Crim Pro Flashcards
Transactional Immunity
Cannot get prosecuted for the underlying crime
Use immunity
Testimony cannot be used to prosecute you
Does derivative use immunity protect a W from use of W’s testimony in a subsequent civil trial?
No
5A
Privilege against self-incrimination (Testimonial in nature)
Does 5A Privilege Against Self-Incrimination apply in civil proceedings?
Yes, 5A privilege must be granted by states through the 14A
Does failure to “knock and announce exclude evidence under the exclusionary rule?
No, not unless the warrant was not valid, but the police officer likely will receive §1983 sanctions
Can undercover cop question man in custody after he has invoked his 6A right to counsel?
No
Dual Sovereignty Doctrine
Prosecution of a ∆ by the federal gov’t for a crime arising out of an event does not prevent a state from prosecuting the ∆ for a crime arising out of the same event and
vice versa for (state v. fed) & (state v. state)
Car Arrest, what items can be searched/seized?
(officer) safety and fruits of the arrest (i.e., evidence for the suspected crime)
Must counsel be present for a photo array?
No
Should search stop once evidence to the cause the warrant is grounded on has been seized?
Yes, otherwise it exceeds the scope of the warrant
5A Grand Jury Cl
requires ∆ to be indicted by a grand jury for any “capital or otherwise infamous crime”
Is 5A Grand Jury Cl. applicable to states under 14A DPC?
No
Does 4A exclusionary rule apply to civil proceedings?
No
Can a police stop/arrest a suspect on the basis of reasonable suspicion that suspect has committed a specific crime?
The police may stop but cannot arrest
8A Excessive Bail Cl
when bail is set, it cannot be excessive (i.e., set higher than an amt REASONABLY calculated to ensure ∆’s PRESENCE AT TRIAL)
Is there a ceiling to 8A Excessive Bail Cl?
No
Can the state impose a strict cutoff that precludes a finding of intellectual disability
No, prohibits 8A, bc the rule creates an unacceptable risk that a person w/an intellectual disability will be executed
Gov’t must prove that ∆ waived his Miranda rights during a custodial interrogation by
Preponderance of the evidence
search
Government searching where there is a reasonable expectation of privacy
Open Fields Doctrine
Open areas w/ no expectation of privacy is not a search
probable cause
a reasonable person would conclude it is more probable than not that a crime has taken place
Warrant elements
- issued by a detached magistrate
- facts must be fresh
- persons places must be specific
- cannot exceed the scope
Once search uncovers the thing he was looking to find under the warrant, the search must
STOP
illegal search will not automatically dismiss indictment. T/F
True
protective sweep reqs
Only for:
1. search for additional criminals or
2. allowed for the safety with proof of others present
Warrantless exceptions (crim pro)
- consent to the search (one who controls/apparent authority over the property)
- search incident to lawful arrest
- arrest of a car occupant
- inventory search
- HIGHLY REGULATED INDUSTRY
- exigent circumstances
If 2 people own the property and only one occupant consents to the search and the other refuses,
Police cannot search
If 2 people own the property and only one occupant is available and consents to the search,
Police can search
Search incident to lawful arrest
- arrest must be lawful
- search of person/wingspan
Arrest of Car Occupant, police may search if:
- occupant is unsecured (i.e., not in handcuffs) and
- reasonable belief of evidence of the (specific) crime of arrest
Inventory Search
After arrest at the police station, police can search the person/car
Exigent Circumstanes
- Reasonable belief evidence may be lost/destroyed
- hot pursuit
- emergency situation that could harm police/the public
If the facts don’t provide evidence there’s exigent circumstances scenario, it is a warrant issue
Illegal Automobile Stop
If there was no reason to pull the car over, then anything found is not admissible
Legal Automobile Stop
Police cannot search the car UNLESS some evidence of other crimes (police can only search for evidence as to the specific probable cause they may have)
But police does not have a right to search the contents of the car itself
Probable Cause of Automobile Stop
Police may search the entire car if probable cause the car is carrying contraband
Search outside U.S.
Crim Pro
US officials may search you on foreign land
Stop & Frisk
Stop - when reasonable suspicion criminal activity is afoot
Frisk - when there is reasonable belief person is armed & dangerous
Custody
A reasonable person under the same circumstances do not feel free to leave
Interrogation
When police is trying to elicit some criminal response
Miranda rights only when
custody AND interrogation
If a person in custodial interrogation asks for a lawyer,
ALL questioning must stop
waiver of miranda rights
must be knowingly & voluntary
(totality of circumstances)
Right Against Self-Incrimination
- never required to testify
- may be required to perform physical acts
- cannot be forced to make statements
Out-of-court ID that was suggestive and subsequent in-court ID was reliable
Then in-court identification cam be used against you
Right to counsel for lineups
- No right to counsel PRIOR to indictment
- Right to counsel AFTER indictment
5A right to counsel…
BEFORE charges/indictment
6A right to counsel…
AFTER formal charges
Right to effective counsel (Crim Pro)
- Did lawyer deviate from the norms
- Reasonable probability the outcome would have been different
criminal ∆ has right to counsel
at all CRITICAL STAGES of prosecution (generally after indictment)
typically, no right to counsel pre-indictment
Undercover officer in jail cell violates
right to counsel
but not Miranda
guilty plea must be entered
voluntarily & intelligently
Competency (in Fair Trial)
- ∆ must be competent to understand charges
- ∆ may be medicated
state trial by 6 members
must be unanimous
state trial by 12 members
need not be unanimous
federal trial by 12 members
must be unanimous
exclusion of juror based on race/gender
violates EP
criminal ∆ has right to public trial
- press may attend UNLESS overriding interest
- does not apply to Grand Jury
A co-∆’s confession can only be used against the other
If available to testify
non-testimonial statements
made during an emergency
right to confront out-of-court statements
- testimonial statements are inadmissible
- non-testimonial statements (emergency) are admissible
criminal ∆’s burden of proof
preponderance of the evidence
Mandatory presumptions in criminal cases
violate DP!
Not permitted
jeopardy attaches in a jury trial when
jury is sworn in
jeopardy attaches in a bench trial when
the first witness is sworn in
collateral estoppel in double jeopardy
no retrial allowed when second trial requires an element the ∆ was acquitted of
rights during sentence
- right to counsel
- right to remain silent
death penalty is not cruel & unusual punishment as long as
there are procedural safeguards to prevent arbitrary or discriminatory sentencing
death penalty exceptions
- minors under 18
- mentally challenged
If police believe they have consent to search the whole property, when roommate only has exclusive control over his portion of the home,
The evidence found from unconsented ∆’s portion of the house is admissible bc police reasonably believed they had consent
Do administrative searches of commercial establishments require a warrant?
YES
Highly regulated industries don’t require warrants if:
- statute/regulatory scheme involves subst’l gov’t interest
- warrantless search necessary to further interest; AND
- statute provides const’lly adequate substitute for the warrant
Double jeopardy and mistrial
double jeopardy does not bar mistrial if
1. ∆ requested the mistrial OR
2. based on manifest necessity–(a) an unforeseeable event made it highly necessary to end the proceedings AND (b) judge exercised sound & rat’l decision before doing so
