Crim Pro - Non - S&S Topics

Question 1

When do you need a arrest warrant?

Answer 1

Do not need a warrant to arrest someone ins a public place!

Felons - Warrantless arrest when they have reason to believe that the arrestee has committed a felony.

Misdemeanors - when committed in their presence.

To arrest someone in the home of a 3P - need a search and arrest warrant.

Question 2

What re the three federal constitutional challenges that can be brought to exclude a confession?

Answer 2

14th Amendment - DPC

6th Amendment - Right to Counsel

5th Amendment - Miranda Doctrine

Question 3

What is the standard for excluding a confession under the DPC?

Answer 3

INVOLUNTARINESS, which means that the confession is the product of police coercion that overbears the suspect’s will.

Question 4

Determining voluntariness of confession in MA

Answer 4

Initially determined by judge. If found involuntary - it’s out.

If found voluntary, it goes to the jury who makes an independent assessment.

Question 5

When does the sixth amendment right to attorney attach and apply?

Answer 5

Attaches when D is formally charged not at arrest.

Applies at all critical stages of prosecution that take place AFTER filing for formal charges.

Question 6

When are incriminating statement obtained from D by law enforcement excluded under the Sixth Amendment?

Answer 6

When for a charge offense, law enforcement deliberately illicted those statement and D did not knowingly, intelligently, and voluntarily waive his right to have his attorney present.

Question 7

When are Miranda warnings necessary?

Answer 7

Two core requirements: when a suspect is in

(i) Custody AND
(ii) Being Interrogated

Question 8

When is a suspect in custody for Miranda purposes?

Answer 8

Two part Test:

(1) Would a reasonable person have felt that she was not at liberty to end the interrogation and leave?
(2) Whether the environment presents the same inherently coercive pressures as the station house questioning in miranda?

**A juvenile suspect’s age is relevant for miranda inquiry

Question 9

What is an interrogation for Miranda purposes?

Answer 9

Any conduct the police knew or should have known was likely to elicit an incriminating response.

Question 10

What is the Public Safety Exception for Miranda Rights?

Answer 10

If custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible.

Question 11

When are incriminating statement by a suspect admissible?

Answer 11

Unless the public safety exception applies, only admissible if:

(1) Offiicer reasonably conveys to the suspect his or her core Miranda rights; AND
(2) obtains a valid waiver of a suspect’s miranda rights to silence and counsel.

Question 12

What is required for a valid Miranda waiver?

Answer 12

(1) Must be Knowing and Intelligent
(2) Must be voluntary (free from coercion)

Waiver does not need to express, can be implied based on conduct.

Waives right to silence if make an uncoerced statement to police.

State bears a burden of proof of waiver by a preponderance of the evidence.

Question 13

How does a suspect invoke the right to remain silence? [And MA distinction]

Answer 13

MBE - Suspect must unambiguously invoke their right to remain silence.

MA - Unambiguous invocation is not required.

If invoked, police must “scrupulously honor” and cannot reinitiating questioning for a significant period of time and must obtain a valid Miranda waiver.

Question 14

How does a suspect invoke the right to counsel?

Answer 14

Request must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel.

Once a counsel lawyers up - all interrogation must cease.

5th amendment miranda rights are not offense specific and extend to all topics.

Question 15

When does a request for counsel expire?

Answer 15

14 days after a suspect is release from custody or they receive a valid Miranda waiver.

Question 16

Does fruit of the poisoness tree doctrine apply to incriminating statement obtained in violation of Miranda?

Answer 16

No to physical fruits if the statement is obtained voluntary.

Question 17

If a statement is admissible due a Miranda violation, are subsequent incriminating statement ever admissible?

Answer 17

Yes, if the initial non-mirandized statement was not obtain through the use of inherently coercive police tactics of methods offensive ot due process.

Question 18

MA Distinction on subsequent incriminating statements after a Miranda violation:

Answer 18

Statements are presumptively tainted:

Prosecution can overcome the presumption by EITHER:

(a) showing a break in the stream of even that sufficiently insulated the post-Miranda statement from the earlier, tainted one; OR
(b) that the illegally obtained statement did not incriminate the defendant.

Question 19

What is the harmless error rule?

Answer 19

If testimonial evidence should have been excluded as violation of Miranda, a jury verdict will stand if the gov’t can prove, beyond a reasonable doubt, that the error was harmless because the D would have been convicted w/o the tainted evidence.

Question 20

What are the three types of pretrial identifications?

Answer 20

(1) Line ups
(2) Show Ups - one on one confrontation between W and the suspect.
(3) Photo Arrays

Question 21

When does the 5th and/or 6th amendment require right to counsel for pretrial identifications?

Answer 21

5th Amendment does not require right to counsel under the Miranda doctrine for pretrial identification

6th Amendment: Right of counsel for Line ups and show up that take place AFTER formal charging, however not sixth amendment right to counsel for photo arrays.

Question 22

When does a pretrial identification violate the due process clause?

Answer 22

Violates the DPC when it so unnecessarily suggestive that it creates a substantial likelihood of misidentification.

In making this determination, courts must weight the reliability of a suggestive identification against is corrupting effect.

Question 23

What is the MA standard for unnecessarily suggestive pretrial identification procedure?

Answer 23

Automatically excluded.

Subsequent identifications are also excluded unless the prosecution can show that a subsequent identification was untainted by the prior identification.

Question 24

What is the remedial consideration for pretrial identification?

Answer 24

Exclusion of a witness’ in court identification

However, in-court identification will still be allowed if the P can prove that it is based on observations of the suspect other than the unconstitutional show-up, line-up, or photo array.

Question 25

In Massachusetts, when is a grand jury indictment or presentment required?

Answer 25

For a valid felony prosecution in superior court.

Question 26

When is a hearing to determine probable cuase for an arrest unnecessary to justify pretrial detention?

Answer 26

(1) The grand jury has issued an indictment; or

(2) a magistrate has issued an arrest warrant.

Question 27

In MA, for a warrantless arrest, when must a judicial determination of probable cause be made?

Answer 27

Within 24 hours absent extraordinary circumstances.

Question 28

What must a magistrate do a defendant’s first court appearance?

Answer 28

(1) Advise him of his right
(2) Set bail;
(3) Appoint counsel if necessary

Question 29

What is the Massachusetts “Safe Harbor” for questioning arrestee?

Answer 29

During the first six hours after an arrest, police may question an arrestee. After this period, police interrogation is unlawful and incriminating statement inadmissible unless the arrestee has been arraigned or waived his right to be arraigned without unreasonable delay.

Question 30

What does it mean for a judge to be unbiased?

Answer 30

No financial stake in outcome of the case;

No actual malice towards the defendant.

Question 31

What is the two proving ineffective assistance of counsel?

Answer 31

(1) Deficiency requirement: Counsel’s performance fell below an objective standard of reasonableness meaning he made errors so serious that he was not functioning as counsel; AND
(2) “Prejudice Requirement: “But for” the deficiency, the outcome of the trial would have been different.

Basically unless there is a colorable argument that D is not guilty. D will be denied ineffective assistance of counsel.

Question 32

What is the MA standard for ineffective assistance of counsel?

Answer 32

Requires proof of performance falling measurably below that of an ordinary attorney that either deprived the D of a substantial ground of defense or otherwise materially affected the outcome of the trial.

Question 33

What must established for a valid guilty please?

Answer 33

That the plea was given voluntarily and intelligently

To meet this standard just must address the following on the record:

(i) the nature of the charges
(ii) the consequence of the plea (waiver of right to plead not guilty/waiver of the right to trial).

Question 34

When may a D withdraw a guilty please after sentencing?

Answer 34

(1) the plea is involuntary
(2) jurisdictional defect
3) D prevails on claim of ineffective assitance of counsel;
(4) Prosecutor fails to fulfill his o her part of the bargain.

Question 35

What is the general rule for the “Same offense” requirement of the double jeopardy standard?

Answer 35

Two offenses are not the “same offense” for purposes of double jeopardy clause if each contain an element the other does not.

Question 36

What are the four exceptions to the double jeopardy rule that permit retrial?

Answer 36

(1) A hung jury
(2) A mistrial for manifest necessity
(3) A successful appeal, unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial; or
(4) a breach of the please agreement by the defendant.

Question 37

What are the three ways to eliminate the 5th Amendment privilege against self-incrimination?

Answer 37

(1) Grant of Immunity

MBE - “Use and derivative use” immunity - can’t use the testimony or anything derived from the testimony.

MA - Uses broader “transactional immunity - any transaction you testify about in your immunized testimony.

(2) Taking the stand
(3) Statute of Limitations