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Crim Pro > Crim Pro > Flashcards

Crim Pro Flashcards

1
Q

What happens in GA if there is good faith reliance on a defective search warrant?

A

The evidence is EXCLUDED. Good faith is not relevant.

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2
Q

Making an arrest without a warrant in GA

A
  1. if the offense was committed in his presence or within his immediate knowledge
  2. the offender is trying to escape
  3. the officer has probably cause to believe that an act of family violence has been committed
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3
Q

When does a search warrant become stale in GA?

A

After 10 days of issuance. Must be executed within 10 days

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4
Q

Executing a search warrant: can you search the people?

A

Police can reasonably detain or search any person to protect himself or to prevent the disposal or concealing of things described in the search warrant.

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5
Q

What is the hearing called when you are arrested without a warrant?

A

Preliminary hearing to determine whether there is probably cause to detain –> COMMITMENT HEARING

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6
Q

What is the maximum time after arrest before a person arrested pursuant to a warrant can be brought before a judge? (GA)

A

72 hours after the arrest

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7
Q

Grand juries… when do you use them? (GA)

A

When bail has been refused, D is entitled to have the charge heard by a grand jury within 90 days.

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8
Q

Evidence that the prosecutor must disclose w/in 10 days of trial (GA)

A
  1. D’s statements during interrogation
  2. statements of D’s coconspirators
  3. D’s own criminal record
  4. tangible evidence and results of any physical or mental exams or scientific tests
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9
Q

What must D give prosecution within 5 days of trial? (GA)

A
  1. right to inspect and copy documents

2. results of tests and exams

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10
Q

New evidence discovered (GA)

A

Party must promptly notify the other side of the existence of the new evidence and make it available

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11
Q

What if D pleas mental incompetency? (GA)

A

Judge will hold a bench trial on the issue unless the accused demands a special jury trial.

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12
Q

What if a victim under 16 years old is testifying about a sex offense? (GA)

A

Clear the courtroom of everyone except the parties, immediate families, attorneys, secretaries, jurors, and reporters.

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13
Q

What if the victim is 10 years old or younger and is a victim of a sexual crime? (GA)

A

Can testify by closed-circuit TV

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14
Q

Objecting to a jury charge (GA)

A

Must object before the jury retires to deliberate. Failure to object precludes appellate rule unless their is plain error.

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15
Q

Confession alone - is sufficient in GA for conviction?

A

No. There must be corroboration of the confession.

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16
Q

When are private citizens considered gov’t agents?

A

When they are acting AT THE DIRECTION of the police.

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17
Q

What does the Fourth Amendment protect? (Which four areas/items?)

A
  1. persons
  2. houses
  3. papers
  4. affects
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18
Q

Curtilage

A

The area adjacent to the home to which the activity of the home life extends.

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19
Q

What items do not merit ANY 4th Amendment protection?

A 
Bank records
Public airspace
Odors
Voices
Garbage
The style of your handwriting 
Open fields
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20
Q

Two ways to implicate 4th Amendment

A
  1. physically intrude a protected area (trespass - GPS cases)
  2. violate a person’s reasonable expectation of privacy
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21
Q

Who has standing to challenge a search?

A

To have standing, an individual’s personal privacy rights must be invaded.

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22
Q

What happens if you are a passenger in a car, can you challenge the search?

A

Can’t challenge searches of the car, no reasonable expectation of privacy as a passenger.

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23
Q

How do you determine whether a warrant is valid? (4 ways)

A
  1. neutral and detached magistrate?
  2. supported by probable cause?
  3. if no PC, was there good faith reliance (only MBE)
  4. was the warrant properly executed?
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24
Q

Probable cause to get a warrant

A

Requires proof of a fair probability that contraband or evidence will be found in the place to be searched

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25
Q

How should a magistrate base his decision to issue?

A

If there is enough information for magistrate to make a common-sense practical determination that PC exists under the totality.

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26
Q

What must be described in warrant (2 things)

A
  1. place to be searched

2. items to be seized

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27
Q

Properly executed warrant requirements

A
  1. were the terms of the warrant complied with? (must stay within scope)
  2. did the officers comply with the knock and announce rule?
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28
Q

Knock and announce (general rule)

A

Police must announce presence and purpose before forcibly entering

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29
Q

Exceptions to having to knock and announce

A

It would be:
futile
dangerous
would inhibit the investigation

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30
Q

Exigent circumstances (exception to warrant requirement)

A
  1. evanescent evidence (evidence that would disappear if you had to go get a warrant)
  2. hot pursuit
  3. emergency aid: can enter if police have an objectively reasonable basis for believing that a person inside is in need of emergency aid or to prevent injury
31
Q

SITA search

A
  1. arrest must be lawful
  2. must be contemporaneous
  3. scope: wingspan (whatever is w/in immediate control of arrestee)
32
Q

SITA search of car

A

Search the passenger cabin, including closed containers but NOT THE TRUNK

Allowed when:

  1. arrestee is unsecured OR
  2. when police have reason to believe that the car contains evidence of the crime arrested for
33
Q

Consent- apparent authority

A

Consent is valid if the officer reasonably believed the consenting party had “actual” authority

34
Q

What if 2 tenants are both present and one objects to a consensual search?

A

Police CANNOT search the common areas.

35
Q

Automobile exception to warrant requirement

A

Police need probable cause to believe there is contraband or evidence in the vehicle.

Can search the whole vehicle and open any container that may reasonable contain what they are looking for.

36
Q

Plain View Requirements

A
  1. lawful access to the place where you are viewing the item
  2. lawful access to the item itself to seize it
  3. criminality of the item must be immediately apparent
37
Q

Inventory searches (exception to warrant)

A

Regulations of the inventory search are reasonable in scope
The search complies with the regulations
Search is conducted in GOOD FAITH

38
Q

Special needs searches

A

Drug tests of RR employees, custom agents, students in extracurricular activities, warrantless searches of paroles

39
Q

Search of student’s affects

A

Must be reasonable at inception

and NOT excessively intrusive

40
Q

When is a person seized? Things to look for

A
  1. did officer brandish his weapon?
  2. officer’s tone and demeanor?
  3. was individual told he had the right to refuse consent?
41
Q

What if a person is fleeing? Is he seized?

A

No. Only seized when he submits by stopping or is physically restrained.

42
Q

What if you are a passenger in a car and it is illegally seized. Can you challenge the stop?

A

Yes, b/c passengers are seized too. However, you wouldn’t be able to challenge a subsequent search b/c no reasonable expectation of privacy as a passenger.

43
Q

What do you need to conduct a Terry stop?

A

reasonable suspicion of criminal activity

44
Q

What do you need to conduct a Terry frisk?

A

Reasonable suspicion that the person is armed and dangerous

45
Q

Protective sweeps of house - adjacent rooms

A

No probable cause or reasonable suspicion needed

46
Q

Sweep of the rest of the house

A

Must have facts to allow a reasonably prudent officer to conclude that an individual who may threaten officer safety is present

47
Q

Violation of knock and announce - is evidence suppressed?

A

No. the remedy is under civil law

48
Q

Evidence obtained in violation of the 4th Amendment - is it suppressed

A

Can’t be used in case in chief but can be used to impeach

49
Q

When can you admit “tainted evidence” in the case in chief? (What nullifies the link?)

A
  1. independent source
  2. inevitable discovery
  3. attenuation
50
Q

how do you get a valid wiretap warrant?

A
  1. Name the suspected persons that you want to overhear
  2. Name a strict time period
  3. Probable cause that a specific crime has been committed
  4. describe which conversations can be overheard
51
Q

When can a custodial arrest take place?

A

All offenses, even if punishable only be a fine. remedy is in state law

52
Q

When can a police officer arrest someone in public without a warrant (MBE)

A
  1. felony: if they have probable cause to believe a felony has been committed
  2. any misdemeanor committed in their presence
53
Q

What if all people in a car appear guilty of a common unlawful enterprise?

A

Police can arrest any and ALL b/c of theory of shared dominion and control of contraband.

54
Q

Keeping out a confession b/c of 14th A

A

Due process - involuntary b/c police coercion overcomes D’s will

55
Q

6th A right to counsel, when does it apply

A

When formally charged

Attaches at all critical stages

56
Q

How do you waive your Miranda rights?

A

Waiver must be:
knowing and intelligent
voluntary

57
Q

Who bears burden of proving valid waiver of Miranda rights?

A

Prosecution, by a preponderance

58
Q

How do you invoke your right to remain silent? What happens if you properly invoke?

A

Must unambiguously invoke right to remain silent.

If you do, police must scrupulously honor the invocation. Police must wait a significant time before questioning.

59
Q

How do you invoke your right to 5th A counsel?

A

Request for counsel must be sufficiently clear.

Once invoked, ALL questioning must cease.

60
Q

When does invocation of 5th A right to counsel expire?

A

14 days after suspect is released from custody

61
Q

What if statements are obtained in violation of Miranda?

A

Can be used to impeach

62
Q

What if physical evidence is obtained from statements made in violation of Miranda?

A

You can use the physical evidence.

63
Q

What if physical evidence was improperly admitted or a statement made in violation of 5th A is improperly admitted?

A

Harmless error rule

64
Q

Is there a 6th Amendment right to counsel for photo arrays?

A

NO

65
Q

6th Amendment right to counsel for what forms of ID once D is charged?

A

Show ups and line ups

66
Q

D’s first appearance in court

A

Must take place w/in 72 hours after arrest (in GA)
advises him of his rights
set bail
appoint counsel (if necessary)

67
Q

Jury trials in GA - number of jurors and unanimity requirement?

A

6 jurors for misdemeanors
12 for felonies

All criminal verdicts must be unanimous

68
Q

Constitutional requirement - number of jurors

A

6 - if 6 person jury is used it must be unanimous, but 12 person need not be

69
Q

Ineffective assistance of counsel

A
  1. deficiency on the part of the lawyer

2. prejudice: but for deficiency there would have been a different result

70
Q

Valid guilty pleas

A

Must be voluntary and intelligent

71
Q

What are the exceptions to the double jeopardy rule?

A
  1. hung trial
  2. mistrial for manifest necessity
  3. successful appeal (unless there is insufficiency of the evidence)
  4. breach of the plea agreement by D
72
Q

If you plead guilty, do you give up your right to bring a civil action for unlawful conduct by police?

A

No. you can still bring that civil action.

73
Q

5th Amendment privilege against self-incrimination protects against?

A

Compelled testimony

74
Q

What if prosecutors want to remove a bullet from D’s back to link him to the crime? What constitutional provisions might be implicated?

A
  • 4th Amendment: protection against unreasonable searches and seizures – warrant requirement
  • 5th Amendment: Due Process protects methods to obtain evidence that offend the sense of justice (unfair taints, involuntariness, etc)
  • 5th Amendment: right against compelled self-incrimination (usually only applies to testimonial evidence)

Crim Pro (1 decks)

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