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Crim Pro Flashcards

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1
Q

When has a person been seized? What in particular must be done by the officer?

A

Under the TOTALITY OF CIRCUMSTANCES, would a RP not feel free to decline officer’s requests and terminate the counter. The officer must make a physical application of force or the person must submit to the officer’s show of force

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2
Q

What does the 4A provide?

A

People should be free in their persons from unreasonable searches and seizures

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3
Q

What is a search?

A

A government intrusion into an area where a person has a R and justifiable expectation of privacy

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4
Q

What is a seizure?

A

An exercise of control by the government over a person or thing

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5
Q

What is required in order to arrest someone?

A

Probable Cause

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6
Q

When is probable cause present?

A

When, at the time of arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonable person to believe that the suspect has committed a crime or is committed a crime; it’s based on the TOTALITY OF THE CIRCUMSTANCES

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7
Q

What is needed to arrest a person in their own home?

A

A warrant

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8
Q

Do police generally need a warrant to make an arrest?

A

No, generally warrants are not needed for arrests in a public place

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9
Q

What is needed to make a Terry stop/investigatory detention?

A

Reasonable suspicion supported by articulable facts; or if they believe the suspect is armed and dangerous

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10
Q

When does R suspicion exist?

A

Requires something more than a vague suspciion, but full probable cause is not required. Determined under the TOTALITY OF THE CIRCUMSTANCES

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11
Q

When may the police stop a car?

A

Police must have at least R supsicion to believe a crime has been committed; can also occur if there are special law enforcement needs

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12
Q

What are the requirements for a roadblock?

A

The stop of the cars must be made on the basis of some neutral, articulable standard AND be designed to serve purposes closely related to a particular problem related to automobiles and their mobility

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13
Q

How do you determine if there was an improper search or seizure?

A

(1) Was there gov’t conduct?

(2) Does the D have standing/did they have a R expectation of privacy

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14
Q

Where does a person have a R expectation of privacy?

A
  1. places owned by the person
  2. person’s home – extends to curtilage
  3. overnight guest
    (no R expectation of privacy in places held out to the public)
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15
Q

What things are held out to the public? And thus there is no R expectation of privacy?

A
  1. the sound of one’s voice
  2. handwriting
  3. paint on the outise of a car
  4. the smell of one’s luggage or car
  5. bank account records
  6. open fields
  7. areas the can be viewed during a fly-over
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16
Q

What does a warrant need to be valid?

A
  1. must be issued by a neutral and detached magistrate
  2. based on probable cause
  3. particularly describe the place to be searched and the items to be seized
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17
Q

is a warrant valid if it is based on a material false statement that was made intentionally or recklessly included?

A

No, it’s invalid

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18
Q

When executing a warrant, what must an officer generally do?

A

Knock and Announce

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19
Q

What MPX does violation of the knock and announce rule have at terial?

A

Well, it doesn’t allow for the application of the exclusionary rule; i.e. the evidence is still included

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20
Q

When is a “no knock” entry allowed?

A

When the officer believes knocking will lead to the destruction of evidence, will inhibit the investigation, o could be dangerous or futile

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21
Q

What are the permissible warrantless earches?

A
  1. search incident to lawful arrest (contemporaneous requirement)
  2. automobile exception
  3. plain view
  4. consent
  5. stop and frisk
  6. hot pursuit of a fleeing felon
  7. evanescent evidence (evidence likely to disappear before a warrant is obtained, i.e. tissue sample under fingernails)
  8. emergency aid/community caretaker
  9. inventory searches incident to arrest
  10. public school searches by school officials valid if R
  11. mandatory drug testing
  12. border searches
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22
Q

What are the elements of the automobile exception to the warrantless search requirement?

A
  1. need probable cause to belive vehicle contains contrband or evidence of crime
  2. may search anywhere in car where item that is subject of search may be found
    * **contemporaneousness not required
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23
Q

what is req’d for the plain view exception to the warrantless search requirement?

A
  1. must be legitatmely on premises

2. object must be in plain view

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24
Q

When is a search via stop and frisk allowed?

A
  1. during a valid terry stop
  2. police have R belief that supect is armed and dangerous
  3. may pat down outer clothing for weapons
  4. may seize anything that by plain feel is weapon or contraband
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25
Q

when is a public school search allowed?

A
  1. it’s reasonable if it offers a moderate change of finding evidence of wrongdoing
  2. implement thru meaens R related to objectives of the search
  3. not excessively intrusive
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26
Q

how do we judge if DP was violated, i.e. thru an involuntary confession?

A

totality of circumstances: was there gov’t compulsion?

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27
Q

when does the sixth amendment right to counsel attach?

A

when adversary judicial proceedings are begun

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28
Q

if defendant was denied right to counsel, what is the remedy?

A

at a trial phase, automatic reversal; if nontrial, harmless error standard

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29
Q

if someone confesses but there has also been a violation of the right to counsel, is the confession admissible?

A

the confession may not be used to prove guilt but it may be used for impeachment purposes

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30
Q

Explain concepts of “unreliable ear” and “uninvited ear”

A

Unreliable ear: the person has no 4A expectation of privacy when talking to someone, if the person turns out to be an informer; no 4A protection
Uninvited Ear: a speaker has no 4A claim if she makes no attempt to keep the conversation private

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31
Q

Which amendment is Miranda attached to?

A

5A

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32
Q

Does a traffic stop count as custodial?

A

No, as long as it is temporary and brief

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33
Q

If a suspect is being rigorously questioned/interrogated by an informer, are Miranda warnings req’d?

A

Not necessarily. The suspect must know that they are being interrogated by the police. DNA to informant or probation officer

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34
Q

When must Miranda warnings be given?

A

Prior to custodial interrogation by police

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35
Q

What is “interrogation”?

A

Any police words or conduct designed to elicit an incriminating response

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36
Q

How long is the duration of prohibition against question once defendant invokes the right to counsel?

A

14 days

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37
Q

What is the effect at trial of a violation of a defendant’s right to remain silent or to counsel?

A

Evidence is inadmissible as substantive; however, can still be brought up on impeachment of defendant’s testimony; CN bring up D’s silence after receiving warnings

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38
Q

What is the exception to when Miranda warnings are req’d to be given by police?

A

Public safety exception - must be reasonably prompted by concern for public safety

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39
Q

What applies during a pretrial identification?

A

the 6A right to counsel – counsel has right to observe the lineup and look for any suggestive methods by police; DN allow counsel to set up the lineup

40
Q

Is there a 6A right to counsel at a photo identification?

A

No

41
Q

What is the standard for a pretrial identification?

A

Did the pretrial identification deny due process? To determine: was the identification UNNECESSARILY SUGGESTIVE and was there SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION. High standard.

42
Q

What is the remedy for an unconstitutional identification?

A

Exclusion of the evidence unless there is an indepndent source for the identification. Factors: opportunity of the witness to observe the criminal at the time of the crime, the witness’s degree of attention, accuracy of prior description, time b/t crime and confrontation

43
Q

What is the exclusionary rule?

A

Evidence obtained in violation of defendant’s fourth, fifth, or sixth amendment rights generally will be excluded to deter government violation of constitutional rights. Specifically, applies ONLY to violations of the Constitution or federal law.

44
Q

what is the purpose of the exclusionary rule?

A

to deter the gov’t from violating a person’s constitutional rights; if the gov’t cannot use evidence obtained in violation of htose rights, it will be less likely to act in contravention to those rights

45
Q

what is the scope of the exclusionary rule?

A

fruit of the poisonous tree: generally, not only must illegally obtained evidence be excluded, but also all evidence obtained or dervied from use of that evidence

46
Q

what is the test for the exceptions to the exclsuionary rule?

A

balancing test: lower courts must balance the rule’s purpose (i.e. deterrence of police misconduct) against its costs (exclusions of probative evidence)

47
Q

What are the 8 exceptions to the exclusionary rule?

A
  1. independent source
  2. attenuation – intervening act or circumstance
  3. inevitable discovery by police
  4. live witness testimony
  5. in-court identification
  6. violations of no-knock entry rule
  7. good faith reliance on a defective search warrant
  8. use of evidence to impeach
48
Q

Describe the exception to the exclusionary rule, attenuation – intervening act or circumstance. What factors does the court consider?

A

If the cnxn b/t the unconstitutional police conduct and the evidence is remote or has been interupted by some intervening circumstance, so that the causal link b/t the police misconduct and the evidence is broken, the evidence WN be surpressed. the court considers:

  1. The TEMPORAL PROXIMITY b/t the unconstitutional conduct and the discovery of the evidence (the closer the proximity, the less likely the exception applies)
  2. The presence of INTERVENING CIRCUMSTANCES; and
  3. most importantly, the PURPOSE AND FLAGRANCY of the official misconduct.
49
Q

In which type of proceedings is the exclusionary rule inapplicable?

A
  1. grand juries
  2. civil proceedings: exclusionary rule DN prohibit one sovereign from using in civil proceedings evidence that was illegally seized by the agent of another sovereign
  3. violations of state law
  4. internal agency rules
  5. proceedings to revoke parole
50
Q

If evidence does come in violation of the exclusionary rule, what test applies?

A

Harmless error test. Gov’t must show beyond a R doubt that the admission was harmless.

51
Q

What is a Defendant entitled to after detention but before trial?

A

A preliminary hearing, i.e. a Gerstein hearing, where the court decides whether probable cause exists to hold the person

52
Q

When must a Gerstein hearing occur?

A

Within a reasonable time, i.e. 48 hours. DNA if PC already found by grand jury or under arrest warrant

53
Q

When does an initial appearance occur?

A

soon after arrest, occurs even if preliminary hearing is not necessary; defendant told of charges, bail set, appointment of counsel if needed

54
Q

What constitutional right guarantees bail in a federal trial?

A

Due Process

55
Q

Is bail required to be offered by states?

A

No, but many do

56
Q

Are states req’d to have grand juries?

A

No, 5A right to indictment by grand jury has N been incorporated into the 14A, but some state constitutions require grand jury indictment

57
Q

What do grand juries do?

A

they determine if there is probable cause to prosecute by returning the bill of indictment submitted by the prosecutor as a “true bill”

58
Q

How are grand jury proceedings conducted?

A

in secret

59
Q

Describe the subpoena power of grand juries.

A

Broad. A grnad jury may use its subpoena power to investigate matters before it or to initiate criminal proceedings of its own. A grand jury subpoena may be quashed ONLY if the opposing party can prove there is no R possibility that material sought will be relevant to the grand jury investigation.

60
Q

What is there no right to during a grand jury proceeding?

A

Counsel, Miranda warnings, warnings that witnesses may be a potential defendant, exclude evidence that would be inadmissible at trial, challenge subpoena for lack of probable cause

61
Q

How do you detrmine whether a defendant’s right to a speedy trial has been violated?

A

Under the TOTALITY OF CIRCUMSTANCES, courts will consider:

  1. length of delay
  2. reason for delay
  3. whether D asserted his rights, and
  4. prejudice to D
62
Q

what is the remedy for the violation of a right to a speedy trial?

A

dismissal w/ prejudice

63
Q

Describe the prosecutor’s duties to disclose.

A

Governmemtn must disclose exculaptory evidence; failure to do so is a DP violation if there is a R probability that trial result would have been different if undisclosed evidence had been presented at trial

64
Q

What is the MPX of excessive pretrial publicity?

A

May necessitate change of venue

65
Q

When is a D not competent to stand trial? (2)

A
  1. D lacks arational and factual understanding of the charges and proceedings OR
  2. D lacks ability R to consult w/ lawyer
66
Q

May the judge bring up the issue of D’s competency sua sponte?

A

Yes

67
Q

Who has the burden to prove incompetency?

A

May be placed on D

68
Q

Which amendments provide the right to a public trial?

A

6A and 14A

69
Q

Are PC hearings open to the public?

A

Yes

70
Q

Are suppression hearings open to the public?

A

Yes, unless:

  1. party seeking closure has overriding interest
  2. closure is no broader than necessary
  3. other R alternatives were considered
  4. court makes finding to support closure
71
Q

Which amendment provides a right to a jury trial?

A

6A

72
Q

What does the right to a jury trial entail? i.e., how many jurors are you guaranteed?

A

At least six jurors, 9-3 convictions have been upheld (no absolute right to unanimity); six-person juries must be unainmous

73
Q

When does the right to a jury trial apply?

A

For serious offenses, i.e. offenses with punishments of imprisonments for more than six months

74
Q

How do you show that a peremptory strike was improper?

A
  1. the D must show FACTS OR CIRCUMSTANSTANCES THAT RAISE AN INFERENCE that the exclusion of potential jurors was based on race or gender.
  2. if such a showing is made, the prosecutor must then come forward with a RACE-NEUTRAL EXPLANATION for the strike (N a reasonableness standard, just a race-neutral)
  3. the judge then determines whether the prosecutor’s explanation was the genuine reason for striking the juror, or mrely a pretext for purposeful discrimination. if the judge believes that the PROSECUTOR WAS SINCERE, the strike may be upheld

~~All based on an equal protection challenge

75
Q

When does an opposition to the death penalty prevent a juror from serving on a capital case?

A

if it would substantially impair their performance

76
Q

Which amendment provides for effective assistance of counsel?

A

6A

77
Q

How do you show ineffective assistance of counsel?

A

First, counsel is presumed effective. Counsel is only ineffective if

  1. Deficient performance AND
  2. But for the deficiency, result of proceeding would have been different

**Unsuccessful trial tactics do not prove an ineffective assistance of counsel

78
Q

Which amendment grants D’s the right in criminal cases to confront adverse witnesses?

A

6A

79
Q

What is the general rule re: confessions implicating co-defendants?

A

Generally they are prohibited. Ex: if 2 persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement, even w/ limiting instructions.

80
Q

What are the exceptions to the general rule of admitting a confession that implicates a co-defendant?

A
  1. admissible if references can be excised (not just blanks) OR
  2. confessing D takes stand and subjects herself ot cross-examination
81
Q

What type of plea waives the right to a trial by jury?

A

Guilty plea

82
Q

What must the judge do re: a guilty plea?

A

They must determine that the the plea is VOLUNTARY AND INTELLIGENT. This must be done by addressing the D ON THE RECORD.

83
Q

What must the judge make sure the D knows?

A
  1. the nature of the charge and the crucial elements
  2. the maximum possible penalty and any mandatory minimum
  3. that he has a right not to plead guilty, and that, if he does, he waives the right to trial
84
Q

When is a D prohibited from w/drawing a guilty plea?

A

If it is the intelligent choice amongst the alternatives

85
Q

Is there a right to counsel at sentencing?

A

Yes

86
Q

Is there a right to confrontation at sentencing?

A

Generally, no. Unless,

  1. there is a magnified sentence based on new findings of fact
  2. capital sentencing requires more confrontation rights
87
Q

Can a judge enforce a harsher sentence after a successful appeal and retrial?

A

Yes, but the record must show reasons for harsher sentence

88
Q

What does the 8A prohibit?

A

Cruel + unusual punishment

89
Q

Is the death penalty valid for murder and felony murder?

A

Yes to murder, yes to felony murder if accomplice participated in a major way and acted iwth reckless disregard to the value of human life

90
Q

Is the death penatly valid for rape, if prisoner is insane/intellectually disabled, or if younger than 18 when crime was commited?

A

No, death penalty is invalid

91
Q

Is life imprisonment w/o the possibilty of parole valid for a minor?

A

No, violation of 8A

92
Q

Is there a federal constitutional right to an appeal?

A

No

93
Q

On appeal, does a D have a right to represent themselves?

A

No

94
Q

If a new rule is announced, how does that affect cases on appeal?

A

the new rule only applies to cases on direct appeal

95
Q

Who has the burden and what is the evidentiary burden for a habeus corpus petitiion?

A

Civil action challenging lawfulness of detetion; petititoner has burden to show unlawful detention by preponderance of evidence

96
Q

Does a corporation have a right against self-incrimination?

A

No

97
Q

Does the right against self-incrimination apply to physical evidence or documents? What does it apply to?

A

Only testimony; DN apply to physical evidence or documents

Criminal Law (3 decks)

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