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Crim Pro Flashcards

1
Q

Crim Pro key Const AMDs

A

4th, 5th, 6th, 8th

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2
Q

4th AMD crim pro prohibition

A

Prohibition against unreasonable search and seizure

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3
Q

5th AMD crim pro privilege & prohibition

A

Privilege against compulsory self-incrimination

Prohibition against double jeopardy

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4
Q

6th AMD rights

A

Right to speedy trial
Right to trial by jury
Right to confront witnesses (Confrontation Clause)
Right to assistance of counsel

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5
Q

8th Amd prohibition

A

prohibition against cruel and unusual punishment (addresses death penalty and prisoner rights)

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6
Q

Exclusionary rule

A

A remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can have the product of that illegal search of that coerced statement EXCLUDED from any subsequent criminal prosecution.

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7
Q

Limitations on exclusion

A
  1. Does not apply to grand jury proceedings (grand jury witness may be compelled to testify based on illegally seized evidence)
  2. Exclusion is not an available remedy in civil proceedings or parole revocation proceedings
  3. Exclusion does not apply to the use of excluded evidence for impeachment purposes. (All illegally seized evidence may be admitted to impeach the credibility of the Ds, but not of other defense witnesses, trial testimony.)
  4. Exclusion is not available for violations of the knock and announce rule in the execution of search warrants.
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8
Q

Fruit of the poisonous tree doctrine

A

Not only is illegally seized evidence excluded, but also all evidence obtained or derived from police illegality is excluded. (Does not apply to Miranda violations unless the police act in bad faith in obtaining such information.)

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9
Q

3 ways that the government can break the chain between an original, unlawful police action and some supposedly derived piece of evidence

A

3 in’s

  1. Independent source (evidence came from a source independent of that original police illegality)
  2. Inevitable discovery (police would have inevitably discovered this evidence anyway)
  3. Intervening acts of free will (D provides the evidence under his free will, often a voluntary confession)
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10
Q

Exclusionary rule - convictions

A
  1. A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial.
  2. On appeal, a court will apply the harmless error test, under which a conviction will be upheld if the conviction would have resulted despite the improper evidence.
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11
Q

What does the 4th AMD protect?

A

The 4th AMD protects citizens from unreasonable searches and seizures.

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12
Q

What must an arrest be based on?

A

An arrest must be based on probable cause.

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13
Q

Are arrest warrants generally required before arresting in a public place?

A

No. Arrest warrants are not generally required before arresting in a public place.

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14
Q

Does a non-emergency arrest of an individual in his home require an arrest warrant?

A

Yes. A non-emergency arrest of an individual in his home requires an arrest warrant.

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15
Q

For a station house detention, in order to compel you to come to the police station either for fingerprinting or interrogation or arrest you, what do the police need?

A

Police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation.

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16
Q

Does the police have authority to briefly detain a person, even if they lack probable cause?

A

Yes. The police have the authority to make a Terry stop, or to briefly detain a person, even if they lack probable cause.

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17
Q

What is required of the police in order to make a Terry stop?

A

To make a Terry stop, police must have a REASONABLE SUSPICION supported by ARTICULABLE FACTS of criminal activity.

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18
Q

What determines if police have reasonable suspicion to make a Terry stop?

A

Whether the police have reasonable suspicion depends on the totality of circumstances.

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19
Q

rule on automobile stops

A

Police may stop a car if they have at least reasonable suspicion that the law has been violated.

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20
Q

What is the exception to the rule on auto stops?

A

The exception are checkpoint roadblocks. For a checkpoint roadblock to be valid, the roadblock must i) stop cars on the basis of some neutral, articulable standard and ii) serve purposes closely related to the problem pertaining to cars and their mobility (DUI tests and border checks)

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21
Q

5 steps for Search and Seizure essay

A
  1. Is there govt conduct?
  2. Standing? (is there a REOP to provide standing?)
  3. Did the police have a valid search warrant? (2 Ps - probable cause and particularity)
  4. If police do not have a valid search warrant, does the good faith defense save the defective search warrant?
  5. If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
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22
Q

Search and Seizure essay: Step 1

Is there government conduct?

A

Publicly paid police (on or off duty)
Any private individual acting at the direction of the public police
(The actions of privately paid police, like store security guards, subdivision police or campus police, do NOT constitute governmental conduct UNLESS they are deputized with the power to arrest.)

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23
Q

Search and Seizure essay: Step 2
Standing through REOP
Automatic categories of standing

A
  1. Own the premises searched
  2. Live on the premises searched
  3. Overnight guest
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24
Q

Search and Seizure essay: Step 2
Standing through REOP
“Sometimes” category of standing

A

If you own the property seized, you have standing ONLY IF you have a REOP in the item or area searched.

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25
Q

Search and Seizure essay: Step 2
Standing through REOP
“No standing” categories

A

You have no REOP for anything that you hold out to the public everyday. (i.e. sound of your voice, style of your handwriting, paint on your car, bank records, monitoring the location of your car but not the planting of a GPS device on your car, open fields, anything seen by flying over in public air space, odors from your luggage or car, garbage set out on the curb for collection)

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26
Q

Search and Seizure essay: Step 3
Did police have a valid search warrant?
2 core requirements for a facially valid search warrant (2 Ps)

A
  1. probable cause

2. particularity

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27
Q

Search and Seizure essay: Step 3
Did police have a valid search warrant?
What is the standard for probable cause?

A

Standard for probable cause: A fair probability that contraband or evidence of a crime will be found in the area searched.

28
Q

Search and Seizure essay: Step 3
Did police have a valid search warrant?
What is the standard for particularity?

A

Standard for particularity: The warrant must state with particularity i) the place to be searched and ii) the item to be seized

29
Q

Search and Seizure essay: Step 3
Did police have a valid search warrant?
If an officer’s affidavit or probable cause is based on informant information, how is its sufficiency determined?

A

If an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of circumstances. The informant’s credibility and basis of knowledge are all relevant factors in making this determination. A valid warrant can be based IN PART on an anonymous informant’s tip.

30
Q

Search and Seizure essay: Step 3
Did police have a valid search warrant?
When is “no knock” entry permitted in the execution of a search warrant?

A

“No knock” entry is permitted in executing a search warrant if exigent circumstances exist.
An officer need not K&A if K&A would be dangerous, futile, or inhibit the investigation, particularly if there is concern for destruction of evidence.

31
Q

Search and Seizure essay: Step 4
If police do not have a valid search warrant, does the good faith defense save the defective search warrant?
Good faith defense rule

A

An officer’s good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.

32
Q

Search and Seizure essay: Step 4
If police do not have a valid search warrant, does the good faith defense save the defective search warrant?
4 exceptions to the good faith defense

A
  1. The affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it.
  2. The affidavit underlying the warrant is so lacking in particularity that no reasonable police officer would have relied on it.
  3. The officer or prosecutor lied to or misled the magistrate when seeking the warrant.
  4. If the magistrate is biased and has wholly abandoned his neutrality.
33
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
Exceptions to the warrant requirement

A
  1. Search incident to arrest
  2. Automobile exception
  3. Plain view
  4. Consent
  5. Stop and frisk
  6. Evanescent evidence, hot pursuit, special needs searches
34
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
Search incident to arrest

A

For a valid search incident to arrest:

  1. The arrest must be lawful
  2. The arrest and search must be contemporaneous in time and place
  3. The person and the area within the person’s wingspan can be searched
  4. The police can search the INTERIOR of the auto incident to arrest ONLY IF:
    a. The arrestee is unsecured and still may gain access to the vehicle OR
    b. The police reasonably believe that the evidence of the offense for which the person was arrested may be found in the vehicle
35
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
automobile exception

A

In order for police to search anything or anybody and fall under the auto exception, they must have probable cause.
If they have probable cause, they can search the entire car including the entire interior compartment, the trunk, and any closed containers which could REASONABLY contain the item they had probable cause to look for regardless of whether that item was owned by the passenger or the driver.
Probable cause can arise after the car is stopped but must arise before anything or anybody is searched.

36
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
plain view

A

To constitute plain view, police must be legitimately present at the location where he views the seized item, he must see the item in plain view, and it must be immediately apparent that the item is contraband or a fruit of a crime.

37
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
consent

A

Valid consent must be voluntary consent.
Where more than 1 person has equal right to use a piece of property, either can consent to its search but only 1 is needed to deny consent.
If a co-occupant who does not consent to the search is removed from the premises, police may search upon consent of the other occupant.

38
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
Terry stop and frisk

A

Terry stop - brief detention for the purpose of investigating suspicious conduct based on reasonable suspicion (less than the probable cause standard)
Terry frisk - a pat down of the outer clothing and body to check for weapons

39
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
Evanescent evidence

A

Evanescent evidence is evidence that might disappear quickly if police took time to get a warrant (DUI blood draw, fingernail scrapes)

40
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
Hot pursuit

A

Hot pursuit of a fleeing felon within 15 minutes behind the felon.

41
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
inventory searches

A

Inventory searches: Before incarceration of an arrestee, police may search

  1. the arrestee’s personal belongings and/o
  2. the arrestee’s entire vehicle including closed containers in the vehicle
42
Q

Search and Seizure essay: Step 5
If the warrant is not valid and not saved by officer’s good faith defense, does the warrant requirement provide an exception?
public school searches

A

Public school children engaged in extracurricular activities can be randomly drug tested.
Warrantless searches of school children’s effects such as purses and/or backpacks is permissible to investigate violations of school rules.
A school search will be reasonable ONLY IF i) it offers a moderate chance of finding evidence of wrongdoing AND ii) the measures adopted to carry out the search are reasonably related to the objectives of the search AND iii) the search is not excessively intrusive.

43
Q

What is the trigger for required Miranda warnings?

A

Custodial interrogation is the trigger for Miranda warnings, which need not be verbatim so long as the substance of the warnings is conveyed.

44
Q

Custodial interrogation: custody

A

Legal standard for custody: If at the time of the interrogation, a RPP would not feel free to leave (an objective standard).
Court will determine whether the situation presents the same inherently coercive pressures as a station house questioning. (can include your own home or hospital bed)
Probation interviews and routine traffic stops are not custodial.

45
Q

Custodial interrogation: interrogation

A

Interrogation: Any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect.
Miranda warnings are not required prior to the admissibility of a spontaneous statement.

46
Q

What is required for Miranda waiver?

A

Miranda waiver must be knowing and voluntary, and courts will use a totality of circumstances test in making this determination.

47
Q

What is required to invoke the Miranda right to remain silent?

A

Invoking the right to remain silent must be unambiguous.
Police may reinitiate questioning after D has invoked the right to silence if they wait a significant amount of time, is re-Mirandized, and the questions are limited to a crime that was not the subject of the earlier questioning.

48
Q

What is required to invoke the Miranda right to counsel?

A

The right to counsel can only be invoked by an unambiguous request.
If the accused invokes his right to counsel, all questions must cease until 1) the accused is given an attorney or 2) the accused initiates further questioning.
If there is a break in custody, police can come back and ask D to waive his Miranda rights after 14 days.
Line ups and show ups give rise to right to counsel but NOT showing photographs.

49
Q

Bail

A

Bail issues are immediately appealable.

Preventative detention is constitutional.

50
Q

Grand jury

A

Exclusion does not apply to grand jury conduct. A grand jury witness may be compelled to testify based on illegally seized evidence.
Grand jury proceedings are secret. D has no right to appear and nor right to send in witnesses to a grand jury.

51
Q

Prosecutorial duty to disclose exculpatory information

A
  1. Prosecutor’s failure to disclose evidence, whether willful or inadvertent, violates the Due Process Clause and may be grounds for reversal of conviction.
  2. Failure to disclose exculpatory information will constitute grounds for reversing a conviction if: a) the evidence is favorable to D and b) there is a reasonable probability that the result would have been different had the information been disclosed.
52
Q

Right to an unbiased judge

A

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

53
Q

When does the right to trial by jury attach?

A

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

54
Q

What is the minimum # of jurors permissible in a jury trial? What is the requirement for unanimity?

A

The minimum # of jurors permissible in a jury trial is 6.
The verdict must be unanimous using only 6 jurors.
There is no constitutional right to a unanimous 12-juror verdict.

55
Q

What is the cross sectional and compositional requirement of a jury?

A

You have a right to have the jury pool reflect a fair cross section of the community, but you have no right to have the impaneled jury reflect a fair cross section of the community.

56
Q

What is the requirement for peremptory challenges?

A

A peremptory challenge is a challenge to exclude a prospective juror for any reason whatsoever.
It is unconstitutional for the prosecutor or the defense to exercise peremptory challenges to exclude from the jury prospective jurors on account of their race or gender.

57
Q

When does the right to counsel apply?

A

A criminal D’s right to counsel applies to all critical stages of a prosecution, including trial.

58
Q

Ineffective assistance of counsel

A

There 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 claims can only be made out by specifying particular errors of trial counsel.

59
Q

Right to self-representation

A

D has the right to defend himself so long as 1) his waiver of counsel is knowing and intelligent, and 2) he is competent to proceed pro se.
(D can be mentally competent to stand trial yet incompetent to represent himself, as determined by the trial judge’s discretion.)

60
Q

Right to confront witnesses

A

The absence of a face-to-face confrontation between D and the accuser does not violate 6th AMD when preventing such confrontation serves an important public purpose and the reliability of the witness testimony is otherwise assured.
A D who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation.

61
Q

guilty pleas/plea bargaining

A
  1. A court will generally not disturb guilty pleas after sentencing.
  2. If D pleads guilty, the judge must specifically address D on the record re:
    a. the nature of the charge, AND
    b. judge must tell D the max authorized penalty and the mandatory min penalty AND
    c. judge must tell him that he has a right to plead not guilty and to demand a trial AND
    d. all this must be done on the record
62
Q

4 good bases for withdrawing a guilty plea after sentence

A
  1. Plea was involuntary. (A plea is not involuntary because it was entered in response to the prosecution’s threat to charge D with a more serious crime.)
  2. Lack of jdx
  3. Ineffective assistance of counsel
  4. Failure of prosecutor to keep an agreed upon plea agreement
63
Q

5th AMD privilege against compelled testimony (self-incrimination)

A

The 5th AMD privilege against self-incrimination can be asserted by anyone in any type of case. Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate him, is entitled to a 5th AMD privilege.

64
Q

When must a 5th AMD privilege against compelled testimony be asserted?

A
  1. The first time the question is asked (otherwise, privilege is waived for all subsequent criminal prosecutions)
  2. In civil proceedings to prevent the privilege from being waived for a later criminal prosecution.
65
Q

What is the scope of 5th AMD privilege against compelled testimony?

A

5th AMD protects citizens from compelled testimony.

5th AMD does not protect citizens from having the government use physical evidence in ways to incriminate them.

66
Q

totality of circumstances situations

A
  1. judging reliability of informants
  2. reasonable suspicion for Terry stops
  3. Miranda waivers

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