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crim procedure Flashcards

1
Q

what constitutes a seizure of the person

A
  1. under the totality of the circumstance
  2. reasonable person would not feel free to decline officer’s request and terminate encounter
  3. must be a physical application of force or submission to a show of force
  4. arrest
    -must be based on probable cause
    -warrant not required for public arrest
    -warrant required to arrest person in own
    home
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2
Q

investigatory detentions (terry stops)

A
  1. may be made on reasonable articulate suspicion
  2. reasonable suspicion determined by totality of the circumstances
  3. informants tips must be accompanied by indicia of reliability
  4. police must act in diligent and reasonable manner in confirming or dispeling their suspicion (cannot take too long)
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3
Q

automobile stops

A
  1. generally must have at least reasonable suspicion that a law has been violated
  2. exception - special law enforcement needs can justify suspicionless roadblocks
    -cars must be stopped on basis of a
    neutral articulable standard
    -must serve purpose closely related to a
    particular problem pertaining to
    automobiles and their mobility
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4
Q

was there an improper search or seizure of property two questions to ask

A
  1. was there government conduct
    • must be gov acting under 4th amend ex:police and their agents
  2. does defendant have standing
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5
Q

does defendant have standing to improper search/search of property

A
  1. may complain about interference with own reasonable expectation of privacy or physical intrusion into own constitutionally protected area
  2. determined under totality of circumstances
  3. premises - person has a reasonable expectation of privacy in:
    • places owned by the person
    • person’s home
    • place in which person is at least an overnight guest
    • no reasonable expectation of privacy in things held out to the public (ex: sound of voice/smell of luggage)
    • reasonable expectation of privacy in home extends to curtilage
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6
Q

warrant requirement to search

A
  1. issued by neutral and detached magistrate
  2. based on probable cause to believe that seizable evidence will be found in place to be searched
  3. describes with particularity the place to be searched and items to be seized
  4. invalid if based on a material false statement that was intentionally or recklessly included
  5. must generally knock and announce
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7
Q

exceptions to warrant requirement

A
  1. search incident to lawful arrest
  2. automobile exception
  3. plain view
  4. consent
  5. stop and frisk
  6. hot pursuit of a fleeing felon
  7. evidence likely to disappear before warrant can be obtained
  8. emergency aid - threats to health/public safety
  9. public schools by school official
  10. mandatory drug testing
  11. border searches
  12. inventory searches
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8
Q

warrantless automobile exception

A
  1. need probable cause to believe vehicle contains contraband or fruits, instrumentalities, or evidence of a crime
  2. may search anywhere in/on car that is subject of search may be found
  3. contemporaneousness not required
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9
Q

warrantless plain view exception

A
  1. legitimately on premises
  2. discover evidence
  3. in plain view
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10
Q

warrantless consent exception

A
  1. if suspect present may overrule consent

2. parent usually has authority to consent to search of child’s room if parent has access

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11
Q

warrantless stop and frisk exception

A
  1. during a valid terry stop
  2. police have reasonable belief that detainee is armed and dangerous
  3. may pat down outer clothing for weapons
  4. may seize anything that by plain feel is incriminating
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12
Q

warrantless drug testing exception

A
  1. high school students in extracurriculars

2. gov employees with access to drugs

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13
Q

was due process violated - involuntary confession

A
  1. judged by a totality of the circumstances
  2. gov compulsion makes confession invol
  3. harmless error test applies if invol confession erroneously admitted into evidence
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14
Q

was 6th amend right to counsel violated

A
  1. applies at all critical stages of the prosecution
  2. attaches when adversary judicial proceedings are begun
  3. offense specific - pertains to only one charge and defendant must ask again if later charged with separate, unrelated crime
  4. waivable - must be knowing and voluntary
  5. remedy = if defendant was denied right at trial = automatic reversal (harmless error applies to nontrial proceedings)
  6. statement made in violation of 6th may not be used to prove guilt but may still be used for impeachment
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15
Q

miranda warnings

A
  1. right to remain silent
  2. anything that is said may be used in court
  3. right to an attorney
  4. of cannot afford one will appointed
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16
Q

custodial requirement for miranda warnings

A
  1. defendant must know interrogation is by police
  2. custody = would reasonable person under the circumstances feel free to terminate interrogation and leave (obj test)
  3. interrogation - any police words or conduct designed to elicit an incriminating response
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17
Q

waiver to right to remain silent

A
  • right must be explicitly invoked
    1. waiver must be knowingly and voluntary
    2. judge under totality of circumstances test
    3. if warnings given and defendant talked, valid waiver generally found
    4. if right claimed, request must be honored
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18
Q

waiver to right of counsel

A
  • right must be explicitly invoked
    1. all questioning must cease
    2. defendant may voluntarily reinitiate questioning
    3. request for counsel must be unambiguous
    4. duration of probation against questions - 14 days after defendant returns to normal life
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19
Q

effect of violation of miranda warnings

A
  1. evidence inadmissible at trial
  2. statements may still be used to impeach defendant’s testimony
  3. defendant’s silence after receiving warning cannot be brought up
  4. harmless error test applies
  5. public safety exception - responses to questioning without miranda may be admissible if questioning was reasonably prompted by a concern for public safety
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20
Q

pretrial identifications

A
  1. 6th amend right to counsel applies at any post charge lineup or showup (not photo id)
  2. due process standard = unnecessarily suggestive identification procedures that give rise to a likelihood of misidentification violate due process
  3. improper identifications will be excluded from trial
  4. if out of court identification excluded, in court identification allowed if from a source independent of the excluded identification
21
Q

exclusionary rule

A

evidence obtained in violation of defendants 4th, 5th, or 6th rights generally will be excluded to deter gov violation of constitutional rights
-harmless error test applies to violations

22
Q

fruit of poisonous tree doctrine*

A
  1. all evidence derived from excluded evidence will also be excluded
  2. balancing test - no exclusion if the deterrent effect on police misconduct is outweighed by the costs of excluding probative evidence
23
Q

exceptions to fruit of poisonous tree doctrine

A
  1. independent course
  2. attenuation - intervening act
  3. inevitable discovering 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
24
Q

outside scope of fruit of poisonous tree

A
  1. grand jurie
  2. civil proceedings
  3. violations of state law
  4. violations of internal agency rules
  5. proceedings to revoke parole
25
Q

pretrial procedures - preliminary hearing

A
  1. hearing to determine probable cause
  2. not required if probable cause already found (by grand jury or under arrest warrant)
  3. hearing must be within reasonable time - 48 hours
26
Q

pretrial procedures - initial appearance

A
  1. soon after arrest

2. defendant told of charges, bail set, appointment of counsel if needed

27
Q

pretrial procedures - bail

A
  1. right under due process clause as to federal prosecutions
  2. not required of states but many state constitutions or statutes require
  3. where right exists, excessive bail = 8th amend violation
  4. where right exists, unfair procedures violate due process
28
Q

pretrial procedures - grand juries

A
  1. not required of states
  2. upon finding probable cause , grand issues a “true bill”
  3. secret proceedings
  4. broad subpoena power
    • quashed only if opposing party can prove no reasonable possibility that material sought is relevant to the grand jury investigation
  5. no right to:
    - counsel
    - miranda
    - warnings that witness may be a potential defendant
    • exclude evidence that would be inadmissible at trial
    • challenge subpoena for lack of probable cause
29
Q

pretrial procedures - speedy trial

A
  1. under totality of circumstances, courts will consider; length of delay, reason for delay, whether defendant asserted his rights, and prejudice to defendant
  2. remedy = dismissal with prejudice
  3. right attached on arrest or charging
30
Q

pretrial procedures - prosecutorial disclosure duties

A
  1. gov must disclose exculpatory evidence
  2. failure = due process violation if reasonable probability trial result would have been different if undisclosed evidence has been presented at trial
31
Q

pretrial procedures - competence to stand trial

A
  1. at time or trial, defendant not competent if:
    -lacks rational and factual understanding of
    the charges/proceedings
    -lacks ability reasonably to consult w/
    lawyer
  2. trial judge has a duty to raise if no one else does
  3. burden to prove incompetence may be placed on defendant
  4. may be detained in mental facility for only short time unless commitment proceedings are bought
32
Q

pretrial procedures - pretrial publicity

A

excessive prejudicial publicity may necessitate change of venue

33
Q

right to public trial

A
  1. 6th and 14th amendment = right to public trial
  2. probable cause hearings presumably open to public
  3. suppression hearings open unless:
    • party seeking cloure has overriding interest
    • closure is no broader than necessary
    • other reasonable alternatives were considered
    • court makes finding to support closure
34
Q

right to jury

A
  1. 6th amendment right to jury for serious offenses (imprisonment for more than 6mo)
  2. at least 6 jurors and verdict must be unanimous
  3. representative cross section
  4. right to impartial jury
35
Q

right to counsel

A
  1. denial of right at trial requires reversal
  2. denial of right at nontrial proceedings requires reversal unless harmless
  3. waiver valid if knowing and intelligent and defendant competent
  4. effective assistance of counsel = 6th, effective presumed.
    • ineffective if deficient performance and but for deficiency result of proceeding would have been different
  5. conflicts of interest - representing multiple clients = may be basis for reversal/ no right to joint rep
36
Q

right to confront witness

A
  1. right not absolute
  2. co-defendant’s confession = usually prohibited unless references can be excised or confessing defendant takes stand and subjects to cross
  3. prior testimonial statement of witness inadmissible unless = witness available and defendant had opp to cross when statement made
37
Q

burden and proof and sufficiency of evidence

A
  1. burden - proof beyond reasonable doubt

2. mandatory presumption shifting to defendant violates 14th due process

38
Q

taking plea

A
  • waive right to jury
  • judge must determine plea is vol and intelligent
  • judge must address defendant personally on record to ensure defendant knows:
    1. nature of charge and crucial elements
    2. max and min possible charge
    3. right not to plead guilty
    4. pleading guilty waives right to trial
  • unfairly informed defendant not bound by plea
39
Q

basis for collateral attack on guilty plea

A
  1. plea involuntary - errors in plea taking procedure
  2. court lacked jurisdiction to take plea
  3. ineffective assistance of counsel
  4. failure of prosecutor to keep plea bargain
40
Q

resentencing after successful appeal

A
  1. if judge imposes greater punishment at trial record must show reasons for harsher sentence
  2. exception = reconviction upon trial de novo
  3. exception = jury trial
41
Q

substantive rights regarding punishment

A
  1. 8th amendment prohibits punishment that is both cruel and unusual = grossly disproportionate to offense
  2. death penalty
    -statutory scheme must give factfinder
    reasonable discretion, full information, and
    guidance in making decision
    -statute may not be vague
    -application (see outline)
  3. unconstitutional to make a status crime
  4. unconstitutional to sentence minor to life without poss of parole for non homicide crime
  5. unconstitutional to provide for harsher penalties for those demanding trial
  6. imprisonment of indigent for failure to pay fine violates equal protection
42
Q

appeal

A
  • no right to appeal
  • -if right to appeal is granted by state law, right to counsel applies at first appeal
  • no right of self rep
  • retroactivity of new rule = new rule announced on direct appeal must be applied to all other cases on direct appeal
43
Q

collateral attacks on convictions

A

habeas corpus

  • civil action challenging lawfulness of detention
  • petitioner has burden to show unlawful detention by preponderance of evidence
  • defendant must be in custody (includes bail/probation/parole)
44
Q

double jeopardy

A
  1. 5th amendment right applicable to states through 14th amendment
  2. once attaches, defendant cannot be retried for same offense
45
Q

when does jeopardy attach

A
  1. jury trial = when jury empaneled and sworn
  2. bench trial = when first witness sworn
  3. juvenile proceedings = at commencement of proceeding
46
Q

exceptions permitting retiral under jeopardy

A
  1. hung jury
  2. mistrial for manifest necessity to abort original trial
  3. retrial after successful appeal - cannot be for more serious crime than crime convicted of in first trial
47
Q

same offense for jeopardy

A
  1. two crimes are not the same offense if each crime requires proof of an element the other does not require (blockburger test)
  2. only repetitive criminal prosecutions prohibited (not civil actions)
  3. charges by separates overgins not prohibited (ex: state and federal)
48
Q

privilege against self-incrimination

A
  1. 5th amendment right applicable to states through 14th amendment
  2. right for natural persons (not corporations or partnerships)
  3. apples only to testimony (not physical evidence or docs)
  4. defendant can refuse to take stand altogether
  5. witness other than defendant must take stand and invoke privilege question by question
49
Q

elimination of privilege against self-incrimination

A
  1. use and derivative use immunity sufficient to eliminate privilege
    -immunized testimony is invol and cannot
    be used for peachment
    -state immunized testimony cannot be
    used in federal prosecution
    -federal immunized testimony cannot be
    used in state prosecution
  2. privilege can be waived

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