Crim Pro Flashcards
Harmless Error Rule
Applies on appeal to violation of DP for missID, Miranda, 6th, voluntariness
Conviction is upheld if conviction would have resulted despite admission of improper evidence
FOTPT
Excludes direct evidence, AND derived from, a Const illegality (4th, DP, 6th) except Miranda violation unless PO act in bad faith.
DOES NOT apply to fruit from Miranda violation BUT statements can be excluded (mirandized or unmirandized) if it’s a DIRECT product of unConst arrest and no sufficient attenuation (passage of time) to purge the taint
Exceptions to get evidence IN:
- INdependent source apart from original illegality
- INevitable discovery by means UNCONNECTED to illegality
- INtervening acts of free will by D
4th Amd
Right of the people to be secured in their persons, papers, houses, and effects against UNREASONABLE searches and seizures shall not be violated, and no W shall issue unless based upon PC, supported by Oath or Affirmation, and Particularity describing the place to be searched and persons or things to be seized
6th Am: Right to counsel
Attaches once formally charged AND throughout critical stages of trial
If asserted, PO cannot Q D w/o atty or w/o VIK waiver UNLESS D initiates comm directly related to investigation
- PO may seek waiver w/o counsel present ONLY IF D did NOT asserts right AND atty is only Ct appointed
- Violation: statement can be used as PIS to impeach D on cross
- Applies to: felony AND misdemeanors when sentence of imprisonment is imposed (or imposed and then suspended)
- Ct may deny right to counsel in misdemeanor but cannot sentence to jail
5th Amd (NOT offense specific) vs 6th Amd (offense specific)
Double Jeopardy
5thAmd provides that one may NOT be twice put in jeopardy for the same offense
- Jury trial: attaches when jury is sworn
- Bench trial: attaches when 1st W on the issue of guilt is sworn
- Does NOT attach to Civ (unless crim tax fraud case + civ case to collect)
- Exceptions: Even if DJ has attached, D may be retried if (no double jeopardy):
1) Hung-jury: juror cannot agree
2) Mistrial for necessity (e.g. mental emergency of D)
3) retrial after appeal BUT cannot be re-tried for more serious offenses - Same Offense: Two crimes are NOT same offense for DJ if EACH crime requires proof of an additional element that the other crimes does not require
(e.g. Crime1 has A+B+C and Crime2 has A+B+D, homicide + hit-and-run: BOTH homicide and HnR require an element different from the other: one death, and driving away)
Same: Tried for Serious crime then lesser included offense (e.g. tried for robbery, then for larceny: both same elements and ONLY robbery has one extra element) - Same sovereigns (e.g. State and its municipalities)
Withdrawal of guilty plea
- Involuntary plea (not involuntary if resulting from DA threatening w/more serious charges)
- Lack of Jx
- IAC
- Failure of DA to keep agreed upon plea gargain
If Warrant is invalid and cannot be saved by GF or no W at all: ESCAPIST
E: evanescent evidence, hot pursuit w/in 15mins, emergency aid: threat to health or safety of public, dirty socks smell from house (odor gives trained/experienced PO reason to believe meth lab in operatio and volatile)
S: Search incident to lawful arrest w/PC: incident and contemporaneous in time&place to arrest
Scope of the search:
-General: Person and areas w/in person’s wingspan
-Auto interior (unsecured): ONLY if D is unsecured and may gain access to auto
-Auto interior (secured): ONLY if D is secured and PO have reasonable belief that evidence of the offense for which D was arrested will be found (e.g. DUI stop + car reeks alcohol vs only speeding)
-Containers (irrespective of who owns it): PO may open containers which may reasonably contain evidence PO has PC to look for (e.g. box for drugs, luggage for laptop, NOT wallet for paintings)
C: must be VIK (understand rights and consequence of waiver)
A: auto w/PC + mobility: PC must arise BEFORE searching anything but can arise AFTER stop
mobility factors: location, readily mobile (no tires, licensed vehicle, connected to utilities, etc)
-Containers (irrespective of who owns it): PO may open containers which may reasonably contain evidence PO has PC to look for (e.g. box for drugs, luggage for laptop, NOT wallet for paintings)
P: Plain view w/PC:
- Legitimately on premise
- Lawful access to item
- Incriminating appearence is readily apparent
I (no PC): Inventory: reg must be std and reasonable in scope, NOT for crim search, designed to protect PO from false claims to catalog evidence (search all D’s personal prop, AND auto)
S (no PC): Special needs:
- Border search, probationers/parolees, student drug testing: participate extracurricular activities, REASONABLE student search of prop if violation of school rules but MUST not be excessively intrusive, RR
- DUI checkpoint test: reg is neutral AND closely related (limited in scope) to particular problem pertaining to auto and mobility (not for crim purposes), AND supervisory decision-making, brief stop, proper signage+lighting, opportunity to avoid
T stop: purpose is to protect PO and others
Brief detention if PO has reasonable suspicion based on specific articulable facts that indicate crim activity AND other offenses reasonably suspected
Balance TOC Gov interest vs level of intrusion
T frisk: purpose is to protect PO and others.
Pat down if PO has reasonable suspcision based on specific articulable facts that indicate D is presently armed + dangerous. NO exploratory squeeze.
- Traffic stop + dog sniff is NOT search as long as stop is not extended beyond the time needed to issue a ticket or normal inquiries
- K9 alert can form basis for PC
- NO K9 directly outside the home w/o PC
Grand Juries
Exclusionary rule does not apply thus W can testify based on Unconst seized evidence.
D has no right to be present or have W testify
6th Amendment Confrontation Clause
Crim (hearsay + unavailable declarant): “In all criminal prosecution, the accused shall enjoy the right to be confronted with the W against him” (CC)
- 6th Amd Confrontation Clause makes hearsay inadmissible if:
1) Declarant is unavailable: PRISM: privilege asserted, Refusal to testify, Incapacity, Subpoena (failure to comply), Memory (lack of)
2) Statement is testimonal in nature: statements to establishing or prove facts intended for litigation purposes
Exceptions:
Ongoing emergency: statements aid PD to resolve ongoing emergency that poses threat to public
Reports used to build profile w/o anyone specific at time of the crime (E.g. DNA)
3) D had no opportunity to x-exam or develop testimony
- Exception: co-D same trial + confession admitted ONLY if
a) portion referring to other-D is eliminated
b) Confessing D takes the stand and subject to x-exam
c) confession of nontestifying co-D used to rebut D’s claim that confession was coerced - No violation if no on-on-one confrontation to serve an important public purpose AND testimony of the W is reliable (e.g. insulate child from testifying against sex abuser)
Privilege against compelled testimony (5th Amd)
Whenever a Q is asked under oath where response might tend to incriminate
MUST be asserted when Q first starts. If first responds to Q then asserts, then privilege is bared
Unconstitutional for DA to comment on failure to testify at trial
Harmless error rule if DA comments silence after Miranda warnings
Exception (5th Amd privilege is eliminated):
- Immunity is granted
- no possibility of incrimination (e.g. SOL run out)
- Waiver (e.g. D takes the stand)
Miranda warnings requirements
Must Mirandize before Q ONLY if D KNOWS he is interrogated by PO
1) Custodial AND Interrogation
- Custodial/formal arrest (objective std): at the time of Q, reasonable person would not feel free to leave (freedom of movement) AND if not free the circumstances are inherently coercive as Q at PD (TOC)
- Interrogation: express Q, or action likely to elicit a response (PO knows or should have known). More than rigorous non-crim related Qs
2) Waiver: VIK based on TOC
- Invalid if PO intentionally misrepresent that D is not suspect and D is unaware charges have been filed
- Miranda warning + VIK waiver post-arraignment ALSO waives 6th Amd right to counsel
Exceptions to Miranda requirement:
- Spontaneous statement by D
- Public safety: reasonable PO under the circumstances belives public safety is in danger
- Mere investigation: non-custodial Q
- Undercover A: if D is unaware speaking to PO’s A before 6th Amd attaches
- Booking Q: reasonably related to PO admin
- Violation: statement can be used as PIS to impeach D on cross
Prosecution vs Defense BOP
Prosecution: MUST prove EVERY element BARD
Defense: only need to prove ONE element by reasonable doubt
For ALL other defenses States MAY require by POE
Pre-trial Procedures: bail
Bail issues are immediately appealable
5th Amd
No person shall be compelled in any crim case to be a W against himself, nor be deprived of life, liberty, or property, w/o DP of law, nor shall private prop be taken for public use w/o just compensation
Privilege against compulsory self-incrimination
Prohibition against double jeopardy
5th Am: Right to remain silent
MUST be unambiguously asserted (objective std), remaining silent NOT enough
If asserted, PO may re-interrogate as long as PO scrupulously honor D’s request (e.g. wait significant amount of time, re-mirandize, Q about unrelated crime, at different location, different PO)
