Crim Pro

Question 1

School Search Standards

Answer 1

• Kids at extracurricular activities can be randomly drug tested
• Warrantless searches of public school children’s effects are valid if they have a moderate chance of finding evidence of wrongdoing, the measures are reasonably related to the objective of the search, and not excessively intrusive.

Question 2

Rights to Counsel

Answer 2

• 5th Amendment (Miranada)
  
  • not offense specific
• 6th Amendment (after charges are brought)
  
  • Is offense specific
  • right to counsel at all critical stages of trial

Question 3

Right to a Jury Trial

Answer 3

If criminal offense carries penalty exceeding 6 months

At least 6 jurors (need to be unanimous at 6, but not unanimous if more)

Question 4

Ineffective Assistence of Counsel

Answer 4

But for defficient performance of counsel the result would have been different

Defendant must show particular errors made by counsel

Question 5

Guilty Pleas and Plea Bargaining

Answer 5

• Generally a court will not disturb a guilty plea after sentencing, unless:
  
  • plea was involuntary (plea taking ceremony error); lack of jurisdiction; ineffective assistence of counsel; failure of prosecutor to keep an agreed upon plea bargain
• Plea Taking Ceremony:
  
  • Judge must explain the nature of the charge, the penalties involved, inform of right to demand a trial, and all this must be on the record

Question 6

Double Jeopardy Exceptions

Answer 6

1. Hung Jury
2. Mistrail for manifest necessity (medical reason)
3. Retrial after successful appeal (unless, overturned for insufficient evidence; but can’t be charged with a more serious offense)
4. Breach of plea bargain by defendant

Question 7

Search and Seizure: Global Issues

Answer 7

1. Whether search or seizure is governed by 4th Am.
2. Whether search or seizure with a warrant satisfies 4th Am.
3. Whether search or seizure without a warrant satisfies 4th Am.
4. Extent to which evidence obtained in violation of 4th Am. is admissible in court

Question 8

Is Search or Seizure Governed by 4th Amendment?

Answer 8

1. Executed by Government Agent
2. Area or Item Protected by 4th Am.
3. Two Theories
   
   1. Trespass Theory
   2. Reasonable Expectation of Privacy
4. Standing to Challenge Government Conduct

Question 9

Areas/Items Protected by 4th Amendment

Answer 9

4th Am. protects from unreasonable searches and seizures of:

1. Persons
2. Houses (+Curtilage)
3. Papers (Correspondence)
4. Effects (personal belongings)

Question 10

Trespass Theory

Answer 10

Physical intrusion on a constitutional area to obtain information

Question 11

Privacy Based Theory

Answer 11

Violation of a Reasonable Expectation of Privacy

Individual must show:

1. Actual or subjective expecation of privacy AND
2. Privacy expectation is “one that society recognizes as reasonable”

Question 12

Technology Standard

Answer 12

Search is unreasonable if:

1. it uses a device not in public use
2. to learn details that otherwise could not have been known without physical intrusion

Question 13

Standing to Challange Search or Seizure

Answer 13

General Prinicipal: Assert violation of personal privacy rights (not those of third party)

Question 14

Does a search conducted with a warrant satisfy the 4th Amendment?

Answer 14

1. Neutral and Detached Magistrate?
2. Supported by Probable Cause and Particularity?
3. If not, did officers rely on warrant in good faith?
4. Proper execution?

Question 15

Probable Cause

Answer 15

Probable cause requires proof of a “fair probability” that contraband or evidence of a crime will be found in the area searched

• Can rely on heasay
• Can rely on anonymous tips if corrobarted by enough information to make a “common sense practical” determinatino that probable cause exists based on a totality of the circumstances

Question 16

Particularity

Answer 16

1. The place to be searched AND
2. The items to be siezed

Question 17

Good Faith Reliance on a Defective Warrant

Answer 17

Generally good faith overcomes a deficient warrant, but there are exceptions:

1. Warrant is so egregiously lacking in probable cause that no office would have relied on it
2. Warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid
3. Warrant relies on knowing or reckless falsehoods that are necessary to the probable cause finding
4. Issued by biased magistrated

Question 18

Proper Execution of a Warrant

Answer 18

1. Compliance with terms and limitations of warrant
   
   • only items that could contain items being searched for
2. Knock and Announce Rule
   
   • Must knock and announce unless futile, dangerous, or would inhibit investigation

Question 19

Does a warrantless search satisfy the 4th Amendment? (Exceptions to the Warrant Requirement)

Answer 19

1. Exigent Circumstances
2. Search Incident to Arrest
3. Consent
4. Automobile
5. Plain View
6. Inventory
7. Special Needs
8. Terry - Stop and Frisk

Question 20

Exigent Circumstances

Answer 20

Exception to the Warrant Requirement

1. Evanescent Evidence - would dissipate or disappear in the time required to get a warrant
2. Hot Pursuit of a Fleeing Felon
   
   • Can enter a home when in hot pursuit
   • Items in plain view can be seized
3. Emergency Aid
   
   • Police may enter a home if there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to prevent injury

Question 21

Search Incident to Arrest

Answer 21

Exception to Warrant Requirement

• Must be contemporaneous with arrest
• Limited to wingspan of arrestee and containers in immediate control
• Can search interior cabin of automobile including closed containers, but not trunk
  
  • If arrestee secured - can only search of evidence relating to arrest

Question 22

Automobile Exception

Answer 22

Exception to Warrant Requirement

• Justified by lesser expection of privacy in vehicle and mobility of vehicle
• Officers need probable cause to believe that contraband or evidence of a crime will be found
• Can search entire vehicle and open any container that can reasonably contain itmes for which there was probable cause to search

Question 23

Plain View

Answer 23

Exception to the Warrant Requirement

1. Lawful access to the place (e.g., hot pursuit of felon)
2. Lawful access to the item (e.g., cannot search backpack while in hot pursuit of felon)
3. Criminality of item must be immediately apparent

Question 24

Inventory Searches

Answer 24

Exception to Warrant Requirement

• of Arrestees when booked into jail
• of vehicles when impounded

Consitutional if:

1. Governed by reasonable regulations of scope
2. Search complies with regulations
3. Search is done in good faith - i.e., solely done as routine matter

Question 25

Terry Stop - Stop and Frisk

Answer 25

Exception to Warrant Requirement

• Terry Stop - brief stop to investigate suspicious conduct
  
  • Seized when a reasonable person would not feel free to leave of decline to answer questions (consider whether officer brandished weapon; tone and demeanor)
• Terry Frisk - Patdown of the body and outer clothing for weapons when justified by an officer’s belief that suspect is armed and dangerous
  
  • Can seize weapon or contraband that is immediately apparent without manipulation
• Supported by reasonable suspicion - specific and articulable facts that inform an officer’s belief that criminal activity is present (and for frisk, that person is armed and dangerous)

Question 26

Can evidence obtained in violation of 4th amendment be used in court?

Answer 26

Exclusionary Rule: Evidence that is obtained in violation of 4th amendment is inadmissible in court, bu there are exceptions:

• Only excluded from prosecutor’s case in chief; can be used to impeach defendant’s testimony
• Does not apply to violations of knock and announce
• Only applies if police error is deliberate, reckless, or grossly negligent; does not apply to officer’s reasonable mistakes
• Fruit of the poisonous tree

Question 27

Fruit of the Poisonous Tree

Answer 27

Generally derivative evidence from improperly obtained direct evidence is inadmissible as “fruit of the poisonous tree” unless:

1. There is an independent source
2. Inevitable discovery - would necessarily been discovered through lawful means
3. Attenuation - passage of time, intervening events, and non-flagrant nature of violation “purge the taint”

Question 28

Law of Arrest

Answer 28

• Arrest occurs when police take someone into custody against his will for prosecution or interrogation
• Supported by probable cause
• No warrant needed to arrest in public place
• Warrant needed to arrest in home

Question 29

Constitutional Challanges to Confessions

Answer 29

1. 14th Am. DPC
2. 6th Am. Right to Counsel
3. 5th Am. Miranda Doctrine

Question 30

Excluding Confessions under DPC

Answer 30

Confession excluded if involuntary, meaning product of police coercion that overbears the suspects will

Question 31

6th Amendment Right to Counsel

Answer 31

• Attaches when formally charged (not upon arrest)
• Applies at all “critical stages” of prosecution
• Offense Specific
• Confessions Violate 6th Am. if deliberately illicted and the defendant did not knowingly, intelligently, and voluntarily waive his right to counsel

Question 32

5th Amendment Miranda

Answer 32

• Implied in self-incrimination clause of 5th Am.
• Miranda warnings
  
  • Necessary for custodial interrogation
    
    • Custody
      
      • reasonable person would not feel free to leave or end interrogation
      • Inherently coercive environment
    • Interrogation
      
      • Police conduct that police knew or should have known would elicit an incriminating statement

Question 33

Miranda Waiver

Answer 33

• Must be knowing and intelligent
  
  • ​understand nature of rights and consequences of waiver
• Must be voluntary
• May be implied (Waiver need not be express)
• Prosecution must prove waiver by a preponderance of evidence

Question 34

Invoking Miranda Rights

Answer 34

• Right to Remain Silent
  
  • Must be unambiguously invoked
  • Officer’s must scrupulously honor
  • Must wait a significant amount of time and obtain a valid waiver to reinitiate questioning
• Right to Counsel
  
  • Must be sufficiently clear
  • All questioning must cease, unless intiated by suspect
  • Not offense specific
  • Request for counsel expires 14 days after release