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NY Bar 2014 > Crim Proc > Flashcards

Crim Proc Flashcards

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MBE flashcards
1
Q

4th amendment

A

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures,
shall not be violated, and no Warrants shall issue,
but upon probable cause, supported by Oath or affirmation,
and particularly describing the place to be searched, and the persons or things to be seized

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2
Q

FIRST ISSUE:

S&S governed by 4th? Qs

A

Executed by gov agent?
Area/item protected by 4th?
Physical intrusion or violation of reasonable expectation of privacy?
Individual has standing?

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3
Q

Gov agent includes

A

Private citizen at direction of police
Security guard deputized with power of arrest (campus cops)
Public school administrator

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4
Q

Area/item protected by 4th?

A

Persons
Houses (incl. “curtilage” - surrounding area of domestic use)
Papers
Effects

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5
Q

Unprotected items:

A 
"Knowing exposure to 3rd parties":
Paint scrapings from car
Bank account records
view from public airspace
Garbage
Voice
Odors
Handwriting
View across open fields
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6
Q

Reasonable expectation of privacy - test:

A

Actual subjective expectation
AND
Recognized by society as reasonable expectation

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7
Q

Who has standing?

A

Individual’s personal privacy rights invaded.
Overnight guest –> areas he is expected to access.
Use of 3rd party residence for biz - “personal”
Owns item - if reasonable expectation of privacy in AREA IN WHICH IT WAS SEIZED
Passenger in 3rd party’s car - NO,
NY - YES re weapons if possession attributed to him

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8
Q

SECOND ISSUE

When does warrant satisfy 4th?

A

Neutral and detached magistrate.
Probably cause and particularity [OR - MBE ONLY - police relied in good faith]
Properly executed

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9
Q

Probable cause that?

A

Fair probability that contraband or evidence of crime will be found in area searched.
Hearsay - OK
Anon tip - see mess below
Particularity - doesn’t need to mention name if indicative.

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10
Q

Anon tip = probably cause - MBE

A 
CIRCUMSTANTIAL EVIDENCE ENOUGH
with police corroboration
sufficient for magistrate to make "common sense practical" determination
that PC exists
based on totality of circumstances
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11
Q

Anon tip = probably cause - NY

A

ALSO NEED INFO ABOUT INFORMANT
must establish
“veracity and reliability” of informant
OR
informant’s “basis of knowledge” AND police observation confirms sufficient detail suggestive of criminal activity in question

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12
Q

Good faith by police enoughto substitute PC [MBE only] - when not applicable?

A

Not applicable when:

Affidavit or warrant terribly lacking, magistrate biased, reckless falsehoods

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13
Q

When is a warrant properly executed?

A

Compliance with terms and limits

Compliance with “Knock and announce” rule

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14
Q

When is “knock and announce” not needed?

A

Officer reasonably believes it would be futile / dangerous / inhibit investigation

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15
Q

THIRD ISSUE
Valid warrantless search - 8 types
[ESCAPIST]

A 
Exigent circs
Search incident to arrest
Consent
Automobile
Plain view
Inventory
Special needs
Terry stop and frisk
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16
Q
  1. Exigent circumstances
A

Evanescent evidence - disappears before warrant can be obtained
Hot pursuit - plain view evidence in home
Emergency aid - when entering premises due to emergency

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17
Q
  1. Search incident to arrest
A

Arrest lawful.
Search justified by officer safety and need to preserve evidence.
Must be contemporaneous with arrest.

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18
Q

Search incident to arrest - wingspan?

A

includes containers within immediate control, regardless of nature of offense.
NY: Can access containers only if he is suspected to be armed.

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19
Q

Search incident to arrest - car?

A

Interior cabin including closed containers - YES.
Trunk - NO.
After arrestee is SECURED - search car only with reason to believe it contains evidence RELEVANT to arrest.
NY - once arrestee is OUT OF CAR, can’t search containers in car for anything!

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20
Q
  1. Consent
A

Must be voluntary and intelligent
“Reasonable officer believes permission is granted”
Apparent authority - OK if officer reasonably believed he had actual authority

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21
Q

Consent in shared premises?

A

Any resident can consent to common areas

But objecting tenant prevails in “shared dominion/control” areas

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22
Q
  1. Automobile
A

Lesser expectation of privacy
PC that contraband/evidence is there
Containers big enough to contain contraband/evidence
TIMING for PC - can arise after being pulled over but before initiating search

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23
Q
  1. Plain view
A

Lawful access to place where viewed
Lawful access to item (don’t need to open bag)
Criminality of item immediately apparent

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24
Q
  1. Inventory search
A

When:
Arrestee - when booked into jail
Vehicle - when impounded
Requires:
Regulations which are reasonable in scope
Search complies with regs
Search conducted in good faith (motivated solely to safeguard possessions or ensure officer safety)

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25
Q
  1. Special needs
A

Needs of cops, gov employees, school officials
BEYOND general interest in law enforcement
Eg. Random drug testing For employees in sensitive possessions + public schoolchildren in extracuric activities
As parole condition
School search (reasonable, not excessively intrusive re age, sex, infraction)
Border searches (including citizens)
NOT when primary purpose is gathering criminal evidence!

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26
Q
  1. “Terry” stop and frisk
A

Stop: Brief detention/seizure to investigate conduct
Frisk: Pat down for weapons
[No PC needed for either!]

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27
Q

Stop - grounds

A

Reasonable and articulable facts (less than PC) (objective)
that inform officer’s belief
that criminal activity is present

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28
Q

Frisk - grounds

A

Specific and articulable facts (less than PC) (objective)

that suggest suspect is armed and dangerous

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29
Q

When is stop considered “stop” for 4th?

A

Reasonable person does not feel free to leave.

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30
Q

Is pursuit = seizure?

A

MBE: Only if he submits or is physically restrained.
NY: Yes. (Meaning that once there is pursuit, there is no exception for not having warrant)

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31
Q

Seizable items during frisk

A

MBE: Weapons and contraband recognizable without manipulation
NY: Only weapons.

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32
Q

At-home arrest - where can officers search?

A

Can search for “criminal confederates” in immediately adjoining area.
For more remote areas - when facts allow “reasonably prudent officer” to conclude that there are individuals there.

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33
Q

Roadblocks - cars

A

Special law enforcement needs –> can stop car without individualized suspicion.
Conditions:
- neutral, articulable standard to choose cars (“every car”)
- for purpose related to cars (drunk driving), not ordinary wrongdoing (looking for drugs)

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34
Q

“Pretextual car stop”

A

Can stop car for traffic violation

even if ulterior motive is to investigate crime which doesn’t justify stop

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35
Q

FOURTH ISSUE

Use of unconstitutional evidence

A

Federal exclusionary rule - Unconstitutionally obtained evidence is inadmissible at trial, including fruit of poisonous tree.
Limits on rule - below:

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36
Q

Limits on rule

A

May be introduced in cross-examination
Knock and announce violation with subsequent evidence found
Police error - inadmissible only when deliberate, reckless or grossly negligent.
Reasonable mistake by officer OK

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37
Q

Limits on “fruit of poisonous tree rule”

A

These are admissible:
Derived from Miranda violation
Broken causal link between illegality and evidence:
- from source independent of original illegality
- inevitable discovery through lawful means
- alleviation by passage of time, intervening events, that purge the taint and restore free will.

38
Q

Wiretap warrant - requirements

A

Name suspects
Strictly limited time period
PC that specific crime committed
Describe particular conversations to be heard

39
Q

Unreliable ear doctrine

A

No 4th defense if you speak to someone who wears a wire or consented to wiretap

40
Q

ARREST - when is warrant not required

A

Public place - PC of felony/misdemeanor in cop’s presence (NY - not only in his presence!)
Home - only emergency, otherwise need arrest warrant
3rd party’s home - need arrest warrant and search warrant

41
Q

A few people together in a car

A

If evidence suggests “common enterprise” between driver and passengers, arrest them all.
“Reasonable inference of shared dominion and control over contraband”

42
Q

Confessions - constitutional rights?

A 
14th - Due Process
6th - Right to counsel
5th - Miranda
NY - Indelible right to counsel
ON EXAM - go through each one and apply.
43
Q

NY - how to guage whether confession is voluntary?

A

Length of interrogation and custody are factors.

44
Q

6th - right to counsel

A

Attaches only when formally charged, not on arrest. [See NY distinction below]

45
Q

Right to counsel - which crimes

A

Felony - always.

Misdemeanor - only if actually sentenced to imprisonment (depends on sentence!)

46
Q

Confession - When is 6th right to counsel violated?

A

Deliberately elicited confession,

did not “knowingly, intelligently, voluntarily” waive right to counsel.

47
Q

NY - indelible right to counsel

A

Any significant judicial activity, incl. before filing charges.
If represented on charge for which taken for questioning, cannot question on any other charge without counsel.
Waive - only in presence of counsel (Released, later arrested on unrelated charge - can waive without counsel)

48
Q

Introduction of co-defendant’s confession - when permitted?

A

Portion’s relating to D can be eliminated.
Confessing D takes stand and cross-examined.
Used to rebut claim that confession obtained coercively.

49
Q

Does “harmless” error help with right to counsel?

A

No.

50
Q

What’s the point of Miranda

A

For admission or confession to be admissible under the 5th, person must be informed of Miranda rights.
BUT - fruits of evidence obtained in violation of Miranda are admissible.

51
Q

When is Miranda required?

A

Custody - objectively characterized by police domination and coercion, significant limitation on freedom of action.
Interrogation - any conduct which police knew or should have known would elicit incriminating response.
Spontaneous blurted out –> admissible without Miranda.

52
Q

Does failure to give Miranda constitute violation of 6th right to counsel?

A

No, just the 5th re self-incrimination.

53
Q

Fake cellmate - Miranda?

A

No. No coercion, no 6th since prior to indictment.

54
Q

When is Miranda not required?

A

Public safety - immediate concern.

55
Q

How are Miranda rights waived?

A

Reasonably communicate rights, obtain valid waiver.

56
Q

Valid Miranda rights waiver

A
  1. Knowing and intelligent - understands nature of rights and consequences of abandoning.
  2. Voluntary - no coercion
57
Q

NY - if police use deception and concealment to keep parents from kid

A

Waiver invalid

58
Q

Right to silence invoked - how long?

A

Significant period.

Later question OK on unrelated crime.

59
Q

Right to counsel invoked - how long?

A

14 days after release from custody.

Can’t ask about other crimes if right invoked (unlike right to remain silent)

60
Q

Statement through violation, then waiver, then statement. Use 2nd?

A

Only if 1st not obtained by inherently coercive measures.

61
Q

Vacate guilty verdict due to violation?

A

Unless prosecution can prove:
Error was harmless
Would have been conviceted anyway
Beyond reasonable doubt

62
Q

Self-incrimination - refuse to produce documents?

A

Can’t refuse.

Protection is only testimonial. Documents already exist.

63
Q

Pretrial ID - 2 challenges

A

Denial of right to counsel - 6th! (Not 5th like Miranda)

Due process - 14th

64
Q

Pretrial ID right to counsel - when?

A

Line-up, show-up – AFTER FORMAL CHARGING

Photo array – NO RIGHT, no personal confrontation with witness

65
Q

Line-up before charging in NY

A

Right to counsel (even though before charging), if:

  • police are aware he has counsel (or should have been aware) AND
  • and requested that counsel be present
66
Q

Pretrial ID due process violation - when?

A

So unnecessarily suggestive that it
creates very substantial likelihood
of irreperable misidentification.

67
Q

Remedy for unconstitutional ID

A 
Exclusion of IN-COURT identification! 
UNLESS proven that ID is based on an independent source, eg.
- seeing him at time of crim
- certainty
- specificity of description to police
68
Q

Do states need to use grand juries?

A

No.

But NY uses them. D can waive indictment by grand jury if crime not punishable by death or life imprisonment.

69
Q

Special rules in grand jury (MBE)

A

No right to counsel
May consider excluded evidence
D must appear but can refuse to answer incriminating Q’s

70
Q

Indictment needs to establish:

A

All elements of offense.

REASONABLE CAUSE to believe accused committed.

71
Q

Only way to quash a grand jury indictment

A

Exclusion of minorities from jury

72
Q

Prosecutorial disclosures

A

Prosecution must disclose exculpatory evidence.
Failure violates due process.
Sufficient to reverse if: evidence is favorable + prejudice has resulted

73
Q

Pretrial detention - PC!

Need hearing to determine. Exceptions:

A

Grand jury indicted.

Magistrate issued arrest warrant.

74
Q

Trial rights

A

CONVISER

75
Q

Number of jurors

A

Minimum - 6 need unanimous
In NY - 12 - must be unanimous.
In majority of states - 12 - not unanimous - and D can agree to 11.

76
Q

Ineffective counsel defense

A

Deficiency - not acting as counsel.
Prejudice - outcome would have been different but for deficiency.
[applied very strictly!]

77
Q

Guilty plea - must establish:

A

Voluntary and intelligent.

Conduct “plea-taking colloquy” (max. penalty, right not to plead guilty, etc)

78
Q

Withdrawal of guilty plea after sentencing?

A

If:

  • plea involuntary
  • jurisdictional defect
  • ineffective assistance of counsel
  • prosecutor does not fulfill bargain
79
Q

Automatic death penalty?

A

No, violates the 8th.

Jury must consider all mitigating evidence before ordering death.

80
Q

Double jeopardy - when attaches?

A

Jury sworn in.
Bench trial - 1st witness called.
Guilty plea - unconditional acceptance.

81
Q

Double jeopardy from civil proceedings?

A

No, can still prosecute.

82
Q

Double jeopardy - when is it the “same offense”?

A

MBE: Not same if each offense contains 1+ element that the other offense does not.
NY - harsher “Transaction Test”

83
Q

NY “Transaction Test” for same offense in double jeopardy

A

Substatially different elements /
Each offense contains element not in other AND prevent different harms /
one offense for possession, the other for use /
each offense caused harm to different victim /
NY RICO + Federal RICO /
Federal tax evasion / NY tax evasion

84
Q

Double jeopardy - when is it the “same sovereign”?

A

State and federal are different (can bring different charges for same act)!
Different states are different!
State and municipality in state - same.

85
Q

When does double jeopardy not apply?

A

Hung jury
Mistrial for manifest necessity
Reversed on appeal, except for lack of evidence.
Breach of plea agreement by D
Prosecution can appeal acquittal when not on merits

86
Q

Privilege against compelled testimony -“taking the 5th”

Applies in every proceeding when individual testifies under oath, except:

A

NY - can’t take 5th in grand jury.
If already answered question in previous sworn testimony (didn’t assert at 1st opportunity!)
Use of bodies - can’t refuse to give blood sample. 5th is only for verbal words! Testimonial privilege.

87
Q

Can prosecution comment negatively on D’s decision not to testify, or to take the 5th?

A

No!

88
Q

Grant of immunity - what is prevented?

A

MBE: Can convict on same transaction in different trial using different evidence.
NY: “Transactional immunity” - completely immune for that transaction!
[But can always convict on basis of evidence collected before grant of immunity.]

89
Q

NY - Transactional immunity automtic for grand jury witness

A

Unless already pleaded guilty.

90
Q

Took stand - can still take 5th?

A

No - waived! Must answer cross-examination too!

91
Q

Statute of limitations runs out - can still take 5th?

A

No. No danger anymore.

NY Bar 2014 (18 decks)

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