Crim Pro Flashcards
Fourth Amendment
Protects individuals against
Unreasonable searches and seizures of property and against unlawful arrests
Arrest Req
Warrant generally not required for arrest
Unless arrested in home
Must be issued on probable cause reasonable belief the person violated law
Routine Stops
Typically Permitted:
Automobile
Checkpoints/Roadblocks
Terry Stop & Frisk
Auto Routine Stop
Can randomly stop automobiles if reasonable suspicion of wrongdoing
Based on an objective standard
All occupants may be asked to exit for any reason
Checkpoints/Roadblocks
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
Terry Stop & Frisk
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
Search and Seizure
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
Gov’t Action Crim Pro
4th Amend protects only against gov’t action
May be individuals acting under direction of gov’t
REP
Based on totality of the circumstances
REP Open fields/fly over
Outside home that are held out to public
Not reasonable
REP Sensory Enhancing Tech
Violates expectation of privacy BUT tech available to general public may be permitted
REP Dog Sniffing
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
Standing 4th Amend
Of a person’s body, assume REP UNLESS prisoner, then no REP
Of a place/thing, need REP
Warrant
Required when person has reasonable expectation of privacy
Probable Cause for Warrant
Reasonable items be searched are connected w/ criminal activity will be found in place to be searched
If informant, sufficiency by totality
Req of Warrant
Probable Cause
Particular description of person/place to be searched
Neutral magistrate
Execution of Warrant
No unreasonable delay
Knock & Announce
W/ Scope
Scope of Warrant
Seize items described and cannot exceed scope
Good Faith Exception to Warrant
Officer acts in reasonable reliance on facially valid search warrant
Issued by proper magistrate AND warrant found to be unsupported by PC later
Exceptions to Good Faith of Warrant
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
Exceptions to Search Warrant
SITA Plain View Exigent Circumstances Automobile Exceptions Automobile Inventory Consent
SITA Exception
May search the area within
Arrestee’s immediate control (wingspan)
Protective Sweep SITA
May conduct all or part of premises IF reasonable belief based on specific and articulable facts that other dangerous individuals may be present
Plain View Exception
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
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
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
Automobile Inventory Exception
When arrested and impounded car can be searched for safety reasons
Consent Exception
If person whose premises, items, or person will be searched voluntarily consents
Voluntary Confessions
Confessions made voluntarily based on totality of circumstances
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
Miranda
Privilege against self-incrimination if invoked unambiguously
Req of Miranda
Custody
Interrogation
Custody Miranda
Reasonable person would believe he is not free to leave
Interrogation Miranda
Words or actions by police that should know are reasonably likely to elicit an incriminating response from suspect
Miranda Knowledge
Does not occur if speaking to undercover agent or gov’t informant
Even if in jail
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
Public Safety Exception Miranda
Do not apply to questioning reasonably prompted by concern for public safety
Re-Mirandize
Cannot in attempt to get suspect to speak if suspect unambiguously invoked UNLESS break in custody (14 days sufficient)
Waiver of Miranda
Expressly or impliedly
Admissible ONLY if voluntarily, knowingly, and intelligently made
Mere silence insufficient
Right to Counsel (Miranda)
If invokes, police must cease all questioning until suspect consulted lawyer AND lawyer must be present with any further questioning
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)
6th Amend Right to Counsel
Must invoke for each offense
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
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
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
Standing for Exclusionary Rule
Evidence wrongfully obtained must have been
In violation of defendant’s own Con rights
Not 3rd party
Effect of Exclusionary Rule
Inadmissible as “fruit of the poisonous tree” i.e. evidence found as result of original wrongfully obtained evidence
Exceptions to Exclusionary Rule
Independent Source
Inevitable Discovery
Purged Taint
Independent Source
Could have been obtained from independent source separate from illegal source
Inevitable Discovery
Would inevitably have been discovered by other police techniques
If had not been obtained through illegal discovery
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
Exclusionary Rule does not Apply to
Civil, grand jury, or parole proceedings
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
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
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
Voir Dire Crim Pro
Each side has unlimited strikes for cause AND
Bias, prejudice, related to party, etc.
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
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
Preliminary Hearing Crim Pro
If pleads not guilty, then right to prelim hearing if PC has not been established unless waives
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
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
Self-Representation for Crim
Permitted to knowingly and intelligently waiving right to counsel
Right to Confront Witnesses
Right to confront adverse witnesses
Compel testimony
Subpoena testimony of adverse or hostile witnesses as well as cross-examine witnesses
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
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
Joint Co-Defendants
Prohibited if one invokes UNLESS can be redacted OR co-defendant takes stand and subjects himself to cross-examination
Self Incrimination 5th Amend
Protects from compulsion to give testimony or communicative evidence that could expose him to criminal liability
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
Sentencing
Prohibits cruel and unusual punishment by preventing the penalty imposed on defendant from being grossly disproportionate to seriousness of crime
Cannot be sentenced to death if
At least 1 juror finds defendant mentally retarded OR
Defendant was minor at time of crime
Minor cannot be sentenced to
Mandatory life without parole
Victim impact statements during penalty phase
Do not violate 8th Amend
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
