a bench trial

Question 80

Is a cop bringing a drug-sniffing dog onto the front porch of an individual without a warrant a 4th Amendment invalid search by intruding on the defendant’s curtilage?

Answer 80

YES.

The front yard and porch are as much the curtilage as the backyard, and a drug-sniffing dog’s presence constitutes a search, thus bringing the animal onto the front porch is a search of the curtilage.

Question 81

When can statements made by a defendant who has not been Mirandized be admitted as evidence?

Answer 81

When the statements were voluntary (not elicited by interrogation) AND defendant has testified at trial and the prior non-Mirandized voluntary statement is offered solely as impeachment evidence

Question 82

What constitutes interrogation for 5th Amendment purposes?

Answer 82

Interrogation is either express questioning by the police or any words or actions that the police know or should know are reasonably likely to elicit an incriminating response

Question 83

Does an indicted defendant have a 6th Amendment right to counsel at a preliminary hearing where they are merely informed of their charges and rights?

Answer 83

NO.

This is not a “critical state” of the prosecution. The arraignment would be a critical state, but this is pre-arraignment.

Critical States:
1. Post-indictment interrogations & lineup
2. Post-indictment preliminary hearings and arraignment
3. Plea negotiations & hearings
4. Trial & sentencing
5. Appeals

Question 84

What is the constitutional requirement as to the specificity of an aggravating circumstance that can give rise to capital punishment?

Answer 84

In order to impose the death penalty, the aggravating circumstance cannot be unconstitutionally vague. Labeling a crime as “heinous or brutal” has been held unconstitutionally vague.

Question 85

What is the rule about presumptions contained within jury instructions in a criminal case?

Answer 85

Jury instructions CANNOT shift the burden of proof on any material fact to the defendant. Jury instructions that use the word “must” regarding conclusions or presumptions are interpreted to shift such a burden.

Rebuttable presumptions do not necessarily shift the burden of proof, depending on the facts. Conclusory instructions do, however.

Question 86

Is an arrest for a non-jailable misdemeanor an unreasonable seizure?

Answer 86

NO.