Crim Pro

Question 1

Fifth Amend

Answer 1

Privilege against self-incrimination

Prohibition against double-jeopardy

Question 2

Sixth Amend

Answer 2

Right to Speedy Trial
Right to trial by jury
Right to confront witnesses
Right to assistance of counsel

Question 3

Eighth Amend

Answer 3

Death Penalty

Prisoner Rights

Question 4

Exclusionary Rule

Answer 4

Victim of illegal search or coerced confession can have that evidence excluded from subsequent criminal prosecution.

Question 5

Limitations of Exclusion

Answer 5

Does not apply to grand jury proceedings
–Grand Jury witness can be compelled to testify based on illegal seized evidence.

Not available in civil proceedings

Not available in parole revocation proceedings

• *Doesn’t apply to the use of excluded evidence for impeachment purposes.
• -All illegally seized evidence may be admitted to impeach the credibility of the D’s trial testimony. Miranda violations qualify here.
• -Only D’s testimony may be impeached, NOT the testimony of other defense witnesses.

Exclusion not available for knock-and-announce rule in the execution of search warrants.

Question 6

Fruit of Poisonous Tree Doctrine

Answer 6

Doctrine excludes illegal seized evidence plus all evidence obtained or derived from policy illegality.

This does not apply to Miranda violations UNLESS police act in bad faith in obtaining such information.

Question 7

Breaking the Fruit Chain

Answer 7

Independent source doctrine
Inevitable discovery doctrine
Intervening acts of free will on part of D

Question 8

How does the exclusionary rule affect a conviction?

Answer 8

Won’t necessarily overturn.

Ct. applies harmless error doctrine.

Conviction upheld if the conviction would have resulted despite the improper evidence.

Question 9

Arrests and Detentions

Answer 9

Arrest must be based on PC
Arrest warrants are generally not required for arresting in public place.
Non-emergency arrest of an individual in his home DOES require an arrest warrant.
Police need PC to compel you to go to police station for fingerprinting or interrogation .

Question 10

Basics of Terry Stop

Answer 10

Can detain with reasonable suspicion supported by articulable facts of criminal activity. (Hunch not enough)

Reasonable suspicion depends on totality of circumstances.

Auto stops: Police may stop a car if they have at least reasonable suspicion that the law has been violated. EXCEPTION: Check point/road blocks/border crossing/DWI check (must be neutrally applied)

Question 11

Traffic Stop and Puppy Dogs

Answer 11

Sniff is not a search so long as police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.

• -Dog alert can establish PC to search
• -Dog sniff outside house cannot be used.

Question 12

Search and Seizure Model Answer Outline (5 steps)

Answer 12

Gov't Conduct?
Reasonable Expectation of Privacy?
Valid Search warrant?
No warrant? Good faith basis?
No warrant? Exceptions to warrant?

Question 13

What is gov’t conduct?

Answer 13

Publically paid police on or off duty
Private person acting at the direction of the public police.
–Privately paid police must be deputized w/ power to arrest you.

Question 14

What is a reasonable expectation of privacy?

Answer 14

Automatic categories

• -Own the premises searched
• -Live on premises searched, whether you have ownership interest or not.
• -Overnight guests have standing to object to the legality of the search of the place they are staying.

Sometimes Category
–Own premises searched but there must be reasonable expectation of privacy in the item or area searched.

No Standing Category
–No expectation for anything you “hold out to public” everyday, such as: sound of voice, handwriting style, paint on outside of car, acct records held by a bank, monitoring the location of your car on a public streeet or in driveway (GPS put on car is search though), anything that can be see across open field, seen from public airspace, odors emanating from luggage, garbage set out on the curb for collection (garbage leaning against house is private).

Question 15

When do police have a valid search warrant?

Answer 15

Two core requirements for FACIALLY valid search warrant: PC and particularity.

PC= Clear probability that item of a crime will be found in the area searched.

Particularity: must state with particularity the place to be searched and the things to be seized.

Question 16

Using informants for warrants

Answer 16

Sufficiency determined by T and C

Basis of knowledge and credibility are all relevant factors in making this determination.

Cannot be based solely on anonymous tip but can be partially based on anonymous tip.

Question 17

When is no knock permitted in executing a warrant?

Answer 17

Officer need not “knock and announce” if knocking and announcing would be dangerous, futile, or inhibit the investigation.

Biggest fear is destruction of evidence.

Question 18

When does an officer’s good faith save the defective search warrant?

Answer 18

Good faith reliance overcomes defects w/ PC or particularity.

Four exceptions to this rule:

• -Aff. so lacking in PC that no reasonable officer would rely on it.
• -Aff. underlying the warrant is so lacking particularity that no reasonable officer would have relied on it.
• -Police or prosecutor lied to or misused the magistrate when seeking a warrant.
• -Magistrate is biased, and therefore has wholly abandonment his or her neutrality.

Question 19

If a warrant is invalid and cannot be saved by the good faith defense or if thepilice never had any warrant at all, what exceptions can be used for the warrant requirement?

Answer 19

Search incident to constitutional arrest

• • arrest is unlawful then search is
• -arrest and search must be contemporaneous in time and place
• -Person and the area within person’s wingspan.
• -Can search car but
• –1) Only when arrestee is unsecured and can gain access to the interior of the vehicle OR 2) police reasonably believe that evidence of offense for which the person was arrested may be found in the vehicle. Doesn’t matter what was found even if different from what was expected.

Plain View
Officer must be legitimately present at the location where he or she does the viewing of the item seized.
It must be immediately apparent that the item is contraband or a fruit of a crime.

Consent
Must be coluntary

3rd Party Consent
2 or more have an equal right to use a piece of property, either can consent to its warrantless search. However, if both present and one says no and one says yes, yes trumps.

Stop and Frisk
Pat down of outer clothing to check for weapons.
–If PC arises can become an arrest and full search can be conducted.
–Auto stops: Believes driver or passenger may be armed & dangerous, officer can 1)conduct a frist of the person and 2) may search vehicle.

Evanescent Evidence, Hot Pursuit, Special Needs

• Blood sample needs warrant
• Hot pursuit: w/in 15 minutes behind felon
• -If truly in hot pursuit, can enter anyone’s home w/o warrant and any evidence in plain view will be admissible.

Inventory Searches
-Before incarceration, police can search 1) arrestee’s personal belongings, 2) arrestee’s entire vehilce.

Public School Searches
Public school children engaged in extra curricular activities (even chess) can be randomly drug tested (covers school dance)
Warrantless searches of kid’s effects (purses/backpacks) can be searched to investigate violations of school.
School search only reasonable if 1) it offers a moderate chance of finding wrongdoing; 2) the measures adopted to carry out the search are reasonably related to the objectives of the search; and the search is not excessively intrusive.

Question 20

Wiretapping and Eavesdropping

Answer 20

Requires a warrant

Exceptions: “Unreliable ear” and “uninvited ear”

• -Everyone assumes risk that person they are talking to will consent to the gov’t monitoring the conversation or will be wired– therefore no 4th amend. objection
• -No 4th amend. right if she makes no attempt to keep conversation private.

Question 21

Confessions: What is a sufficient Miranda warning?

Answer 21

Verbatim not required, so long as substance delivered.

Custodial interrogations trigger Miranda warnings.

Question 22

Standard for determining custody?

Answer 22

You are in custody if reasonable person would not feel free to leave.

• -Ct. will look at whether situation presents the same inherently coersive pressures as a station house questions.
• -Normally “not free to leave” standard normally applies to being in a cop car or jail, but your home or a hospital bed may also reach the same level.

Probation interviews and traffic stops NOT custodial.

Question 23

Interrogation

Answer 23

Under 5th amend. miranda doctrine, interrogation is defined as any conduct where the police knew or should have known that they might illicit incriminating response from suspect.

Notes:
–Must be more than asking questions.
Rmbr to tell grader which statement is the violation.

Don’t need Miranda for spontaneous statemetns.

Question 24

Miranda Waiver

Answer 24

Must be knowing and voluntary
T. of circumstances standard.

Invoking Miranda Rights

• -Must be unambiguous
• -Can re-question after invoking right when 1) significant time has passed, 2) re-mirandized, and 3) questions limited to crime that was not subject of earlier questioning.

Question 25

Invoking Right to Counsel

Answer 25

Unambiguous request
If invoked, all question must stop until 1) accused speaks to an atty or 2) accused initiates further questioning.

14 day break in “custody” allows police to come back and ask D to waive miranda rights.

Question 26

What is the difference between the 5th amend. and 6th amend. right to counsel?

Answer 26

Court-created 5th applies to invoking his Miranda rights and requests atty.
–5th is NOT offense specific and thus applies to entire process of custodial police interrogation.

6th IS offense specific, meaning counsel would only need to be present if the D were being asked questions about specific cases for which D has retained counsel.
–NOTE: If D given appointed counsel (eg at preliminary hearing), the police can come back & ask D to waive 6th amend. right to counsel and talk to them about the crime for which he was charged.

Question 27

What are the two ways to attack pretrial IDing?

Answer 27

Denial of right to counsel and/or denial of due process.

Question 28

Pretrial IDing and Denial of the Right to Counsel (1 of 2 ways to attack pretrial IDing) + other stages where there’s not right to counsel

Answer 28

Post-charge and show-ups give rise to the right to counsel.
BUT no right when police show pics to victim or witness.

Other stages where there is no right to counsel:

1) Taking of blood
2) Taking of handwriting
3) Pre-charge lineups
4) Brief recess during testimony at tiral.
5) Parole & probation revocation proceedings
6) Taking of fingerprints

Question 29

Pretrial IDing and Denial of Due Process (2 of 2 ways to attack pretrial IDing)

Answer 29

Certain pretrial IDing techniques are so unnecessarily subjective and so substantially likely to produce a misidentification that they deny due process of law.

Question 30

What are the remedies for unconstitutional pre-trial IDing?

Answer 30

Exclude the in-court IDing unless the state can show that it had an adequate independent source for that in-court identification (independent of bad line-up)
–Most common independent source is that the victim or witness had adequate opportunity to observe the D at the time of the crime.

Question 31

bail

Answer 31

Pre-trial procedure

Bail issues can be immediately appealed
Preventative detention IS constitutional

Question 32

Grand Juries

Answer 32

Exclusion of evidence does not apply here

Proceedings of grand juries secret. D has no right to appeal and no right to send in witnesses.

Question 33

Prosecutorial Duty disclose… discuss

Answer 33

Pros. failure to disclose evidence whether willful or inadvertant violates Due Process and may be grounds for reversal of a conviction.

A failure to disclose exculpatory info will constitute grounds for reversing a conviction if 1) evidence is favorable to D AND 2) prejudice has resulted, meaning there is a REASONABLE PROBABILITY that the result would have been different had the info been disclosed.

Question 34

Trial:Right to Unbiased Judge

Answer 34

–Bias means having a financial interest in the outcome of the case or some actual malice against the D.

Question 35

Trial: Right to Jury Trial

Answer 35

Const. right to jury attaches anytime D is tried for an offense for which the maximum authorized sentence exceeds 6 months.

If max. authorized sentence is up to or including 6-months, there is no const. right to jury trial.

Number of jurors?
Minimum is 6. If minimum used, must be unanimous decision. No right to a unanimous 12 jury verdict. SCOTUS has approved 10-2 and 9-3 verdicts.

Cross sectional requirement
–Pool must reflect fair cross section of the community. BUT you have not right to fair cross sectional for impaneled jury.

Preemptory Challenges
Cannot exclude based on race or gender.

Question 36

Trial: Right to Counsel

Answer 36

D’s right to counsel applies to all critical stages of prosection including trial.

Ineffective counsel: must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different.

typically, such a claim can only be made out by specifying particular errors of trial counsel.

Question 37

Trial: Right to Self Rep.

Answer 37

Waiver of counsel must be knowing and intelligent, and he is competent to proceed pro se.

NOTE: D can be found mentally competent to stand trial, yet incompetent to represent himself, as determined by tiral judge’s discretion.

Question 38

Trial: Right to Confront witnesses

Answer 38

Absence of Face-to-face confrontation does not violate 6th amend. right when preventing confrontation serves an IMPORTANT PUBLIC PURPOSE and the RELIABILITY of the witness testimony is otherwise assured (eg child in sex off. case)

D who is disruptive may be removed from courtroom, thereby relinquishing his right of confrontation.

Question 39

Guilty pleas and plea bargaining

Answer 39

Generally, a court will not disturb guilty pleas after sentencing.

If D pleads guilty, judge must specifically address the D on record about the following:

1) Nature of the charge; and
2) Judge must tell D the max authorized penalty and any mandatory minimum penalty
3) Judge must tell him that he has a right to plead not guilty and to demand a trial
4) All of this must be on record.

Four good basis for withdrawing a guilty plea after sentence:

1) Plea was involuntary (some mistake in plea taking ceremony)
- -NOTE a plea is not involuntary merely b/c it was entered in response to the prosecution’s threat to charge the D with more serious crime.
2) Lack of jurisdiction
3) Ineffective assistance of counsel
4) Failure of the prosecutor to keep an agreed upon plea bargain.

Question 40

Death Penalty

Answer 40

Any death penalty statute that does not give D a chance to present mitigating facts and circumstances is unconstitutional.

there can be no automatic category for imposition of the death penalty.

State cannot limit the mitigating factors and all relevant mitigating factors must be admissible or the death penalty statute is unconstitutional.

ONLY A JURY–not judge–may determine the aggravating factors justifying imposition of the death penalty.

Question 41

Double Jepardy

Answer 41

Attaches when jury is sworn. Bench trial–1st witness is sworn.

Jepoardy does not attach (generally) when the proceedings are civil. Ex. tax fraud: civil and criminal trials

Two crimes do not constitute the same offense if each crime requires proof of additional element that the other does not.

Question 42

Dble Jeopardy: When is okay to retry?

Answer 42

1) Jury is unable to agree upon a verdict.
2) Mistrials for manifest necessity (medical emergencies usually)
3) A retrial after a successful appeal is not double jeopardy
- -NOTE: Upon retrial after a successful appeal, the D cannot be retried for a more serious offense than he was convicted of at the first trial. E.G.=Manslaughter/Murder
4) If plea bargain breached, plea can be withdrawn and D can be retried. EXCEPTION: Battery/murder if convicted of battery and then victim dies, can be tried for murder.

Question 43

In what types of crimes can the 5th amendment privilege be invoked?

Answer 43

In all types of cases where the response might tend to incriminate.

Question 44

When do you need to assert 5th amend. privilege?

Answer 44

First time the question is asked or you will have waived your 5th amend. privilege for all subsequent criminal prosecutions.

This privilege must be claimed in a civil proceeding to prevent the privilege from being waived for a later criminal prosecution.
– if person responds to questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence on 5th amend. grounds.

Question 45

What is the scope of the 5th amend. protection?

Answer 45

-Protects citizens from compelled testimony
-Does not protect from gov’t using physical evidence in ways to incriminate them.
Non-testimonial evidence prosecution can compel w/o violation: blood, handwriting, voice, and hair.

Question 46

How does claiming 5th amend. protection inhibit the prosecutor?

Answer 46

Pros. cannot make comment about D not testifying or D choosing to remain silent after being given the Miranda warnings. If pros. does, harmless error test applies.

• -Exception: Pros. can comment when D’s counsel makes the assertion that D was not allowed to explain his side of the story.
• -NOTE: If D remains silent before Miranda, the silence can be used against him in court.

Question 47

How can the 5th amend. privilege be eliminated?

Answer 47

Under grant of immunity
No possibility of incrimination (eg statute of limitations has run)
Waiver
–D takes witness stand