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Crim Pro Flashcards

1
Q

Fourth Amendment

A

Protects individuals against

Unreasonable searches and seizures of property and against unlawful arrests

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2
Q

Arrest Req

A

Warrant generally not required for arrest
Unless arrested in home
Must be issued on probable cause reasonable belief the person violated law

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3
Q

Routine Stops

A

Typically Permitted:
Automobile
Checkpoints/Roadblocks
Terry Stop & Frisk

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4
Q

Auto Routine Stop

A

Can randomly stop automobiles if reasonable suspicion of wrongdoing
Based on an objective standard
All occupants may be asked to exit for any reason

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5
Q

Checkpoints/Roadblocks

A

Fixed checkpoints to test for compliance with laws relating to driving or special law enforcement needs involved
I.e. immigration
Must be neutral, articulable standard

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6
Q

Terry Stop & Frisk

A

Allowed if reasonable suspicion based on totality of circumstances of criminal activity OR involvement
Supported by articulable facts
May include pat-down of outer clothing for weapons if suspect appears dangerous and under plain feel doctrine
May seize contraband discovered if identity is immediately apparent

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7
Q

Search and Seizure

A

Warrant required for gov’t to search and seize property located where one has reasonable expectation of privacy because right to be free from unreasonable search and seizure

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8
Q

Gov’t Action Crim Pro

A

4th Amend protects only against gov’t action

May be individuals acting under direction of gov’t

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9
Q

REP

A

Based on totality of the circumstances

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10
Q

REP Open fields/fly over

A

Outside home that are held out to public

Not reasonable

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11
Q

REP Sensory Enhancing Tech

A

Violates expectation of privacy BUT tech available to general public may be permitted

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12
Q

REP Dog Sniffing

A

May sniff luggage at airports and cars during legitimate traffic stop BUT cannot extend beyond reasonably required time to complete stop UNLESS reasonable suspicion other than traffic violation
Cannot use at homes w/out warrant OR exception

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13
Q

Standing 4th Amend

A

Of a person’s body, assume REP UNLESS prisoner, then no REP

Of a place/thing, need REP

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14
Q

Warrant

A

Required when person has reasonable expectation of privacy

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15
Q

Probable Cause for Warrant

A

Reasonable items be searched are connected w/ criminal activity will be found in place to be searched
If informant, sufficiency by totality

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16
Q

Req of Warrant

A

Probable Cause
Particular description of person/place to be searched
Neutral magistrate

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17
Q

Execution of Warrant

A

No unreasonable delay
Knock & Announce
W/ Scope

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18
Q

Scope of Warrant

A

Seize items described and cannot exceed scope

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19
Q

Good Faith Exception to Warrant

A

Officer acts in reasonable reliance on facially valid search warrant
Issued by proper magistrate AND warrant found to be unsupported by PC later

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20
Q

Exceptions to Good Faith of Warrant

A

Knew information in affidavit was false OR would have known but for reckless disregard of truth
Lack of PC such that magistrate’s reliance unreasonable
Defective on its face

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21
Q

Exceptions to Search Warrant

A 
SITA
Plain View
Exigent Circumstances
Automobile Exceptions
Automobile Inventory
Consent
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22
Q

SITA Exception

A

May search the area within

Arrestee’s immediate control (wingspan)

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23
Q

Protective Sweep SITA

A

May conduct all or part of premises IF reasonable belief based on specific and articulable facts that other dangerous individuals may be present

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24
Q

Plain View Exception

A

If they see an object or contraband in plain view, so long as legitimately on premises OR right to be in position to obtain the view

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25
Exigent Circumstances Exception
``` Probable cause and Necessary to: Prevent imminent destruction of evidence Prevent imminent injury to persons Hot pursuit: Suspect that reasonably believed Has entered particular premises ```
26
Automobile Exceptions
Search car and compartments if reasonable to believe arrestee might access vehicle at time of search (but think PC) OR vehicle contains evidence of offense causing arrest
27
Automobile Inventory Exception
When arrested and impounded car can be searched for safety reasons
28
Consent Exception
If person whose premises, items, or person will be searched voluntarily consents
29
Voluntary Confessions
Confessions made voluntarily based on totality of circumstances
30
Methods of Voluntary Confessions
Non-governmental coercion: Admissible By person mentally ill: Admissible Police coercion (different than Miranda violation): Cannot use it during case in chief OR to impeach defendant
31
Miranda
Privilege against self-incrimination if invoked unambiguously
32
Req of Miranda
Custody | Interrogation
33
Custody Miranda
Reasonable person would believe he is not free to leave
34
Interrogation Miranda
Words or actions by police that should know are reasonably likely to elicit an incriminating response from suspect
35
Miranda Knowledge
Does not occur if speaking to undercover agent or gov’t informant Even if in jail
36
Miranda Statements
Right to remain silent Anything he says can be used against him Right to have attorney present, or if he cannot afford one, one will be appointed
37
Public Safety Exception Miranda
Do not apply to questioning reasonably prompted by concern for public safety
38
Re-Mirandize
Cannot in attempt to get suspect to speak if suspect unambiguously invoked UNLESS break in custody (14 days sufficient)
39
Waiver of Miranda
Expressly or impliedly Admissible ONLY if voluntarily, knowingly, and intelligently made Mere silence insufficient
40
Right to Counsel (Miranda)
If invokes, police must cease all questioning until suspect consulted lawyer AND lawyer must be present with any further questioning
41
Right to Counsel at Line up or Pre Trial
Post-charge line-up or show-up including sentencing | Does not apply to photo identifications OR physical evidence (i.e. handwriting, blood, fingerprint)
42
6th Amend Right to Counsel
Must invoke for each offense
43
Deliberate Elicitation 6th Amend
Dependent on the deliberate or intentional nature of officer’s efforts to gain incriminating evidence Has been extended to “jailhouse snitches” Whether questions or just gained info when gov’t set it up and “Stimulated” conversation Passive listener will not violate
44
6th Amend Due Process
Identifications not unnecessarily suggestive and so conductive to mistaken identification that Unfair to client Hospital: Admissible if immediate need Inability of victim to come to the station OR Victim might die
45
Exclusionary Rule
Judge-made rule that prohibits prosecution from Introducing evidence obtained in violation of Defendants 4th, 5th, or 6th Amend rights May still be used to impeach
46
Standing for Exclusionary Rule
Evidence wrongfully obtained must have been In violation of defendant’s own Con rights Not 3rd party
47
Effect of Exclusionary Rule
Inadmissible as “fruit of the poisonous tree” i.e. evidence found as result of original wrongfully obtained evidence
48
Exceptions to Exclusionary Rule
Independent Source Inevitable Discovery Purged Taint
49
Independent Source
Could have been obtained from independent source separate from illegal source
50
Inevitable Discovery
Would inevitably have been discovered by other police techniques If had not been obtained through illegal discovery
51
Purged Taint
Sufficient number of additional factors that Intervened between original illegality AND final discovery that link is too tenuous such that intervening factors have purged taint of illegal discovery
52
Exclusionary Rule does not Apply to
Civil, grand jury, or parole proceedings
53
Bail
``` Requires bail shall not be excessive or Unduly high based on factors: Seriousness of crime Weight of the evidence Defendant’s financial abilities Defendant’s character ```
54
Jury Trial Crim Pro
Right for serious offenses that have potential imprisonment of greater than 6 months At least 6 persons and can consist of 12 persons 6 person jury requires unanimous verdict Federal: unanimous required 12 person state: only substantial majority Modernly unanimous or considered hung jury
55
Impartial Jurors Crim Pro
Must be impartial AND Fair cross-section of community Not met if excluded is distinctive group Representation of group in venire is not fair and reasonable In relation to number of such persons in community AND due to systematic exclusion in jury selection
56
Voir Dire Crim Pro
Each side has unlimited strikes for cause AND | Bias, prejudice, related to party, etc.
57
Limited Peremptory Strikes Crim Pro
For any reason other than gender or race (sexual orientation) Triggers EP CA 20 if death/life sentence CA 10 in all others
58
Speedy Jury Crim Pro
``` Viewed on case-by-case basis Factors: Length of delay Reason for delay Prejudice to defendant as result Time and manner in which defendant asserted his right ```
59
Preliminary Hearing Crim Pro
If pleads not guilty, then right to prelim hearing if PC has not been established unless waives
60
Standard of effectiveness of Counsel Crim Pro
Must prove performance deficient in that counsel did not act as a reasonably competent attorney would have acted AND prejudicial that, but for the deficiency result would have been different
61
Substitution of Counsel Crim Pro
Allowed if the interests of justice so require Taking into account conflicts Interests of defendant and court AND Timeliness of request
62
Self-Representation for Crim
Permitted to knowingly and intelligently waiving right to counsel
63
Right to Confront Witnesses
Right to confront adverse witnesses Compel testimony Subpoena testimony of adverse or hostile witnesses as well as cross-examine witnesses
64
Testimonial Statements for 6th Amend
May not admit statements made by third party Unless declarant available for cross-examination Either at trial or at time statement was made
65
Non-Testimonial for 6th Amend
Made in course of police interrogation under Circumstances objectively indicating primary purpose To enable assistance to ongoing emergency I.e. 911 calls
66
Joint Co-Defendants
Prohibited if one invokes UNLESS can be redacted OR co-defendant takes stand and subjects himself to cross-examination
67
Self Incrimination 5th Amend
Protects from compulsion to give testimony or communicative evidence that could expose him to criminal liability
68
Double Jeopardy
Protects individual from being tried for same offense twice after attaches: Jury has been empaneled and sworn in for jury trial First witness sworn in for bench trial Does not apply to prelim or grand jury
69
Sentencing
Prohibits cruel and unusual punishment by preventing the penalty imposed on defendant from being grossly disproportionate to seriousness of crime
70
Cannot be sentenced to death if
At least 1 juror finds defendant mentally retarded OR | Defendant was minor at time of crime
71
Minor cannot be sentenced to
Mandatory life without parole
72
Victim impact statements during penalty phase
Do not violate 8th Amend
73
Pleas Crim Pro
Can settle by plea bargain to receive less serious charge or lighter sentence if competent, understands charge, and understands consequence of plea Must be voluntary and intelligently Prosecutor has no obligation to agree AND Judge can refuse if he thinks defendant didn’t commit crime

CA Essay Bar Studies (15 decks)

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