Crim Pro

Question 1

4th Amendment: General Principles

Answer 1

1. Standing: D must have standing to assert his claim
2. Exclusionary Rule:
   - –Prevents introduction of unlawfully obtained evidence ONLY at subsequent criminal trial
   - –Doesn’t apply to: Federal habeas corpus review, grand jury proceedings, preliminary/bail/sentencing hearings, proceedings to revoke parole, evidence used to impeach Defendant, or civil proceedings
3. Govt Conduct: 4th amendment only protects against gov’t conduct. Govt conduct includes: publicly paid police, private person directed by the police, or deputized private police
4. Reasonable Expectation of Privacy as to place searched or item seized

Question 2

4th Amendment Protection Against Unreasonable Search and Seizure:

Arrest-definition and types

Answer 2

Arrest = unreasonable seizure of persons

Seizure: Occurs when an officer uses force or authority to, INTENTIONALLY terminate or restrain the subject’s freedom of movement (and D submits)
–Test for seizure: would a reasonable person feel free to disregard the officer/feel free to leave?

Types of Arrests/Seizures:

• -Stop & Frisk
• -Traffic Stops
• -Arrest with Warrant
• -Warrantless Arrests

Question 3

Type of Seizure:

Terry Stop/Stop & Frisk

Answer 3

An officer can stop an individual when the officer has a reasonable suspicion, based on articulable facts, to believe the suspect is or about to be engaged in criminal behavior.

• -during the Terry stop, officer can pat-down (frisk) a detainee for weapons but can’t initiate search for evidence (note: can seize obvious contraband)
• -if probable cause develops during Terry Stop (either bc of something suspect says or the police finds), officer can then make an arrest

Question 4

Type of Seizure: Automobile Stop

Answer 4

Generally need reasonable suspicion to stop an automobile

–DONT need reasonable suspicion as long as they’re stopping everyone (like border or checkpoints)

Question 5

Type of Seizure: Arrests

Answer 5

Generally: Can arrest with or without a warrant. Officer needs to have probable cause to believe that the arrested individual has committed a crime.

– Pretext Arrest/Stop: As long as the police have probable cause to believe an individual committed a crime, police can arrest/stop suspect if they have a hunch the suspect committed another crime.

–Warrantless Arrests: Arrest warrant is not needed in a public place OR for a crime that’s committed in the arresting party’s presence. DO need probable cause

Arrest with Warrant: must be issued by a neutral magistrate upon finding of probable cause and describe with PARTICULARITY the Defendant and the crime. Deficient warrant doesn’t invalidate the arrest as long as there was probable cause. (facts supporting P/C: officer’s personal observations; info from reliable, known informant/verified unknown informant; evidence seized during stop based on reasonable suspicion, discovered in plain view, or during consensual search).

——> Knock and Announce Rule: For arrest with a warrant when you arrest at a dwelling, Police must generally announce purpose when executing a warrant (unless exigent circumstances or consent). VIOLATION does not trigger exclusionary rule.

–NOTE: invalid arrest not a defense to the crime BUT may affect the associated seizure of evidence

Question 6

4th Am: Search and Seizure

What is a Search + Rsbl Expectation of Privacy + General Rule

Answer 6

General Rule under 4th: govt needs a warrant to conduct a search if there is a reasonable expectation of privacy.

Search = occurs when govt conduct violates a reasonable expectation of privacy

–Govt: must be govt conduct (not a private person searching on own)

–Standing: D must show a legitimate expectation of privacy with regard to search

You have REASONABLE EXPECTATION OF PRIVACY IN
–Homes/Private Room/Office: home and curtilage, motel rooms, and business premises. Use of drug-sniffing dog is a search if it physically intrudes onto constitutionally protected property.
–Luggage: REP for invasive searches but not for canine sniff.
Automobiles: Need reasonable suspicion of law violation to stop, and PC for pre-textual stops when traffic law violated in order to investigate whether another law has been violated.
–Open Areas: outside curtilage has no reasonable expectation of privacy.
–Odor from car: no reasonable expectation of privacy.
Technological Device: Attaching a tracking device to person without consent is a search; physically intruding on person’s property to install tech device is a search; Use of sense-enhancing devices not used by general public is a search.

Question 7

4th Amend: search and seizure

Warrant Requirement for Searches

Answer 7

Warrant must:

1. be issued by neutral magistrate
2. be based on probable cause to believe that the items sought are evidence, instrumentalities, or fruits of the crime. AND
3. describe the place and the prop to be searched with particularity

If warrant doesn’t meet the requirements, then warrant is invalid and the items seized pursuant to the invalid warrant will be precluded from the prosecution’s case in chief.

Question 8

4th Amend: Search and Seizure

Exceptions to the Warrant Requirement for Searches

P Acess

Answer 8

~Search Incident to Lawful Arrest: If arrest was lawful, a search warrant is unnecessary. Scope limited to the things that D can reach.

• -Wingspan: in and around (not cell phone though)
• -Home: includes closets/other spaces immediately adjoining place of arrest in home from which an attack could be launched.
• -Vehicle: justified if– 1. arrestee is within reaching distance of passenger compartment (weapons/evidence) during search, OR 2. If rsbl that evidence of the offense might be in car.
• -can include DNA sample

~Exigent Circumstances: Officers can secure premises (i.e. prevent ppl from moving things) while they obtain a warrant but sometimes this isn’t enough. If officers in “hot pursuit” or there’s immediate danger, they can conduct a search without getting a warrant first. (need P/C)

– Doesn’t apply when officers created the exigent circumstances themselves

~Stop & Frisk

• -Stop: need rsbl suspicion based on articulable facts that detainee involved in criminal activity. Stop must be limited or temporary.
• -Frisk: An officer without P/C can pat down person’s outer clothing if he has requisite rsbl suspicion (above) + he thinks frisk is necessary for safety

–if Officer plainly feels weapon or contraband, can seize.

~Automobile Exception: can search any part of a car (compartments, containers, trunk, etc) if PC that THAT area contains contraband or evidence of crime. (i.e. can’t just search other areas too)

~Plain-View Doctrine: if police are legally on the premises, they can seize any item in plain view/smell even if item not in warrant. If in public, there’s no Reasonable Expectation of Privacy anyway.

~Consent: Police can search without warrant if D consents to the search voluntarily (police can’t threaten or lie, etc).

–3rd party can consent to D’s prop search only if D not there and objecting AND if 3rd p has apparent authority

Question 9

Wiretapping

Answer 9

• need a warrant to authorize warrant
• only for a limited period of time
• needs to be PC that a specific crime has been or is about to committed
• Identify the persons and describe particular conversations to be tapped, and when the tapping will be terminated
• Can reveal intercepted conversation to court

Question 10

4th Amend Search and Seizure

Exclusionary Rule

Answer 10

Rule: Illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal interrogation is inadmissible at the criminal trial of the person whose rights were violated.

Application Time: Exclusionary Rule applies at trial and not to pre-trial proceedings like grand jury proceedings.

Scope: Fruit of the Poisonous tree–applies not only to the evidence directly obtained as a result of the govt illegality, but also to secondary derivative evidence resulting from primary taint.

~Exceptions:

• -inevitable discovery (thru lawful means)
• -Independent source (was independent source for the evidence unrelated to the tainted evidence
• -Attenuation of the Taint-passage of time and/or intervening events may purge primary taint
• -Good Faith: applies when police relies in objective good faith on either facially valid warrant that was later found to be invalid or if the existing law is later held unconstitutional (BUT DOESNT APPLY if no rsbl officer would rely on underlying affidavit, warrant defective on face, warrant obtained by fraud, magistrate acted improperly, or warrant improperly executed)
• -Isolated Police Negotiation-not enough to trigger the exclusionary rule; must be sufficiently deliberate that exclusion can meaningfully deter it.
• -Knock and Announce-violation doesn’t trigger exclusionary rule
• -In Court ID: not fruit of an unlawful detention.

Note: Ct can refuse to order new trial if the unlawfully admitted illegal evidence didn’t contribute to result.

Question 11

5th Amendment Protection Against Compulsory Self-Incrimination

Answer 11

Rule: No person shall be compelled in criminal case to testify against himself; applies to states through the 14th Amendment

Application: Only re: testimony, not any phys evidence like blood or urine. Also only applies to testimony that would be incriminating.

Proceedings: can be invoked in any proceeding as long as there’s a reason to believe that the testimony might lead to future criminal prosecution.

Waiving Privilege: D waives the privilege by taking the stand and answering the prosecution’s questions. Witness waives it by actually disclosing self-incriminating info in response to a specific question.

Question 12

5th Amendment Protection Against Compulsory Self-Incrimination

Police Interrogation Context: application and compliance

Answer 12

Generally: any incriminating statement obtained as a result of custodial interrogation CANNOT be used against suspect at subsequent trial UNLESS police inform subject of Miranda Rights

1. What is Custodial Interrogation?
   - -Custodial: substantial seizure where D reasonably believes that he isn’t free to leave or is otherwise deprived of his freedom in a significant way.

–Interrogation: Includes direct questioning as well as words/actions that are likely to elicit incriminating response. Voluntary statements ARENT protected. Confessions are involuntary only if coerced by the police.

2. Compliance
   - -Content/Timing of Miranda Warning: warning must be given before interrogation begins (or given again if interrogation is halted for a long time). Doesn’t need to be verbatim but must inform D of his right to remain silent, any statement can be used in court, and he has a right to atty (or one will be appointed for him)

–Right to Counsel: To invoke, D must make a specific, unambiguous statement asserting his desire to have counsel present. Once invoked, all interrogation must stop until counsel is present, unless: D voluntarily initiates communication with police (including spontaneous statements), OR 14 day break in custody and fresh Miranda warning are given first.

–Right to Silence: To invoke, D must make a specific, unambiguous statement asserting his desire to remain silent (mere silence isn’t enough). If invoked, Interrogator must scrupulously honor right if invoked, but if D indicates a desire to speak , then subsequent interrogation is lawful as long as D is not coerced and Miranda warnings are given again.

• -Exceptions (i.e. don’t need to abide by Miranda if):
• ——>public safety @ risk
• ——>Routine booking Questions
• ——>Undercover police

–Waiver: D must knowingly, voluntarily, and intelligently waive Miranda rights (SILENCE IS INSUFFICIENT)

Question 13

5th Amendment Protection Against Compulsory Self-Incrimination

Fruits of a Tainted Confession & Consequences & Fifth Amendment in the Trial Context

Answer 13

Fruits of a Tainted Confession:

1. Giving Miranda warning removes taint of prior Miranda violation
2. Second confession is inadmissible if circumstances make it clear that police approach was an intentional attempt to circumvent Miranda

Consequences:

• -Involuntarily Obtained Statements: never admissible against D. Evidence obtained as result of involuntary statement is fruit of poisonous tree and not admissible.
• -Miranda Violation Statements: Statement obtained in violation of Miranda is inadmissible in prosecution’s case in chief but can be used for impeaching D. Evidence obtained as a result of voluntary statement was was obtained in violation of Miranda IS admissible.

5th Amendment in Trial Context: D can refuse to testify at a criminal trial or other proceedings that may incriminate him in future criminal proceedings.

Question 14

6th Amendment Rights, Generally

Answer 14

Right to a public trial
Right to confront witnesses against him
Right to cross-x witnesses
Right to be present at his own trial, and
Assistance of Counsel for his defense (once formal proceedings begun)

Question 15

5th Amendment Right to Counsel vs. 6th Amendment Right to Counsel

Answer 15

5th: right to counsel for custodial interrogations
- -D must voluntarily and clearly invoke (not automatic)
- -Can invoke after Miranda warning

6th: right to counsel for defense.
- -Automatically attaches once there’s been indictment/other formal charge. Exists unless D knowingly and intelligently waives the right.
- -Offense specific–can be questioned without atty for unrelated charges.
- -applies whether in custody or not
- -applies at all critical stages

Question 16

6th Amendment Right to Counsel

Applicability & Scope

Answer 16

Types of proceedings: all felony prosecutions and any misdemeanors where jail time/suspended jail time is imposed.

Applicability: automatically applies to all critical stages of prosecution after formal proceedings have begun, and right automatically attaches after indictment/formal charge and ends at sentencing stage. (critical stages: hearings, post-indictment line-ups/interrogations, all parts of trial process. Non-critical: pre-indictment investigative lineups, photo arrays, discretionary appeals, etc)

Waiver: D has right to voluntarily and intelligently refuse counsel and proceed pro se unless request untimely/D unable or unwilling to follow rules of procedure.

Scope: Offense Specific

• -Blockburger test: 2 different crimes in one criminal transaction deemed to be same offense unless each offense requires proof of an element that the other doesn’t
• -Miranda comparison: UNLIKE Miranda, presence of counsel only applies to interrogations about offense charged (not other offenses). LIKE Miranda, D may make knowing/voluntary waiver of his right

Question 17

6th Amendment Right to Counsel – Remedies for Denial of Counsel

Answer 17

1. Effect on conviction: D’s conviction is automatically reversed even without specific showing of unfairness
2. Effect on guilty plea: D has right to withdraw it and it can’t be used against him as an admission
3. Nontrial proceeding: harmless error analysis (did it change outcome?)
4. Defendant’s statements to informants: post-indictment statement to informant where situation is likely to induce D to incriminate himself without counsel is inadmissible (but police may place an informant in D’s cell to listen without questioning D)
5. Exclusionary Rule:
   - -Fruit of the Poisonous Tree: applies to statements and physical evidence obtained as a result of violation. Such evidence is inadmissible
   - -Impeachment: incriminating evidence obtained in violation of 6th amendment can be used for impeachment.

Question 18

6th Amendment Right to Counsel – Ineffective Assistance of Counsel

Answer 18

1. Reasonable competence of counsel is presumed. 2 part test to show ineffective counsel:
   - -Counsel’s rep fell below objective std of reasonableness; AND
   - -Counsel’s deficient performance prejudiced D, resulting in unfair/unreliable outcome (mere inexperience, strategy, or failure to produce mitigating evidence is insufficient.
2. Conflict of interest– Rep of Ds with conflicting interests may amount to ineffective assistance of counsel; must show actual conflict AND an adverse effect on counsel’s performance.
   - -Actual Conflict: 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 D
   - -Adverse Impact: occurs when a plausible alternative strategy/tactic might have been pursued but was inherently in conflict with, or not undertaken, due to the atty’s other loyalties or interests.

Question 19

Pre-Trial Procedures:

Eye witness ID procedures

Answer 19

1. Types:
   - -Corporeal: “in person” (lineups)
   - -Non-corporeal (not in person like photo array)
2. Sixth Am right to counsel at post indictment lineups. Inadmissible if violated but witness can ID the D in ct if ID has independent reliability
3. Admissibility of pre- and post-indictment IDs – 2 prong test:
   - -a. D must prove ID was impermissibly suggestive AND
   - -b. Ct must determine if it was nonetheless reliable (opportunity to view, degree of attn, accuracy of witness’ description, level of certainty, length of time)
   - -Remedy: suppression hearing (away from jury) to determine admissibility. Finding of impermissibly suggestive procedures will result in suppression
4. Non-Corporeal IDs
   - -no right to counsel during pre or post indictment photo spread (not a critical stage)
   - -2prong test for admissibility (see above) applies

Question 20

Pre-Trial Procedures:

Preliminary Proceedings

Answer 20

1. Must be a prelim hearing in front of neutral judge to determine whether PROBABLE CAUSE to detain
   - -must be held within 48 hours of arrest to determine P/C
   - -Fourth Amendment guarantees D right to be released if no P/C
   - -No remedy if detention is unlawful (other than exclusion of evidence)
2. Initial Appearance: judge advises D of the charges and his rights and appoints counsel if D is indigent; judge may also decide conditions of bail and accept a plea.

Question 21

Pre-Trial Procedures:

Right to Bail; Competency; Grand Juries; and State’s Duty to Disclose

Answer 21

1. Right to Bail: no constitutional right to bail; but denial of bail or excessive bail must comply with the Due Process Clause
2. Competency: D 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
3. Grand Juries: D has no right to present/confront witnesses or introduce evidence and no dismissal due to procedural defect unless substantial impact on decision to indict
4. State’s Duty to Disclosure
   - -a. State has an affirmative duty to disclose any material evidence favorable to D and relevant to the prosecution’s case in chief that would negate guilt or diminish culpability/punishment.

• -b. Failure to abide by this affirmative duty is grounds for reversal if D shows:
• —-> the evidence is favorable to the defendant AND
• —-> the failure to disclose caused prejudice against the defendant

Question 22

Trial Procedures:

Jury Trial: fed vs state; length; waiver

Answer 22

Federal: 6th Amendment right to jury trial

State: Under 14th amendment, D has a right to jury trial in criminal cases for serious offenses

Length: For both fed and state, right to jury trial attaches when serious offense (authorized punishment is more than 6 months)

Waiver: D can waive right to jury trial and opt for trial by judge by obtaining ct’s approval, and freely/intelligently entering a voluntary waiver.

Question 23

Trial Procedures:

Jury Requirements/procedures

Answer 23

~FRCP requires 12 unless waived in writing and approved by ct but a verdict by 11 is okay if 12th juror is excused for good cause after the deliberation began.

~Cross Section: jury must be selected from a representative cross-section of the community (actual jury chosen doesn’t need to be)

~Standing: D can challenge selection process without showing of actual bias

~Prima Facie Case: for absence of representative cross-section:

• -Distinctive group excluded,
• -Group not fairly represented in jury pool, AND
• -Underrepresentation resulted from systematic exclusion of group

~Neutral Principles: In response to claim of intentional racial discrimination in jury selection, state can use neutral/nonracial principles and must prove absence of discriminatory intent

~Peremptory Challenge

• -Discriminatory use: 14th Am prohibits challenges based solely on gender or race.
• -Loss of Challenge–doesn’t violate right to impartial jury
• -Harmless Error: state can choose between harmless error review or automatic reversal when judge in good faith erroneously denies D’s peremptory challenge

~Impartiality

• -Accused entitled to trial by impartial jury and claims of juror bias/misconduct subject to harmless error rule
• -Race: D may question a potential jury member’s views on race only when racial prejudice involved in case or when race is inextricably bound up in the case.
• -Capital Punishment: jurors opposed to death penalty can be removed for cause if opposition substantially impairs duties while serving

~Sentencing Enhancement: enhancement of sentence by judge absent jury determination of existence of additional facts violates D’s right to a jury trial.

Question 24

Trial Procedures:

Guilty Pleas

Answer 24

1. Knowing and Voluntary
   - -Must be intelligent and voluntary, and made in presence of judge
   - -Judge must advise D and determine that plea not due to force or promises other than in plea agreement
2. Right to Counsel: D has a right to counsel when entering a plea
3. Plea Bargain:
   - -D has no constitutional right to a plea bargain
   - -Plea made in response to prosecutor’s threat to bring more serious charges doesn’t violate Due Process
   - -Prosecutor not required to disclose impeachment info or info related to affirmative defense
   - -Enforcement:
   - —->Plea bargain is enforceable against prosecutor and D, but not the judge (judge CAN reject the plea)
   - —->If prosecutor violates bargain, judge can decide whether to order specific performance of the bargain or whether D can withdraw the plea.
   - —–>If D violates the bargain, the prosecutor can have sentence vacated and reinstate original charges
4. Effect on D’s rights–D can attack plea for ineffective assistance of counsel, lack of jx, or violation of due process

Question 25

Trial Procedures:

Right to a Speedy Trial

Answer 25

1. Due process clause: protects pre-accusation delay and SoL is the primary safeguard of this.
2. Sixth Am: protects post-accusation delay and time period starts at time of arrest/formal charge.
3. Balancing Test: length and reason for delay, whether D asserted right, and prejudice to D
4. Remedy: Dismissal of charges with prejudice

Question 26

Trial Procedures:

Right to a Fair Trial

Answer 26

D has a right to a fair trial. This entails:

1. Impartial Judge: no actual, apparent bias permitted
2. Prosecutor: cannot misstate law/fact, talk to D without counsel present, express opinions about D’s guilt or innocence, make improper remarks about D, or comment on D’s failure to testify.

Question 27

Trial Procedures:

Right to Confrontation

Answer 27

1. Trial: accused has right to encounter and cross-x adverse witnesses and be present at any stage of trial
2. Face-to-Face: not absolute right and may be prevented for public policy reasons (i.e. child)
3. Confrontation Clause and Hearsay Rule:
   - -Out of Court Statements by witnesses that are testimonial are barred under the confrontation clause, unless witnesses are unavailable and D had prior opportunity to cross-x those witnesses
   - -Out of court testimonial statements are not barred by the Confrontation Clause when they are used for a purpose other than establishing the truth of the matter asserted.
   - -Testimonial Statements: the declarant would reasonably expect it to be used in a prosecution
   - -Non-Testimonial Statement: statements made for the primary purpose of assisting the police in the investigation of an ongoing emergency are not testimonial
4. Admission of Confession: D’s own statements are always admissible against him even if he doesn’t testify at trial. However, non-testifying co-D’s statements are inadmissible against the Co-D at joint trial (violation of 6th Am)

Question 28

Trial Procedures:

Presumptions/Burden of Proof

Answer 28

1. Permissive presumption: regarding an element of an offense is not a due-process violation unless it’s irrational
2. Mandatory Presumption: per se violation
3. Reasonable Doubt: prosecution must prove all elements beyond a reasonable doubt; state may place burden of proving an affirmative defense (eg insanity, self-defense, entrapment, or duress) on D

Question 29

Trial Procedures:

Sentencing

Answer 29

1. Applicable Rights include right to counsel, confrontation, and cross-x
2. Any fact (other than prior conviction) that can be used to increase statutorily prescribed maximum must be charged in indictment, submitted to jury, and established beyond a reasonable doubt.

Question 30

Trial Procedures:

No Cruel and Unusual Punishment (8th Am)

Answer 30

1. Length of Prison Sentences: SCOTUS has given govt free rein to authorize virtually any length of sentence for virtually any crime
   - -Exception: juveniles can’t be sentenced to life without parole for non-homicide crimes.
   - -Prisoner can try to show that punishment grossly disproportionate to crime.
2. Capitol Punishment:
   - -Rule: In cases that involve an actual individual victim, SCOTUS has held that capital punishment can only be imposed if victim DIES
   - -Rule: Death Penalty can’t be imposed on: Ds under 18 AT THE TIME they committed crime; mentally retarded Ds; and D’s who are insane at the time of the execution (even if sane at the time crime was committed)
   - -Reqmts: Can only be imposed under statute that provides clear/objective standards, specific/detailed guidance, and opportunity for rational review of process
3. Other Types of Sentences or Punishments
   - -8th Am prohibits imposition or cruel or unusual/degrading punishments as well as excessive. Must have been convicted of a crime for 8th am to be triggered.

Question 31

Post Trial Considerations:

Double Jeopardy & Convictions

Answer 31

A. Double Jeopardy (5th Am): protects against second prosecution for the same offense after acquittal or conviction and against multiple punishments for the same offense

1. Same Offense: Blockburger Test generally bars successive prosecutions for greater/lesser included offenses unless jeopardy attaches to lesser included offense before event necessary for greater offense
2. Attachment: when jury is impaneled or sworn in OR when first witness is sworn in for bench trial
3. Different Jxs: D can be charged/convicted in fed and state court.
4. Civil Axns: not precluded by criminal punishment for same conduct.
5. Guilty Plea: Not automatically waived.
6. Collateral Estoppel: applies when earlier decision must have necessarily determined issue on which collateral estoppel is sought by D.

B. Convictions: D can attack conviction after unsuccessful appeal under writ of habeas corpus (civil action, so standard is preponderance of evidence)