crim pro Flashcards
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Crim pro MBE tips
- Focus your studies on the Fourth Amendment and exceptions to the warrant requirement.
- Remember that the state almost always wins!
- Be sure you understand the probable cause and reasonable suspicion standards and when they apply.
- Remember that defendant rights are usually very limited.
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6AM right to counsel
The Sixth Amendment protects an accused’s right to “the assistance of counsel for his defense.” The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun. The right automatically attaches when the State indicts the defendant or brings formal charges. When a defendant is indigent, he is entitled to appointment of counsel
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Double jeopardy: hung jury
enerally, if a mistrial is declared because of a hung jury, then the defendant may be retried.
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Arrests for felony committed when officer wasn’t present
In situations in which a felony has been committed outside the presence of the one making the arrest, a police officer may arrest anyone whom he reasonably believes has committed a felony.
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Rights of a grand jury witness
A grand jury witness has no Fifth Amendment right to counsel in the grand jury room. The witness may, however, consult with an attorney outside the grand jury room. Additionally, a witness has no Sixth Amendment right to present witnesses or to introduce evidence at a grand jury proceeding.
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Ineffective assistance of counsel
(i) the representation of a defendant by the defendant’s attorney must fall below an objective standard of reasonableness, and
(ii) the attorney’s deficient performance prejudiced the defendant.
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Warrant less car search incident to arrest
In order to justify a warrantless search of an automobile incident to arrest, the Fourth Amendment requires that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.
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Separate counsel for codefendants
If an attorney representing co-defendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, the trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires automatic reversal of a subsequent conviction.
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Life sentence for minors
A sentence of life imprisonment without the possibility of parole constitutes “cruel and unusual punishment” under the Eighth Amendment when the sentence is imposed for a non-homicide crime on a defendant who was a minor at the time that the crime was committed.
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Open fields doctrine
Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the Fourth Amendment protection for a home. Under the open-fields doctrine, governmental intrusion on such property is not a search. The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy
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Search incident to arrest
The right to search incident to a lawful arrest includes the right to search pockets of clothing and to open containers found inside the pockets. The right also extends to containers “immediately associated” with the person (such as a shoulder bag or purse), so long as the containers are large enough to conceal a weapon or evidence of a crime.
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Brady in grand jury
The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury.
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Excluding a racial group from grand jury
a defendant who is indicted by a grand jury from which members of a racial group have been deliberately excluded has standing to raise Equal Protection claims of the excluded racial group, even though the defendant is not a member of the excluded racial group.
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Arrest warrant served at home
A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have probable cause to believe that the arrestee is present.
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Hung jury and double jeopardy
Where a mistrial is declared despite the defendant’s opposition, the defendant cannot be retried unless the mistrial is due to a manifest necessity. A hung jury constitutes a manifest necessity
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to whom and what does 5AM apply
Fifth Amendment privilege against self-incrimination applies only to individuals, not to corporations. The privilege does not extend to the custodian of corporate records, even if the records would incriminate the custodian personally. Additionally, the privilege applies only to testimonial evidence, not to voluntarily prepared business papers. Further, the Fifth Amendment privilege extends only to evidence that might incriminate the defendant in future criminal proceedings, not civil.
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interrogation
express questioning, as well as words or actions the police know or should know are likely to elicit an incriminating response.
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is grand jury limited to legally obtained evidence?
no, a grand jury is not restricted to hearing evidence that would be admissible at trial, and an indictment may be based on illegally obtained evidence.
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when checkpoint stops violate 4AM
Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not. Additionally, absent reasonable suspicion, police extension of a permissible traffic stop in order to conduct a dog sniff violates the Fourth Amendment’s protection against unreasonable seizures.
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admissibility of ev in violation of 6AM
Evidence obtained in violation of a defendant’s Sixth Amendment rights may not be introduced at trial. This is the case for both statements of a defendant and any evidence derived from such statements
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factors for curtilage
In determining whether the area is protected, the following four-factor test applies: (i) the proximity of the area to the home, (ii) whether the area is included within an enclosure surrounding the home, (iii) the nature of the uses to which the area is put, and (iv) the steps taken by the resident to protect the area from observation by passersby.
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Brady
While, under the Brady rule, a prosecutor has an affirmative duty to disclose any material evidence favorable to the defendant, nondisclosure of such evidence does not violate the defendant’s due process rights unless the failure to disclose causes prejudice against the defendant (i.e., that there is a reasonable probability that the defendant’s conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant).
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unmirandized statements and evidence
Any statement obtained as the result of a custodial interrogation may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights. However, the United States Supreme Court has ruled that derivative physical evidence (e.g., a gun) that has been obtained as a result of a voluntary, uncoerced confession that itself is inadmissible due to the failure by police to give Miranda warnings is admissible.
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burden of proving validity of Miranda waiver
The burden is on the prosecution to establish the validity of the defendant’s waiver by a preponderance of the evidence.
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critical stages: handwriting exemplar
taking of a handwriting exemplar, even after a defendant has been charged or indicted, is not a critical stage of the criminal proceedings that requires the presence of counsel.
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Effects of illegal arrest
An illegal arrest does not prevent the subsequent prosecution of the person who is illegally arrested. The evidence seized as a consequence of an illegal arrest may be suppressed under the fruit of the poisonous tree doctrine, and the charge may be thrown out if such evidence is necessary for conviction.
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voluntary consent to a search
Consent to a search is voluntary if it is made free from threat or compulsion.
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capital punishment for rape
Capital punishment for the crime of rape, even when the victim is a child, constitutes cruel and unusual punishment under the Eighth Amendment.
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right to enter home to serve an arrest warrant
A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have probable cause to believe that the arrestee is present. A police officer may not arrest a person in another person’s home without a search warrant, however, absent exigent circumstances or valid consent from the person whose home is being entered.
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right to a jury trial
There is a right to a jury trial for offenses that carry an authorized sentence of more than six months, regardless of the actual penalty imposed.
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concurrent vs consecutive sentences
A judge may make the determination of whether sentences for separate crimes may run consecutively.
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death penalty aggravating circumstances
In order to impose the death penalty, the aggravating circumstance involved cannot be unconstitutionally vague. A crime being “heinous or brutal” has been held unconstitutionally vague.
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challenging facially valid warrant
A defendant can successfully challenge a facially valid warrant only when the defendant can establish, by a preponderance of the evidence, that: (i) the affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and (ii) the false statements were necessary to the finding of probable cause.
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6Am right to counsel at arraignment
D has right to counsel at arraignment
