Crim. Pro.

Question 1

Exceptions to Search Warrant Requirement - SHAPE up WISEACRE or I’ll search you without a warrant.

Answer 1

• *S**TOP (articulable, reasonable suspicion) & frisk (armed & dangerous) of outer clothing
• *H**OT pursuit
• *A**UTOMOBILE
• *P**LAIN view
• *E**VANESCENT evidence
• *W**IRETAP w/ one party’s consent
• *I**NCIDENT to lawful arrest
• *S**CHOOL property
• *E**XIGENT circumstances
• *A**DMINISTRATIVE searches (e.g. Border, Airport)
• *C**ONSENT to search expressly granted
• *R**OUTINE, non-discriminatory checkpoint stops

EAVESDROPPING on conversation with no reasonable expectation of privacy



Question 2

Exceptions to the Exclusionary Rule - U SAID G
was fruit of the poisonous tree but he’s not.

Answer 2

USE for impeachment

independent SOURCE
ATTENUATED chain of causation between tainted evidence and illegal action
INTERVENING act of free will
inevitable DISCOVERY

GOOD faith of police & magistrate in issuing invalid warrant

Question 3

Warrant Exceptions

Answer 3

Warrant Exceptions : If there is no valid warrant (and the good faith exception does not apply), then to admit any evidence gathered in a resulting search, one of the warrantless search exceptions must be used. They are:

a) Search Incident to Lawful Arrest: After a lawful arrest, police can execute a search of the contemporaneous time and place within the suspect’s wingspan (areas he has immediate access to). If the person arrested is in a car, the entire car aside from the trunk may be searched.
b) Automobile Exception: With Probable Cause (arising before any search begins, but possibly after the car is stopped), police may search an entire car and containers which may reasonably contain the item being searched for.
c) Border Searches: Searches at the point of entry of the country’s border may be effected for any reason, and require no warrant, probable cause, or any suspicion at all.
d) Plain View Doctrine: Police may seize any evidence that is apparent to them (by any of their senses) so long as they observe the evidence in a place that they may legally be, and the police have probable cause to believe the item in question is evidence of a crime.
e) Hot Pursuit: Police may enter a dwelling or any other area so long as they are within 15 minutes of a fleeing suspect.
f) Consent: Police may conduct a search with voluntary and intelligent consent to do so. If the police inform the consenter that they have a warrant, consent is negated. Consent may be denied by anyone with equal rights of ownership as the consenter.
g) Stop and Frisk: A brief detention and interrogation by police needs only reasonable suspicion and does not require a warrant or probable cause, and may include a pat down of suspect’s clothes looking for WEAPONS ONLY.
h) Evanescent Evidence: A search may be effected without a warrant when there is a high risk that the evidence or contraband will disappear immediately if a search does not take place at that moment. Examples include drugs flushed down the drain or blood needed for a BAC test. The search must not be overly intrusive.
i) Exigent Circumstances: This is the “catch-all” category. It is generally defined as being a question of law and of fact, and requires the summation of all relevant factors (including likelihood of establishing probable cause, the threat that the suspect poses, the time it will take to get a warrant, the likelihood that the search is not going to be overbroad, etc.). This category should be generally mentioned on all questions regarding warrantless search, but only as a last resort.

Question 4

Public Audio Recordings

Answer 4

Public Audio Recordings: Normally, all wiretaps require a warrant. However, if a conversation takes place in public, both parties take the risk that the other person in the conversation is wired to record them, and no warrant is needed.

Question 5

Guilty Pleas

Answer 5

Guilty Pleas: Guilty pleas may be withdrawn if they were involuntary, if the court had a lack of jurisdiction, if counsel represented the defendant ineffectively, or if the prosecution failed to uphold an agreed upon guilty plea

Question 6

Attenuation of Taint

Answer 6

Attenuation of Taint: Evidence gained in an unlawful manner or as the result of an illegal arrest or search may still be admitted to the court if the connection between the evidence and the illegal procedure was sufficiently distant.

Example: If the suspect was illegally arrested (because of a failure in obtaining a lawful warrant) and offered up a spontaneous statement admitting that the gun in question is buried in a certain spot in the backyard, and that gun was found, it could be admitted even though the spontaneous statement came from an illegal arrest.

Question 7

CONSTITUTIONAL REQUIREMENTS BINDING ON STATES

Answer 7

CONSTITUTIONAL REQUIREMENTS BINDING ON STATES

1. The Fourth Amendment prohibition against unreasonable searches and seizures and the exclusionary rule;
2. The Fifth Amendment prohibition against compulsory self-incrimination;
3. The Fifth Amendment prohibition against Double Jeopardy;
4. The Sixth Amendment right to a speedy and public trial;
5. The Sixth Amendment right to a trial by jury;
6. The Sixth Amendment right to confront witnesses and the right to compulsory process for obtaining witnesses;
7. The Sixth Amendment right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed; and
8. The Eighth Amendment prohibition against cruel and unusual punishment.

Question 8

CONSTITUTIONAL RIGHTS NOT BINDING ON STATES

Answer 8

1. The right to indictment by a grand jury for capital and infamous crimes;
2. Eighth Amendment prohibition against excessive bail. However most state constitutions create a right to bail and prohibit excessive bail.

Question 9

FOURTH AMENDMENT RIGHT: ARRESTS

Answer 9

• *Arrest**: An arrest occurs when police take a person into custody against her will for purposes of prosecution/interrogation.
• *Probable Cause**: Arrest must be based on probable cause—facts or knowledge to believe a crime has or is being committed.
• *Warrant**: Arrest warrants are generally not required prior to arresting a person in a public place. However, police generally must have a warrant to affect a non-emergency arrest of a person in his home if the Defendant either:

o Lives there; or
o Is spending the night there.

Station House Detention: Police need probable cause for an arrest in order to compel a person to go to a police station either for interrogation (questioning) or finger printing.

Question 10

FOURTH AMENDMENT RIGHTS: SEARCH AND SEIZURE

Answer 10

Like arrests, evidentiary search and seizure must be valid under the 4th Amendment. Reasonableness requires a warrant, except in seven circumstances (Warrantless Exceptions).

Question 11

THE EXCLUSIONARY RULE

Answer 11

Judge-made doctrine that prohibits the introduction of evidence obtained in violation of a defendant’s Fourth, Fifth, and Sixth Amendment rights. Under this rule, illegally obtained evidence is inadmissible in a criminal trial, and all “fruit of the poisonous tree” (evidence obtained from exploitation of the illegally obtained evidence) must also be excluded (exceptions below).

Question 12

THE FRUIT OF THE POISONOUS TREE DOCTRINE

Answer 12

Generally, all evidence obtained from the original police illegality will be excluded. There are three ways that the government can break the chain between an original unlawful action and some supposedly derived evidence.

Exceptions to the Fruit of the Poisonous Tree Doctrine
o Independent source: Evidence from a source independent of the original illegality.
o Inevitable discovery: Police would have discovered the evidence anyway without the illegal search. Need to be established by a preponderance of the evidence that the evidence inevitably would have been discovered.
o Intervening acts: Free will by the defendant between the illegal police action and the derived information.
o Violations of the Knock and Announce Rule
o Miranda Violations: There will be no Fruit of the Poisonous Tree exclusion for real or physical evidence obtained as a result of a Miranda violation.

Question 13

HARMLESS ERROR TEST

Answer 13

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond a reasonable doubt that the error was harmless.

Question 14

5th AMENDMENT

Answer 14

Once a defendant asserts his right to terminate the interrogation and requests an attorney, re-initiation of interrogation by the police without his attorney present violates his Fifth Amendment right to counsel. This is a DUE PROCESS right and is invoked prior to judicial proceedings

Question 15

6th Amendment

Answer 15

Guarantees the right to the assistance of counsel in all criminal proceedings, after judicial proceedings have begun (formal charges filed). The Sixth Amendment right to counsel is offense specific. An attorney needs to be present if the defendant is interrogated about that attorney’s case, but not unrelated matters. Also, this is the rule even if the Defendant is NOT in custody at the time of questioning.

Question 16

PRETRIAL: PRELIMINARY HEARING

Answer 16

Defendant’s liberty can be restricted only if probable cause is found. If probable cause has already been determined, no preliminary hearing is needed. But, if probable cause has not already been determined and the arrestee is being contained, a preliminary hearing to determine probable cause must be held within a reasonable time.

Question 17

PRE-TRIAL: BAIL

Answer 17

Bail can be set no higher than is necessary to assure the defendant’s appearance at trial.

Refusal to grant bail is appeal-able immediately.

Bail Reform Act: allows arrestees to be held without bail if they pose a danger or would fail to appear at trial. So long as the Defendant has the opportunity for a hearing, there will not be a procedural due process violation.

Question 18

PRE-TRIAL: GRAND JURIES

Answer 18

Use of Grand Jury: States do not have to use a grand jury. Some state constitutions require it.

o Proceedings:
• Conducted in secret.
• Defendant has no right to notice, to be present, to confront witnesses, or introduce evidence.
• Witnesses do not have the right to counsel or Miranda warnings.
• Witness has no right to have counsel present.
• Witness may become a “potential defendant” when called before grand jury (gets no warning).
• Government can present evidence that will be inadmissible at trial.
• Witness can invoke Fifth Amendment right against self-incrimination if his answer to a specific question will incriminate him.
o Exclusionary Rule does not apply

Question 19

TRIAL BY JURY

Answer 19

The Sixth and Fourteenth Amendments guarantee the right to a public trial. The press and the public have a First Amendment right to attend the trial itself, even when the defense and prosecution agree to close it. The state may constitutionally permit televising criminal proceedings over the Defendant’s objection.

Question 20

TRIAL: RIGHT TO IMPARTIAL JURY

Answer 20

In capital punishment cases, a state may not automatically exclude for cause all those who express a doubt about the death penalty. It must be determined whether the juror’s views would prevent or substantially impair performance of his duties in accordance with his instructions and oath. However, if a juror admits that s/he would give the death penalty if guilty verdict returned automatically, may be excused.

Question 21

6th AMENDMENT RIGHT TO CONFRONT WITNESSES

Answer 21

Grants a Defendant in a criminal case the right to confront adverse witnesses. Face-to-face confrontation is not required.

Question 22

5th AMENDMENT RIGHT AGAINST COMPELLED SELF-INCRIMINATION

Answer 22

The Fifth Amendment Privilege against self-incrimination can be asserted by anyone in any type of case. Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate him, is entitled to a Fifth Amendment privilege

Question 23

GUILTY PLEAS AND PLEA BARGAINING

Answer 23

A Guilty Plea waives the right to a jury trial:
o The Supreme Court will not disturb guilty pleas after sentencing.
o The Supreme Court has adopted the contract theory of plea bargaining.
• Contract theory of plea bargaining: The terms of the bargain should be revealed in the record at the plea taking and that both sides will be held to that specific deal.

Question 24

DEATH PENALTY

Answer 24

Eighth Amendment prohibits cruel and unusual punishment. Penalties may not be grossly disproportionate to the seriousness of the offense committed.

Question 25

DOUBLE JEOPARDY

Answer 25

Procedural defense that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction.

Jeopardy attaches in a jury trial when the jury is sworn. In a bench trial, jeopardy attaches when the first witness is sworn.

Jeopardy does not generally attach when the proceedings are civil

Question 26

JUVENILE PROCEEDINGS

Answer 26

A child must be given the following rights:
o Written notice of charges;
o Assistance of counsel;
o Opportunity to confront and cross examine witnesses;
o Right not to testify; and
o The right to have guilt established by proof beyond a reasonable doubt.

No right to a jury trial here. And if the juvenile court adjudicates a child a delinquent, jeopardy has attached and the prohibition against DJ prevents him from being tried as an adult for the same behavior.

Question 27

FORFEITURE ACTIONS

Answer 27

Brought directly against property and are generally regarded as quasi criminal in nature. Notice and an opportunity to be heard are required before the seizure of real property unless the government can prove that exigent circumstances exist to justify immediate seizure.

Question 28

SENTENCING

Answer 28

A Defendant has a right to counsel during sentencing but no right to cross-examine

Question 29

APPEAL

Answer 29

There is no federal constitutional right to an appeal. Conditions that make post-conviction review less accessible to the poor violate the Equal Protection Clause. Indigent defendants need not be provided with counsel during their second appeals, only first.