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Crim Pro Flashcards

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1
Q

exclusionary rule

A
  • prevents introduction at a subsequent criminal trial of evidence unlawfully seized
  • suppression decisions made by a judge; factual findings are reviewed for clear error while findings of law are reviewed de novo
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2
Q

government conduct

A

publicly paid police, private person directed by police, or deputized private police

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3
Q

arrest

A

unreasonable seizure of persons

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4
Q

seizure

A

when police, by means of physical force/show of authority, intend to terminate/restrain freedom of movement

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5
Q

analysis in determining seizure

A

totality of circumstances
- if police intent to restrain is ambiguous, or
- if def’s submission is only passive acquiescence:
then a seizure occurs if totality of circumstances would lead reasonable innocent person to believe he is not free to leave

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6
Q

stop and frisk

A

temporary detention that constitutes seizure if the officer, by means of physical force/show of authority, has in some way restrained (physical restraint or an order to stop) the liberty of a citizen

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7
Q

arrest warrant

A

must be issued by detached/neutral magistrate upon finding of probable cause and describe with particularity the def and crime

  • deficient warrant does not invalidate arrest as long as there was PC (no warrant required for proper arrest based on PC)
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8
Q

search warrant

A

(i) issue by detached/neutral magistrate
(ii) upon finding of PC
(iii) supported by oath or affidavit
(iv) must describe with particularity places to be searched and items to be seized (reasonable belief that contraband will be found)

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9
Q

facts supporting probable cause for a warrant

A
  • officer’s personal observations
  • information from reliable, known informant or verified unknown informant
  • evidence seized during stop and based on reasonable suspicion, discovered in plain view, or during consensual search
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10
Q

particularity for warrants

A
  • must specify place to be searched and objects to be seized
  • can also refer to contraband as “other fruits, instrumentalities, or evidence of crime at this time unknown” and still be valid
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11
Q

knock & announce rule

A

police must generally announce purpose when executing a warrant (unless state allows exception for exigent circumstances)

  • violation does not trigger exclusionary rule
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12
Q

warrantless arrests

A
  • warrant not needed in public place or for felony or misdemeanor in arresting party’s presence, but invalid arrest alone not a defense to crime charged (but will affect seizure of evidence)
  • in determining whether a crime has been committed: whether an officer could conclude–considering all of the surrounding circumstances–that there was a substantial chance of criminal activity
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13
Q

reasonable expectation of privacy (REP) for home, private room, or office

A

home and curtilage, motel rooms, and business premises are protected; use of drug-sniffing dog is a search if physically intrudes onto constitutionally protected property

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14
Q

REP for luggage

A

luggage: REP for invasive searches but not canine sniff

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15
Q

automobiles (REP)

A

automobiles: need reasonable suspicion of law violation to effectuate a stop, and PC for pretextual stops when traffic law violated to investigate whether another law has been violated; fact that a person in lawful possession of a rental car is not listed on the rental agreement does not defeat his REP

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16
Q

open areas (REP)

A

outside curtilage–no reasonable expectation of privacy

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17
Q

odor from car (REP)

A

no REP

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18
Q

technological device (REP)

A

attaching a tracking device to a person without consent is a search; collecting cell-site location information from a wireless carrier to track a person requires a warrant

physically intruding on a suspect’s property to install a technological device may be a search

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19
Q

exceptions to search warrant requirement

A

incident to lawful arrest: must be reasonable in scope and incident to a lawful arrest

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20
Q

wingspan search

A
  • must be reasonable in scope and incident to a lawful arrest
  • includes contemporaneous search of person/immediate surrounding area including pockets/containers (does NOT include cell phone or laptop unless exigent circumstances exist)
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21
Q

home search

A
  • must be reasonable in scope and incident to a lawful arrest
  • “protective sweep” is permissible, even without PC or reasonable suspicion; includes immediately adjoining place of arrest in home from which an attack could be launched and in which a person might be hiding (adjacent rooms, closets, showers)
    – search area can be broadened if based on reasonable suspicion that confederates are hiding beyond these immediately adjacent areas
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22
Q

vehicle search (incident to lawful arrest)

A
  • arrestee is within reaching distance of passenger compartment (weapons/evidence) during search, or
  • reasonable that evidence of the offense of arrest might be in vehicle
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23
Q

exigent circumstances

A

totality of circumstances test:
- must have PC and exigent circumstances
- police may not create the exigency by threats or conduct that violates 4A

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24
Q

hot pursuit

A
  • police in pursuit of a suspect can seize “mere” evidence (not fruits/instrumentalities of crime) from a private building if they have PC to believe the suspect committed a felony
  • may also act without warrant if they have PC that suspect committed a misdemeanor and the totality of the circumstances shows an emergency
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25
Q

emergency

A

reasonable apprehension that delay in getting warrant would result in immediate danger of evidence destruction, police/public safety or fleeing felon (judged by police officer’s objective reasonable belief)

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26
Q

stop (Terry stop)

A

reasonable suspicion (totality of circumstances), based on articulable facts that detainees involved in illegal activity, and is a limited/temporary intrusion on def’s freedom of movement

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27
Q

frisk

A

officer without PC may pat down a person’s outer clothing if the officer has reasonable suspicion that the suspect was/is involved in criminal activity and that the frisk is necessary for safety

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28
Q

“plain feel” exception

A

if officer conducting a valid frisk feels an object whose identity is immediately obvious (i.e., PC of contraband) it can be seized

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29
Q

passenger compartment search (during stop & frisk)

A

permitted if police have reasonable belief suspect is dangerous and may get immediate control of weapons, and the search is limited to places where a weapon could be hidden

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30
Q

limitations on stop & frisk

A

least intrusive means reasonably available to frisk for weapons only, but if suspicion becomes PC, then officer can make arrest and conduct a full search

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31
Q

automobile exception

A

can search any part of car (compartments, particular containers (including luggage), trunk, etc.) IF PC that it contains contraband/evidence of crime

does not permit warrantless entry of home or curtilage in order to search a vehicle therein

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32
Q

“plain-view” doctrine

A

in public view: no REP
in private view: officer on premises for lawful purpose, incriminating nature of item immediately apparent, officer has lawful access to item

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33
Q

consent

A

must be voluntary: no threats of harm, compulsion, or false assertion by lawful authority (totality of circumstances); but gov agent may pretend to be someone else

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34
Q

consent by third party

A

can consent to own property search, but def’s property only if agency relationship to def or def assumes the risk of search when giving right to third party to consent to search

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35
Q

warrant authorizing wiretapping

A
  • limited period of time
  • PC that a specific crime has been or is about to be committed
  • identify persons and describe particular conversations to be tapped
  • when to terminate tapping
  • reveal intercepted conversation to court
36
Q

standing to object to search

A

def must show a legitimate expectation of privacy with regard to the search

37
Q

fruit of the poisonous tree

A

applies not only to evidence initially seized as a result of government illegality but also to secondary derivative evidence resulting from primary taint

38
Q

exceptions to exclusionary rule

A
  • inevitable discovery: in same condition through lawful means
  • independent source: unrelated to tainted evidence
  • good faith: applies to police relying in objective GF on either facially valid warrant later found invalid or existing law later held unconstitutional; does not apply if no reasonable officer would rely on affidavit underlying warrant, warrant defective on its face, warrant obtained by fraud, magistrate wholly abandons judicial role, or warrant improperly executed
  • isolated police negligence: not enough to trigger exclusionary rule; must be sufficiently deliberate that exclusion can meaningfully deter it
  • knock and announce: exclusionary rule doesn’t apply when police fail to knock and announce their presence
  • in court ID: not fruit of an unlawful detention
39
Q

harmless error in exclusionary rule

A

court can refuse to order new trial if error harmless beyond reasonable doubt, i.e., illegal evidence did not contribute to result

40
Q

5A self-incrimination privilege

A

no person shall be compelled in criminal case to testify against himself; applies to states through 14A

41
Q

waiving 5A privilege

A

def waives by taking the stand and answering prosecution’s questions

witness waives by disclosing self-incriminating information in response to a specific question

42
Q

5A immunity

A

prosecution may compel incriminating testimony if it grants immunity; precludes use by another US jurisx to prosecute the def

transactional: blanket or total immunity, fully protects a witness from future prosecution for crimes related to testimony

use and derivative-use: only precludes use of witness’s own testimony

43
Q

5A in a police interrogation context

A

any incriminating statement obtained as a result of custodial interrogation may not be used against suspect at subsequent trial unless police inform subject of Miranda rights

44
Q

custodial interrogation

A

custodial: substantial seizure, i.e., formal arrest or restraint of freedom equivalent to arrest; would reasonable person believe he could leave?

interrogation: question and also words/actions reasonably likely to elicit incriminating response
- voluntary statements not protected
- confessions involuntary only if coerced by police (totality of circumstances)

45
Q

compliant content/timing of Miranda rights

A
  • warning must be given BEFORE interrogation begins (or given again if stopped for long time then resumed)
  • need not be verbatim, but must inform suspect of right to remain silent, any statement can be used in court, right to an attorney (or one will be appointed)
46
Q

5A right to counsel

A
  • suspect must make a specific, unambiguous statement asserting his desire to have counsel present
  • once invoked, all interrogation must stop until counsel is present, UNLESS:
    – suspect may voluntarily initiate communication with police (including spontaneous statements), or
    – 14-day or more break in custody and fresh Miranda warnings are given
47
Q

5A right to silence

A
  • suspect must make specific, unambiguous statement asserting his desire to remain silent (mere silence is not enough)
  • interrogator must scrupulously honor right if invoked, but if suspect indicates desire to speak, subsequent interrogation lawful if suspect not coerced, and Miranda warnings must be given again
48
Q

exceptions to compliance with Miranda rights

A
  • public safety
  • routine booking questions
  • undercover police
49
Q

fruits of a tainted confession

A

Miranda violation doesn’t automatically result in suppression of incriminating statements made after second warnings given

but, second confession inadmissible if circumstances make it clear police approach was intentional attempt to circumvent Miranda

50
Q

6A right to counsel: types of proceedings

A

any case in which actual/suspended incarceration is imposed

51
Q

6A right to counsel: applicability

A
  • automatically applies at all critical stages of prosecution after formal proceedings begin
  • right automatically attaches when formal judicial proceedings have begun (e.g., post-arrest initial appearance before a judicial officer, formal charge, preliminary hearing, indictment, information, or arraignment)
  • no right to counsel at post-conviction proceedings (e.g., parole, probation)
52
Q

waiver of 6A right to counsel

A
  • must be voluntary, knowing, and intelligent
  • receiving a Miranda warning sufficiently apprises a person of his 6A rights and the consequences of waiving those rights
53
Q

subsequent waivers of 6A right to counsel

A

if an accused has not actually asserted his right to counsel (e.g., court automatically appoints counsel), there is no presumption that any subsequent waiver of the right to counsel will be involuntary; if an accused actually asserts the right to counsel, then subsequent waivers are presumed involuntary, but only in a custodial setting

54
Q

police interactions after 6A rights attach

A

police may initiate non-custodial interactions with the accused outside presence of lawyer with no presumption that any knowing waiver of the right to have counsel present for the interaction is involuntary

55
Q

right to proceed pro se

A

def can refuse counsel and proceed pro se at trial
- court should warn def of dangers and disadvantages, and may appoint “standby counsel”
- def may be competent to stand trial yet incompetent to represent himself

56
Q

withholding information re: 6A right to counsel

A

police have no obligation to inform def that counsel has been trying to reach him unless 6A has attached

57
Q

Blockburger test

A

two different crimes in one criminal transaction deemed to be same offense unless each offense requires proof of an element that the other does not

58
Q

6A offense-specific Miranda comparison

A

unlike Miranda, presence of counsel only applies to interrogations about offense charged, and police must deliberately elicit the incriminating statement to create a violation

like Miranda, def may make knowing/voluntary waiver of right

59
Q

effect on conviction when def is denied counsel

A

conviction is automatically reversed even without specific showing of unfairness

60
Q

effect on guilty plea when def is denied counsel

A

def has right to withdraw plea and can’t be used against him as an admission

61
Q

nontrial proceeding (denial of 6A counsel)

A

harmless-error analysis

62
Q

effect on def’s statements to informants when denied 6A counsel

A

post-indictment statement to informant where situation is likely to induce def to incriminate himself without counsel is inadmissible (but police may place an informant in def’s cell to listen without questioning def)

63
Q

ineffective assistance of counsel

A

claimant must show:
- counsel’s representation fell below objective standard of reasonableness; AND
- counsel’s deficient performance prejudiced def, resulting in the reasonable probability that the outcome would have been different
– mere inexperience, strategy, or failure to produce mitigating evidence insufficient
– prejudice presumed if deficient performance costs def an appeal, even if def signed a waiver of his right to appeal as part of a guilty plea, or if def was not informed that a plea carried a risk of deportation

64
Q

conflict of interest (ineffective assistance)

A

representation of defs with conflicting interests may amount to ineffective assistance of counsel

must show actual conflict and an adverse effect on counsel’s performance

65
Q

actual conflict

A

occurs when a court determines that the defense atty is subject to an obligation/unique personal interest that, if followed, would lead her to adopt a strategy other than that most favorable to def

66
Q

adverse impact

A

occurs when a plausible alternative strategy/tactic might have been pursued but was inherently in conflict with, or not undertaken, due to attorney’s other loyalties or interests

67
Q

types of eyewitness ID procedures

A

corporeal: in person (e.g., lineups)
non-corporeal: not in person (e.g., photo arrays)

68
Q

impermissibly suggestive identification procedures (due process)

A

two-prong test:
- def must prove ID was impermissibly suggestive; and
- substantial likelihood of misidentification

prosecution may prove that it was nonetheless reliable (opportunity to view, degree of attention, accuracy of witness’s description, level of certainty, length of time)

69
Q

remedy for impermissibly suggestive identification procedures

A

suppression hearing (usually outside jury’s presence) to determine admissibility

finding of impermissibly suggestive procedures will result in suppression

70
Q

probable cause to detain

A
  • must be held within 48 hours of arrest to determine PC
  • 4A guarantees def right to be released if no PC
  • no remedy if detention is unlawful (other than exclusion of evidence)
71
Q

initial appearance

A

judge advises def of the charges and his rights and appoints counsel if def is indigent; judge may also decide conditions of bail and accept a plea

72
Q

right to bail

A

no constitutional right to bail, but denial of or excessive bail must comply with Due Process Clause

73
Q

competency

A

def must comprehend nature of proceedings against him and have ability to consult with lawyer with reasonable degree of rational understanding to be competent to stand trial

74
Q

grand juries

A

def has no right to present/confront witnesses or introduce evidence, and no dismissal due to procedural defect unless substantial impact on decision to indict

intentional racial discrimination in selection of grand jurors results in overturn of conviction

75
Q

state’s duty to disclose

A

affirmative duty to disclose to def any material evidence favorable to def and relevant to prosecution’s case-in-chief that would negate guilt or diminish culpability/punishment

76
Q

failure of state to disclose

A

grounds for reversal if def shows:
- evidence is favorable to def; and
- failure to disclose caused prejudice against def

77
Q

double jeopardy

A

protects against second prosecution for same offense after acquittal/conviction and against multiple punishments for the same offense

78
Q

same offense

A

Blockburger test applied if def’s conduct can be prosecuted as two or more crimes so it generally bars successive prosecutions for greater/lesser included offenses unless jeopardy attaches to lesser included offense before event necessary for greater offense

79
Q

double jeopardy attachment

A

when jury is impaneled/sworn in or when first witness is sworn in for bench trial

80
Q

double jeopardy in different jurisdictions

A

def can be charged/convicted in federal and state court

81
Q

first appeal as of right

A

def is guaranteed equal protection and right to counsel (but an attorney may withdraw and there is no right to self-representation)

82
Q

discretionary appeal

A

indigent def does not have right to appointment of counsel unless conviction was based on a guilty or nolo contendre plea

83
Q

harmless error

A

an error that does not affect substantive rights; will not serve as grounds for reversal

84
Q

plain error

A

def who failed to preserve claim of error is entitled to appellate relief when:
(i) the district court committed error under the law in effect at the time the appeal is heard;
(ii) the error is obvious under that law; and
(iii) the error affected the def’s substantial rights

85
Q

convictions

A

def can attack conviction after unsuccessful appeal under writ of habeas corpus (civil action, so standard is preponderance of evidence)

86
Q

tests for attack on conviction

A

(i) the unlawful detention had a “substantial and injurious” effect/influence on the verdict; and
(ii) court’s decision was contrary to law or based on an unreasonable determination of facts

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