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MBE Bar Studies > Crim Pro > Flashcards

Crim Pro Flashcards

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1
Q

Exclusionary Rule

A

Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial

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2
Q

Fruit of the Poisonous Tree

A

Evidence derived or obtained from illegal govt. conduct is excludable against D. Arises when illegal police action leads to evidence.

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3
Q

Exceptions to Exclusionary Rule

A

Illegally obtained evidence is admissible if govt. can “break the chain” between the illegal govt. conduct and the seized evidence; three ways to break the chain:

Independent Source
Inevitable Discovery
Intervening Acts of Free Will

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4
Q

Independent Source Doctrine

A

Govt. had an independent source for obtaining the evidence, i.e., independent from the original illegality

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5
Q

Inevitable Discovery

A

Govt. would have discovered

illegally derived evidence even without illegal conduct

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6
Q

Intervening Acts of Free Will

A

After initial illegality,

D led police to the evidence by his own free will

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7
Q

Remedy for Exclusionary Rule

A

Harmless error review
• For admission of illegally-seized evidence to be upheld on appeal, the govt. must show that it was harmless beyond a
reasonable doubt

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8
Q

Exclusionary Rule Does Not Apply To:

A

1) Grand jury proceedings, civil proceedings, parole hearings, or administrative cases
2) Violations of the “knock and announce rule” in executing search warrants
3) Evidence seized as a result of Miranda violations

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9
Q

Excluded Evidence and Impeachment:

A

• Confessions resulting from Miranda violations or illegally

obtained evidence may be used to impeach D’s testimony at trial (but only D’s testimony, not all testimony)

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10
Q

Gov’t good-faith defenses to Exclusionary Rule:

A

Illegally obtained evidence will not be excluded if the govt.
demonstrates that it relied in good faith on either:
a) A reasonably relied upon but defective search warrant
b) A judicial opinion or statute that was later changed or
declared invalid

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11
Q

Arrest

A

An arrest occurs when police take an individual into custody

for purposes of criminal prosecution or interrogation

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12
Q

Requirements for Arrest

A

Probable cause is always required for any valid arrest
• Probable cause = trustworthy facts or knowledge sufficient
for a reasonable person to believe that the suspect has
committed or is planning to commit a crime

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13
Q

Arrest Warrants

A

Warrants are rarely required for arrests
• Unless an arrest occurs in the arrestee’s own home, the govt. does not need a warrant to make an arrest
• A warrant is not required for an emergency arrest occurring in the arrestee’s home

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14
Q

Detention

A

A governmental seizure of a person that is lesser than an arrest

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15
Q

Terry Stop & Frisk Detention

A

Requires reasonable suspicion

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16
Q

Automobile Stop Detention

A

Requires reasonable suspicion

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17
Q

Stationhouse Detention

A

Probable cause required to compel a person to enter a

govt. location for fingerprinting, questioning, etc.

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18
Q

Detention to Obtain Search Warrant

A

» Requires probable cause
» If police have probable cause to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant
• Purpose must be to prevent destruction of evidence

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19
Q

Detention of Occupants of a Premises

A

If police have a valid warrant to search premises, they may detain occupants for duration of the proper search

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20
Q

Validity of Search & Seizure

A

Govt. searches and seizures of evidence must be reasonable
under the 4th Amend, which requires a valid search warrant,
unless one of six exceptions applies

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21
Q

Gov’t Action

A

4th Amend. only applies to govt. conduct (direct or

authorized); does not protect against private conduct

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22
Q

Standing

A

D must have a reasonable expectation of privacy in the

thing or place to be searched

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23
Q

Exceptions to Search Warrant

A

1) Search incident to arrest
2) Plain view search
3) Automobile search
4) Valid consent to search
5) Exigent circumstances
6) Stop & frisk

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24
Q

Reasonable Expectation of Privacy

A

4th Amend. only applies if a person has a reasonable expectation of privacy (REOP) regarding the thing or place searched and/or the items seized
• Standing to challenge a govt. search requires a REOP
• REOP is determined by the totality of the circumstances

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25
Q

Inherently Public Things

A

No REOP for inherently public things

• E.g., handwriting, voice, location, odors, public records, things viewable from public space, garbage placed outside

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26
Q

Automatic Standing

A

REOP always exists if D either:
a) Owns, has a right to possess, or lives in the premises to be
searched, or
b) Is an overnight guest of the premises to be searched

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27
Q

Requirements for Valid Warrant

A

Based on Probable Cause
Precise on its Face
Issued by a Neutral and Detached Magistrate

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28
Q

Based on Probable Cause Warrant

A

» Usually a police affidavit demonstrating probable cause
that the search or seizure will produce evidence
» Affidavits:
• Must contain facts showing probable cause
• May include information from anonymous sources (i.e., informants)
• If based on false information, warrant is invalid

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29
Q

Precise on its Face Warrant

A

Warrant must describe, with reasonable precision, the place to be searched and/or items to be seized

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30
Q

Issued by Neutral & Detached Magistrate

A

If this requirement is violated, evidence seized cannot be admitted under the good faith reliance exception

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31
Q

Timing of Search Warrant

A

Search warrant must be executed without unreasonable delay after it is issued

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32
Q

Knock and Announce Warrant

A

Police must knock and announce their purpose, then wait a reasonable time for
admittance before entering on their own accord
• Exception — knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation

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33
Q

Scope of Search

A

Police can seize any evidence of criminal activity they discover, even if not included in the warrant
• Basis is plain view exception to search warrants (see card 49)
• Police can detain people found on the searched premises
» But police cannot search detained persons unless they are specifically named in the warrant or a valid warrantless search exception exists

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34
Q

Search Incident to Lawful Arrest

A

Police may search a lawfully arrested person and his immediate surrounding area without a warrant
Requirements:
1) Arrest must be lawful
2) Search must be contemporaneous with the arrest
3) Search must be limited to area within suspect’s immediate reach or movement (i.e., where he could obtain weapons or destroy evidence)

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35
Q

Protective Sweeps

A

Police may sweep an area for officer safety or with reasonable belief that accomplices may be present

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36
Q

Inventory Search

A

Police may make an inventory search of arrestee’s belongings (i.e., they can take items to the police station to be searched)

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37
Q

Auto Arrest Searches

A

After arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search:
a) Arrestee is unsecured and may access the vehicle interior, or
b) They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle
• Police cannot search trunk without probable cause or consent

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38
Q

Plain View

A

Police may search from any place where they are legitimately

present when viewing (i.e., when conducting the search)

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39
Q

Plain View Seizure

A

Police may seize evidence in plain view without a warrant if:
1) Police are legitimately on the premises from which they viewed the evidence to be seized
2) Criminal activity or contraband is immediately apparent
3) Police have probable cause to believe that plainly viewed
evidence is contraband or relates to a crime

40
Q

Technology

A

Police cannot use technology not generally available to the
public to view evidence that may constitute a plain view
search (e.g., infrared scanners that can view through walls)
» Note — use of drones for plain view searches is
unsettled law and thus unlikely to appear on the MBE

41
Q

Consent to Search

A

1) Voluntarily and intelligently made
» Police cannot lie or deceive to obtain consent
» Police have no obligation to inform suspects that they have a right to refuse consent
2) Person giving consent has authority to consent
» Authority to consent must be reasonably apparent

42
Q

Scope of Consent

A

Can be limited by consenting party

• Violation of scope renders the entire search non-consenting

43
Q

Third Party Consent

A

Allowed if there is authority to consent
• Where multiple people have property rights (e.g., ownership,
authorized use, occupancy), any single one can consent to the
search of any area where they have authority to consent
• A resident’s right to consent trumps a non-resident
» E.g., if both a tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent
• Scope of consent is dictated by the person present with
highest authority to consent
• Refusal trumps consent — no consent if two persons with
equal right to possession disagree on consent

44
Q

Auto Search Exception

A

If probable cause exists, police may search an entire vehicle
(including the trunk) and containers or compartments inside that may contain the evidence they are searching for

45
Q

Requirements for Auto Search Exception

A

Police must have probable cause to search the vehicle
• Probable cause must arise before the search begins
» I.e., probable cause must arise based on something
between the vehicle stop and the search

46
Q

Scope of Auto Search Exception

A

Police may search passengers and their belongings
• Packages & containers in vehicle — police may open
packages, containers, or luggage that might contain evidence relating to the reason they searched the vehicle
» Police may also tow the vehicle and search such containers at a later time

47
Q

Automobile Stop

A

Reasonable suspicion required
• To stop or pull over a vehicle, police must have reasonable
suspicion that a law has been violated

48
Q

Police Checkpoints

A

Must relate to a vehicle-specific purpose
• A police checkpoint/roadblock that stops cars without individualized suspicion (e.g., DUI checkpoints), must:
a) Stop cars using a neutral, articulable standard (e.g., every
fourth car)
b) Serve purposes related to automobiles and their mobility

49
Q

Scope of Stop & Frisk

A

Detention must be no longer than necessary to verify the suspicion
• Frisk — if police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons
» Plain feel — if police have reasonable belief during the
frisk that what they feel is a weapon or contraband, they may seize the suspected item
• Officers cannot manipulate the item to develop reasonable belief — it must be plain touch only
• Evidence validly seized is admissible

50
Q

Exigent Circumstances

A

Hot Pursuit
Evanescent Evidence
Emergency

51
Q

Hot Pursuit

A

While actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection

52
Q

Evanescent Evidence

A

Police can search or seize evidence that would be at
risk of disappearing if police were required to secure a
warrant
• E.g., drugs that may be discarded, DNA
evidence that may not last

53
Q

Emergency Evidence

A 
Police can search or seize evidence if justified by
emergency circumstances (e.g., a bomb threat or act of terrorism)
54
Q

Administrative Searches

A

Govt. agencies may conduct routine searches or inspections
A warrant is required for inspections of private residences or commercial buildings
» Requires less particularity than standard warrants
» A general and neutral enforcement plan for the
searches will suffice to validate the warrant

55
Q

Public School Searches

A

To conduct a search, school officials must have reasonable
grounds the search is necessary (less burdensome than probable cause). A school search is reasonable if:
1) Search offers moderate chance of finding evidence of
wrongdoing;
2) Procedure for searching is reasonably related to objectives of the search; and
3) Search is not excessively intrusive
• Drug tests — random urinalysis permitted for public school
students participating in extracurricular activities

56
Q

Border Searches

A

At borders, officials may conduct routine searches of
persons and their effects (including vehicles) without a
warrant, probable cause, or reasonable suspicion
» Border = any place where one can arrive in the U.S. from a foreign country (e.g., there is a “border” at Denver International Airport)

57
Q

Border Detentions

A

Reasonable suspicion required

• Officials may detain a traveler at the border if they have reasonable suspicion she is smuggling contraband

58
Q

International Mail

A

Officials can open and inspect international mail if they have reasonable suspicion it contains contraband

59
Q

Immigration Searches

A

Officials may raid a business to determine citizenship status
of its employees

60
Q

Electronic Surveillance

A

Electronic surveillance (e.g., wiretapping, eavesdropping) that violates a reasonable expectation of privacy constitutes a search under the 4th Amend. and requires a warrant

61
Q

Warrant Requirements for Electronic Surveillance

A

1) Probable cause that a specific crime is being or has been committed
2) Warrant must name suspects subject to surveillance
3) Warrant must describe with particularity the subject of
conversations that can be surveilled
4) Surveillance must be limited to short periods of time
5) Surveillance must terminate when desired information is
obtained and must be turned over to the court

62
Q

5th Amend Privilege Against Self-Incrimination

A

Any person in any proceeding (civil or criminal) may refuse to
answer a question if her response might incriminate herself

63
Q

5th Amend Self Incrimination Triggers

A

Privilege only available for compelled testimonial or
communicative evidence
• Testimonial = verbal or otherwise communicative evidence
» Lineups and physical evidence — not testimonial
• Compelled = elicited or induced
» Evidence produced from D’s free will is not compelled
(e.g., D’s diary is not compelled)
» Lie detector tests, custodial interrogations, etc. are compelled and 5th Amend. privilege will apply

64
Q

5th Amend Does Not Apply if:

A

1) Grant of immunity — govt. can grant immunity from prosecution for self-incriminating testimony
2) Incrimination is not possible — e.g., the statute of limitations
has run
3) Extinguished by waiver — D waives the privilege

65
Q

Miranda Rights

A

Those in custody must be informed of Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible
Miranda only applies when accused is in custody and interrogated

66
Q

Custody

A

Objective view the accused is not free to leave

67
Q

Interrogation

A

Statements by police likely to elicit incriminating responses
» Unsolicited statements are not protected
» Note — routine questioning (e.g., during booking or a
probation interview) is not considered interrogation
» Public safety exception — police may interrogate
suspects without giving Miranda warnings if necessary
for public safety (e.g., D

68
Q

Miranda Warnings

A

1) A right to remain silent
2) Anything said can be used against him
3) He has a right to the presence of an attorney, and
4) One will be appointed if he cannot afford one
• Substantial compliance in reading warnings is sufficient
• Failure to give warnings implicates 5th Amend., not 6th
Amend.

69
Q

Invoking Right to Silence

A

Police must cease all questions
• Only the accused can re-initiate dialogue
• Police may later question accused about unrelated crimes

70
Q

Invoking Right to Counsel

A

Police must cease all questions on any topic until counsel is provided and present. If accused initiates communication, interrogation is allowed

71
Q

Waiver of Miranda

A

Waiver must be:
1) Knowing
2) Voluntary — must be a clear verbal waiver
3) Intelligently made
• Burden is on prosecution to prove waiver was valid

72
Q

Double Jeopardy

A

A D cannot be retried for the same offense once jeopardy has attached; arises when a D charged with one crime is charged with another crime based on the same offense

73
Q

Same Offense Double Jeopardy

A

Offenses are different if conviction for one offense requires proof of an element not included in the other offense
• Different offense — e.g., first offense requires proof of A & B;
second offense requires proof of A, C, & D
• Same offense — e.g., first offense requires proof of A, B, & C; second offense requires proof of A & B

74
Q

Exceptions for Double Jeopardy

A

» New evidence for greater offense becomes available

» D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery

75
Q

When Jeopardy Attaches

A

Jury trial — once jury is impanelled and sworn in
• Bench trial — once first witness is sworn in
• Civil trial — jeopardy is not applicable

76
Q

When Retrial is Allowed Double Jeopardy

A

Once jeopardy has attached, retrial is still allowed if:
1) Hung jury
2) Mistrial due to manifest necessity
» Occurs when D’s original trial is aborted for some
reason (e.g., D is too ill to continue)
3) Retrial after a successful appeal by D
» D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict
4) D breaches a plea bargain agreement
5) Separate sovereigns
» D can be tried for the same crime in different states
» D can be tried for the same crime in federal and state
court

77
Q

6th Amend Right to Counsel

A

Once 6th Amend. right to counsel attaches, police may not elicit incriminating statements outside the presence of D’s counsel
• Application — right attaches once charges have been filed and applies to all subsequent stages of judicial proceeding. The right is offense-specific
» Police can question D about any other crime without
violating D’s 6th Amend. rights

78
Q

Pretrial Lineup or Showup

A

A suspect has a right to counsel at any post-charge, in-person
lineup or show-up
• Does not apply to non-live identification procedures (e.g., photographic lineups, fingerprinting)
• Lineup — witness is shown several possible suspects
• Show-up — witness is asked to identify a single suspect

79
Q

Remedy for Lineup Violation

A

D may move to suppress any subsequent in-trial identifications made by the witness

80
Q

Pretrial Hearing

A

Required to determine if there
is probable cause to detain the suspect
• Required if:
1) Arrestee is incarcerated, and
2) There has not been a grand jury or other judicial determination of probable cause
• Must occur within 48 hours of detention

81
Q

Bail

A

Must be set no higher than necessary to ensure D will
appear at trial
• Detention without bail is constitutional, but any decision to refuse bail is immediately appealable

82
Q

Grand Jury Proceedings

A

Grand juries are required in federal court under the 5th Amend. and are used to determine whether there is sufficient probable cause to bring charges against a suspect
• Prosecutors present their cases to the grand jury, which
votes to issue an indictment if they find probable cause

83
Q

Grand Jury Process

A

Secret
• Suspect has no right to confront witnesses or attend
proceedings
• Witnesses are not entitled to Miranda warnings
• Witnesses may not challenge a subpoena
» But they may refuse to testify under the 5th Amend.
• Exclusionary rule does not apply

84
Q

Right to Speedy Trial

A

The 6th Amend. guarantees D the right to a speedy trial
• Protects D from unreasonable delay between the time charges are filed and the beginning of trial
• Right attaches once D has been arrested or charged

85
Q

Violations of Speedy Trial

A

Determined by the totality of the circumstances
• Courts look at the following factors:
1) Length of delay
2) Reason for delay — did D contribute to the delay?
3) Whether D asserted his right to a speedy trial
4) Whether the delay has prejudiced D
• Remedy for violation = dismissal of case with prejudice

86
Q

Right to Jury Trial

A

6th Amend. provides right to a jury trial for all “serious offenses”
• Serious offense — one that authorizes a sentence of
imprisonment for more than 6 months

87
Q

Jury Size

A

Jury size and unanimity — jury must contain at least 6 jurors
» There is no constitutional right to a unanimous verdict
» However, a 6-member jury verdict must be unanimous
» 11-1, 10-2, and 9-3 jury verdicts have been upheld

88
Q

Right to Impartial Jury

A

D can question potential jurors
on possible prejudices if relevant to the case (e.g., racial
biases, feelings on the death penalty)
» D can challenge for cause based on prejudices and has
unlimited challenges for cause if relevant to the case

89
Q

Peremptory Challenges

A

Cannot be used to exclude jurors on account of race or gender (violates equal protection)

90
Q

Right to Confront Witnesses

A

6th Amend. gives Ds the right to confront adverse witnesses
Confrontation — D has a right to have adverse witnesses testify
in-person and subject to cross-examination
• In-person testimony not required if:
1) Exclusion is necessary for public policy, and
2) Reliability of the testimony is otherwise assured

91
Q

Co-Defendant Confessions

A

A co-D’s confession implicating D
is inadmissible against D at a joint jury trial (OK at bench trial)
• Exceptions — confession of a co-D is admissible if either:
a) Confessing co-D testifies subject to cross-examination;
b) Ds have separate trials;
c) Confession is edited so that all portions referring to the co-D are eliminated; or
d) Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively

92
Q

Requirements for Death Penalty

A

1) Statute allowing death penalty must not be unconstitutionally
vague
2) Jury must be allowed to consider mitigating circumstances
» E.g., D’s abusive childhood, mental impairment, etc.
3) There must be at least one “aggravating circumstance” (e.g., prior convictions) supporting the sentence

93
Q

Limitations on Death Penalty

A

Death penalty cannot be imposed if either:

1) D was under 18 years old when the crime was committed;
2) D is mentally disabled (i.e., has mental retardation);
3) D is insane at the time of execution; or
4) The conviction was for felony murder, and:
a) D was not a major participant, or
b) D did not act with depraved indifference to human life

94
Q

Requirements for Valid Plea Bargain

A

1) Judge must determine plea is voluntary and intelligently made
2) Judge must ensure that D understands:
a) Nature of the charge and its critical elements
b) Maximum authorized penalty and any mandatory sentence
c) That D has a right to plead not guilty
d) That D is waiving his right to a jury trial

95
Q

Appellate Requirements for Plea Bargains

A

Appellate courts will not disturb valid pleas unless:

1) Plea was made involuntarily (e.g.., due to a misunderstanding)
2) The court that took the plea lacked jurisdiction
3) D had ineffective assistance of counsel
4) The prosecutor failed to honor the plea

MBE Bar Studies (8 decks)

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