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Utah Essay Bar Studies > Crim Pro > Flashcards

Crim Pro Flashcards

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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
Q

Exigent Circumstances Exception

A 
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
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26
Q

Automobile Exceptions

A

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

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27
Q

Automobile Inventory Exception

A

When arrested and impounded car can be searched for safety reasons

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28
Q

Consent Exception

A

If person whose premises, items, or person will be searched voluntarily consents

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29
Q

Voluntary Confessions

A

Confessions made voluntarily based on totality of circumstances

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30
Q

Methods of Voluntary Confessions

A

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
Q

Miranda

A

Privilege against self-incrimination if invoked unambiguously

32
Q

Req of Miranda

A

Custody

Interrogation

33
Q

Custody Miranda

A

Reasonable person would believe he is not free to leave

34
Q

Interrogation Miranda

A

Words or actions by police that should know are reasonably likely to elicit an incriminating response from suspect

35
Q

Miranda Knowledge

A

Does not occur if speaking to undercover agent or gov’t informant
Even if in jail

36
Q

Miranda Statements

A

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
Q

Public Safety Exception Miranda

A

Do not apply to questioning reasonably prompted by concern for public safety

38
Q

Re-Mirandize

A

Cannot in attempt to get suspect to speak if suspect unambiguously invoked UNLESS break in custody (14 days sufficient)

39
Q

Waiver of Miranda

A

Expressly or impliedly
Admissible ONLY if voluntarily, knowingly, and intelligently made
Mere silence insufficient

40
Q

Right to Counsel (Miranda)

A

If invokes, police must cease all questioning until suspect consulted lawyer AND lawyer must be present with any further questioning

41
Q

Right to Counsel at Line up or Pre Trial

A

Post-charge line-up or show-up including sentencing

Does not apply to photo identifications OR physical evidence (i.e. handwriting, blood, fingerprint)

42
Q

6th Amend Right to Counsel

A

Must invoke for each offense

43
Q

Deliberate Elicitation 6th Amend

A

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
Q

6th Amend Due Process

A

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
Q

Exclusionary Rule

A

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
Q

Standing for Exclusionary Rule

A

Evidence wrongfully obtained must have been
In violation of defendant’s own Con rights
Not 3rd party

47
Q

Effect of Exclusionary Rule

A

Inadmissible as “fruit of the poisonous tree” i.e. evidence found as result of original wrongfully obtained evidence

48
Q

Exceptions to Exclusionary Rule

A

Independent Source
Inevitable Discovery
Purged Taint

49
Q

Independent Source

A

Could have been obtained from independent source separate from illegal source

50
Q

Inevitable Discovery

A

Would inevitably have been discovered by other police techniques
If had not been obtained through illegal discovery

51
Q

Purged Taint

A

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
Q

Exclusionary Rule does not Apply to

A

Civil, grand jury, or parole proceedings

53
Q

Bail

A 
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
Q

Jury Trial Crim Pro

A

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
Q

Impartial Jurors Crim Pro

A

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
Q

Voir Dire Crim Pro

A

Each side has unlimited strikes for cause AND

Bias, prejudice, related to party, etc.

57
Q

Limited Peremptory Strikes Crim Pro

A

For any reason other than gender or race (sexual orientation)
Triggers EP

CA 20 if death/life sentence
CA 10 in all others

58
Q

Speedy Jury Crim Pro

A 
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
Q

Preliminary Hearing Crim Pro

A

If pleads not guilty, then right to prelim hearing if PC has not been established unless waives

60
Q

Standard of effectiveness of Counsel Crim Pro

A

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
Q

Substitution of Counsel Crim Pro

A

Allowed if the interests of justice so require
Taking into account conflicts
Interests of defendant and court AND
Timeliness of request

62
Q

Self-Representation for Crim

A

Permitted to knowingly and intelligently waiving right to counsel

63
Q

Right to Confront Witnesses

A

Right to confront adverse witnesses
Compel testimony
Subpoena testimony of adverse or hostile witnesses as well as cross-examine witnesses

64
Q

Testimonial Statements for 6th Amend

A

May not admit statements made by third party
Unless declarant available for cross-examination
Either at trial or at time statement was made

65
Q

Non-Testimonial for 6th Amend

A

Made in course of police interrogation under
Circumstances objectively indicating primary purpose
To enable assistance to ongoing emergency
I.e. 911 calls

66
Q

Joint Co-Defendants

A

Prohibited if one invokes UNLESS can be redacted OR co-defendant takes stand and subjects himself to cross-examination

67
Q

Self Incrimination 5th Amend

A

Protects from compulsion to give testimony or communicative evidence that could expose him to criminal liability

68
Q

Double Jeopardy

A

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
Q

Sentencing

A

Prohibits cruel and unusual punishment by preventing the penalty imposed on defendant from being grossly disproportionate to seriousness of crime

70
Q

Cannot be sentenced to death if

A

At least 1 juror finds defendant mentally retarded OR

Defendant was minor at time of crime

71
Q

Minor cannot be sentenced to

A

Mandatory life without parole

72
Q

Victim impact statements during penalty phase

A

Do not violate 8th Amend

73
Q

Pleas Crim Pro

A

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

74
Q

Fitness to Stand Trial

A

Incompetency bar to trial
Constitutional duty to investigate and determine
Same as competent to plead guilty:
Defendant comprehends nature of proceedings
Ability to consult lawyer with reasonable degree of rational understanding.

Utah Essay Bar Studies (16 decks)

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