Crim Pro

Question 1

**exceptions to warrant requirement

Answer 1

ESCAPES

Exigent circumstances
Search incident to arrest
Consent
Automobiles
Plain view
Evidence obtained from administrative searches
Stop & frisk

Question 2

**what’s the test for figuring out whether two offenses court as same offense for double jeopardy?

Answer 2

whether each contains one element that the other doesn’t

Blockburger test
block (square) burger (circle)

Question 3

is the govt required to give you a lawyer at a discretionary appeal

Answer 3

no, not a critical proceeding

Question 4

when does jeopardy attach at a BENCH trial?

Answer 4

when the first witness is sworn in

bench = basketball = we are all witnesses

Question 5

Is physical evidence obtained as a result of an involuntary statement presumptively inadmissible?

Answer 5

yes

Question 6

Is physical evidence obtained as a result of a voluntary statement that was given without proper Miranda warnings inadmissible?

Answer 6

no

Question 7

Is a search warrant required to search an automobile if the police have probable cause to believe it contains contraband?

Answer 7

no

Question 8

In describing items to be seized, is it sufficient to refer in general to fruits, instrumentalities, and evidence of a particular crime.

Answer 8

no

Question 9

4th A protects against state actors. what about retail security guard who police asks to let them know if he hears anything?

Answer 9

no…not an agent/instrument of the police; they didn’t direct him

Question 10

examples of exigent circumstances

Answer 10

reasonable belief of danger to the officer or destruction of evidence

Question 11

A warrant to arrest an individual [does / does not] implicitly authorize entry into the arrestee’s home to serve the warrant when the police have reason to believe that the arrestee is present

Answer 11

does

Question 12

A police officer [ may / may not] arrest a person in another’s home without a SEARCH warrant (even if they have an arrest warrant), absent exigent circumstances or valid consent from the neighbor

Answer 12

may not

Question 13

**does failure to knock invalidate the arrest, the evidence obtained, or both/neither?

Answer 13

the arrest

Question 14

**the Fifth Amendment [does / does not] prohibit a defendant from being compelled to produce a personal diary, and its contents [are / are not] admissible if it is seized during a valid search

Answer 14

does prohibit compulsion; are admissible if seized

Question 15

Does the Fourth Amendment require police to obtain a warrant to search a vehicle if they have probable cause to believe that it contains contraband or evidence of criminal activity?

Answer 15

no

Question 16

Can cops search the trunk if they have reasonable cause to believe that it contains contraband?

Answer 16

yes

Question 17

**Once the Sixth Amendment right to counsel is properly invoked, does it apply only to the specific offense at issue in those proceedings?

Answer 17

yes

Question 18

**D sought to reverse her conviction on grounds that members of another racial group were intentionally excluded from service on the grand jury due to race. Appeals court determined error was harmless. Overturn conviction?

Answer 18

yes, because discrimination in grand jury selection undermines the structural integrity of the judicial process – rights of excluded jury members were violated, and D DID have standing because his conviction was implicated

Question 19

**For a judge to impose the death sentence in a jury trial, the [judge/jury or both] must find at least __ aggravating circumstance beyond a ___

Answer 19

jury, 1, reasonable doubt

Question 20

Any statement obtained as the result of a custodial interrogation may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights?

Answer 20

correct

Question 21

Is this admissible? -> derivative physical evidence (e.g., a gun) that has been obtained as a result of a voluntary, uncoerced confession that itself is inadmissible due to the failure by police to give Miranda warnings?

Answer 21

yes - physical evidence comes into if confession is legal other than no Miranda (too stringent otherwise)

Question 22

**Does 6th Amendment right to counsel attach at a photo array?

Answer 22

no because D need not be present – only pics, not physical identification

Question 23

**In felony-murder cases, the death penalty may not be imposed if D, acting as an accomplice, did not kill, attempt to kill, or intend to kill, unless…

Answer 23

the defendant significantly participated in the commission of the felony and acted with reckless indifference to human life

Question 24

after validly executed warrant in which police grabbed the items, a protective sweep is allowed only if…

Answer 24

they have reason to believe that others inside the home may pose a danger to them

Question 25

even if cops have probable cause, they still need what?

Answer 25

a warrant !

Question 26

does undercover cop need to Mirandize a SUSPECT? why / why not?

Answer 26

not required if the SUSPECT being questioned is not aware that the interrogator is a police officer

Question 27

interrogation refers not only to express questioning, but also to…

Answer 27

any words or actions that the police know or should know are likely to elicit an incriminating response.
BUT Miranda only refers to CUSTODIAL interrogations (so interrogation while person is in custody, like being in cop car + interrogation definition above)

Question 28

To justify a warrantless search of an automobile incident to arrest, cop must demonstrate either one of two things:

Answer 28

(i) that the arrestee is within reaching distance (so not just sitting in the driver’s seat) of the passenger compartment (eg passenger area) at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee, or
(ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.

Here, purse was on passenger seat, but D wasn’t w/in reaching distance of the passenger compartment of the car (was in driver’s seat), and it was not reasonable that evidence of the violation of a child support order would be found in the car.

Question 29

Does an illegal arrest (e.g., with warrant, but cops entered friend’s house w/o permission) prevent the subsequent prosecution of the person who is illegally arrested?

Answer 29

no

Question 30

Is an anticipatory warrant unconstitutional bc the items to be seized are not located on the premises to be searched at the time that the warrant is issued?

Answer 30

no. The probable cause requirement is satisfied where, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place

Question 31

Does a mandatory jury instruction (e.g., presume that person missing for 7 years is dead) in a criminal case on an element of the charged crime violate due process?

Answer 31

yes, can’t shift the burden of proof to the defendant on an element of the crime.

Question 32

If an out-of-court identification procedure is unnecessarily suggestive (cops tell witness, we’re pretty sure this guy is the robber, does he look like him to you?), which this one plainly was, must in-court testimony of the W be suppressed?

Answer 32

Yes, UNLESS the prosecution demonstrates that the in-court identification is reliable.

Question 33

A strip search by local public school personnel of a student must be based on __ __ that the search will produce evidence that the student is or has violated school rules.

Answer 33

reasonable suspicion

Question 34

**For double jeopardy purposes, jeopardy does not attach until A, B, or C

Answer 34

trial; when the jury is sworn in; or, in a bench trial, when the first witness is sworn in

Question 35

Where a jury acquits a defendant of an offense that is a lesser-included offense of another offense over which the jury deadlocks, does the jury determination that the defendant did not commit the lesser included offense preclude retrial on the greater offense?

Answer 35

yes: if jury says no larceny, but unsure about robbery, then no retrial on robbery because jury said no larceny

Question 36

Will a voluntary confession made after an unlawful arrest be automatically suppressed?

Answer 36

no, BUT the unlawfulness of the arrest may be considered when determining whether a confession was truly voluntary. If the confession is too closely tied to the illegal arrest, it may be suppressed.

Question 37

Is independent justification needed to search persons next to a D who are not named in a search warrant?

Answer 37

yes, mere proximity to a named person isn’t enough

Question 38

**Is derivative physical evidence obtained as a result of a non-purposeful failure by police to give Miranda warnings admissible?

Answer 38

yes, though confession isn’t

Question 39

D hired attorney, judge erroneously denied that attorney, so D hired Attorney #2, who ultimately provided good representation. Lost case. Reverse conviction?

Answer 39

yes, D’s entitled to qualified attorney of her choice, where that attorney is not provided by the state. Remedy of 6th Amendment violation = reverse conviction.

Question 40

does denial of the right to counsel at trial result in the automatic reversal of the defendant’s conviction, even if the defendant wasn’t prejudiced by the denial?

Answer 40

yes, for denial of ROC, D need not establish that the replacement counsel’s representation was inadequate to reverse her conviction

Question 41

**In determining whether an individual has intellectual disabilities, can a state impose a strict cutoff that precludes a finding of intellectual disability if an individual has an IQ of more than 70?

Answer 41

no, because this rule creates an unacceptable risk that a person with an intellectual disability will be executed

Question 42

Does the Eighth Amendment prohibit execution of an individual with intellectual disabilities and/or severe mental disorder?

Answer 42

yes

Question 43

**if an individual has been found mentally competent to stand trial, does that auto mean he can be executed?

Answer 43

no, that individual cannot be executed if he is found mentally incompetent to be executed

Question 44

after hung jury, could a prosector’s decision to retry the case several months later be considered a violation of a right to a speedy trial?

Answer 44

maybe

Question 45

**If a prosecutor’s delay to retry a case is without sufficient justification or has resulted in prejudice to the defendant, a violation of the defendant’s Speedy Trial Right mandates that…

Answer 45

the court dismiss the case with prejudice, which would prevent the retrial of the defendant on the theft charges

Question 46

does a state need to get a grand jury to convict someone for a felony?

Answer 46

no, only feds are required to use grand jury

Question 47

**A defendant was arrested and charged with robbery, but before he had met with his court-appointed attorney, police questioned him – has his 6th Amendment right to counsel attached?

Answer 47

yes, once charged = attached, so entitled to counsel even if you didn’t request

Question 48

if an individual in custody asserts the Fifth Amendment right to counsel, can he subsequently waive it before counsel arrives?

Answer 48

No. once an individual in custody asserts the Fifth Amendment right to counsel, no subsequent waiver of that right is valid in a police-initiated interrogation unless counsel is present.

Question 49

can D waive his Sixth Amendment right to counsel anytime after being charged?

Answer 49

yes, the Sixth Amendment right to counsel can be waived at any time if the waiver is voluntary, knowing, and intelligent (VIK = Victoria = wave)

Question 50

if you’re given the Miranda warning, then immediately confess, is that a waiver, meaning statement is admissible?

Answer 50

yes

Question 51

**While in a cop car, does this question trigger a custodial interrogation: “Are you sure you don’t want to cooperate and talk to us?”

Answer 51

yes, they’re in custody, and cops asked a question

Question 52

**Courts use a two-prong test to determine the admissibility of pre- or post- indictment lineup identifications.

Answer 52

To prevail, D must demonstrate that the procedure was impermissibly suggestive and that there was a substantial likelihood of misidentification.

Question 53

how long after a suspect has asserted his 5th Amendment right to counsel can police re-open interrogation?

Answer 53

if there’s a 14-day break in CUSTODY

once an individual in custody asserts 5A ROC, no subsequent waiver is valid in a police-initiated interrogation (unless counsel present)

Question 54

**5th Amendment vs 6th Amendment waiver requires

Answer 54

6 > 5; 6 requires 1 more (1 - I - Intelligent)

5: voluntary and knowing
6: voluntary, knowing, intelligent

Question 55

**WHEN can you use self-defense for another?

Answer 55

when that person would be allowed to use defense. helper must have reasonable basis for his belief that self-defense is justified (like hybrid subjective/objective)