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NYS Bar > Crim Procedure > Flashcards

Crim Procedure Flashcards

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1
Q

Fourth Amendment applies to…

A

(1) searches
(2) seizures
(3) arrests

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2
Q

Standing

A

Drivers and passengers have standing

Overnight guests and homeowners or those with rights to possession of the home have standing.

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3
Q

Arrest occurs when…

A

(1) an officer through physical force or show of authority restricts a person’s movement, OR
(2) police show unambiguous intent to retrain and, in the ∆’s circumstances, a reasonable person would believe he is not free to leave.

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4
Q

When do police need an arrest warrant?

A

Generally, no warrant required.

Exceptions: suspect is in his/her home (unless consent or exigent circumstances).

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5
Q

Exigent circumstances for entering home

A

(1) hot pursuit

(2) emergency (reasonable apprehension that evidence will be destroyed or safety of officer or public threatened.

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6
Q

Knock and announce

A

Before entering a home, police must knock and announce—even with a warrant.

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7
Q

Search occurs when…

A

Government violates a reasonable expectation of privacy. Includes: home, private areas of store, private business office, hotel room, inside of luggage (unless at airport).

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8
Q

Probable cause established by…

A

At common law:

(1) officer’s personal observations
(2) information from reliable, known informant
(3) information from unknown informant if information can be independently verified.

In NY:
No requirement that probable cause be based on competent evidence. Can be unsworn hearsay. But must demonstrate veracity or reliability of source of information AND the basis of informant’s knowledge.

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9
Q

Exceptions to warrant requirement for seach

A

(1) search incident to arrest
(2) exigent circumstances
(3) stop and frisk
(4) automobiles
(5) plain view
(6) consent
(7) administrative seaches

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10
Q

Search incident to arrest

A

MBE: Can search the person and area within wingspan including any container large enough to conceal weapon or evidence.

NY: Cannot search containers within wingspan UNLESS police suspect person is armed and dangerous.

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11
Q

Hot pursuit

A

Exigent circumstance. Only available if fleeing person committed a felony, not a misdemeanor.

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12
Q

Emegency

A

Exigent circumstance. Officer must have reasonable apprehension that evidence will be destroyed or threat to public or officer safety.

Must be a nexus between emergency and the area searched.

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13
Q

Stop and frisk

A

Warrant exception. Can stop if police have reasonable suspicion based on articulable facts that detainee was involved in a crime.

Reasonable suspicion = less than probable cause. Can be based on informants tip if tip has sufficient indicia of reliability.

Frisk = pat down of outer clothing and use of “plain feel” to identify any obvious items. (In NY: can only seize things believed to be weapons.)

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14
Q

Three ways to search automobile

A

(1) Probable cause the vehicle contains contraband or evidence of criminal activity.
(2) If driver arrested, search incident to arrest.
(3) If driver is arrested and car impounded, can search entire care, including trunk and containers.

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15
Q

Plain view doctrine

A

Officer in a home can seize any evidence in plain view if: (1) officer is there lawfully AND (2) the incriminating character of the thing is immediately apparent.

In NY: cannot seize obscene materials through plain view.

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16
Q

Consent

A

Warrant exception. If ∆ consents, no need for warrant. consent by third party valid if party has joint control.

Apparent authority: police can rely on someone with apparent authority, even if mistaken.

Does not include landlords and tenants.

Exception: If a person with joint authority expressly refuses consent, no search can occur.

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17
Q

Administrative searches

A

(1) airport boarding areas
(2) highly regulated businesses (liquor stores, gun shops, strip mines, auto junkyards)
(3) oral statements seized by wiretap for national security
(4) special needs searches like drug testing of those involved in accident or students.
(5) inventory searches of items in official custody
(6) Border searches
(7) vehicle checkpoints if uniform and non-discriminatory
(8) government employee file cabinets if suspicion of work-related misconduct.
(9) detention of travelers suspected of smuggling contraband
(10) search of parolee’s home if consented as condition of parole
(11) seizure of contaminated or spoiled food.

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18
Q

Exclusionary rule

A

applies to evidence seized in violation of 4th Amendment or any derivative evidence/fruit.

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19
Q

Exceptions to exclusionary rule

A

(1) inevitable discovery
(2) independent source doctrine
(3) attenuation principle (passage of time or intervening events)
(4) good faith exception UNLESS: (a) no reasonable officer would have relied on warrant; (b) warrant was defective on its face (c) warrant obtained by fraud (d) warrant improperly executed, OR (e) magistrate abandoned his judicial role
(NOTE: No good faith exception in NY)
(5) Back office negligence UNLESS systematic and reckless.
(6) No knock-and-announce exclusion
(7) In-court identifications = not considered fruit

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20
Q

Fifth Amendment applies to…

A

individuals, not corporations

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21
Q

Fifth Amendment covers…

A

testimony, but not physical evidence

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22
Q

Fifth Amendment protects against…

A

involuntary statements AND voluntary statements obtained in violation of Miranda.

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23
Q

Can use involuntary statements despite Fifth Amendment for…

A

Nothing. Not case, nor impeachment, nor fruits.

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24
Q

Can use voluntary statements despite Fifth Amendment for…

A

Impeachment purposes or any fruits. But cannot use in primary case in chief.

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25
Q

Coerced confessions test?

A 
Totality of the circumstances. Look at: 
Age
Heath
Education
Mental condition
Duration of interrogation
If minor, parent's absence
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26
Q

Miranda rights

A

(1) right to remain silent
(2) any statement uttered can be used in court
(3) right to counsel of attorney and have attorney present during interrogation
(4) Right to have attorney appointed if suspect cannot afford one.

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27
Q

What is “custody” for Miranda purposes?

A

Whether a reasonable person would believe that he is not free to leave OR person is deprived of freedom in a significant way.

28
Q

What is “interrogation” for Miranda purposes?

A

Any questioning or behavior police should know is likely to elicit incriminating responses.

Watch for: “question first, warn later” approach that intentionally attempts to circumvent Miranda.

29
Q

If Miranda is violated, police can still use statements for…

A

Impeachment or any physical fruits. Cannot use for case in chief.

30
Q

Immunity

A

Transactional immunity = complete immunity that protects a witness from future prosecution related to testimony.

Use-and-derivative-use immunity = precludes use of witness’s own testimony or evidence derived from it.

31
Q

Sixth Amendment right to counsel applies in…

A

All felony cases OR misdemeanor cases involving incarceration.

32
Q

Sixth Amendment right to counsel triggers when…

A

Formal charges are brought. Ends when sentencing is over.

Formal proceedings begin with (1) indictment, arraignment, or preliminary hearing.

In NY: Investigatory line ups if ∆ already has attorney on other charge and requests his attorney be present. Also includes grand juries.

33
Q

Sixth Amendment right to counsel does not trigger when…

A 
Witness views photo IDs
Pre-charge investigative line-up
Fingerprints, handwriting samples, voice samples, blood sample
Preliminary hearing for probable cause
Discretionary appeals
Post-conviction proceedings
34
Q

Waiver of Sixth Amendment (Proceed pro se)

A

Valid waiver must be voluntary, knowing, and intelligent.

In NY: If attorney already appointed, waiver in presence of attorney UNLESS it is a new and unrelated charge.

35
Q

Ineffective Assistance of Counsel

A

∆ must prove: (1) deficient performance and (2) prejudice

In NY: ∆ must show (1) ∆ did not receive “meaningful representation,” (2) attorney’s conduct was “egregious and prejudicial error,” and (3) but-for the deficiency, result would have been different.

36
Q

Admissibility of in-person lineup ID

A

To admit:

(1) ID was not impermissibly suggested
(2) the testimony was nonetheless reliable

37
Q

Two ways for brining charges

A

(1) Indictment after grand jury

(2) Information, subject to preliminary hearing on probable cause within 48 hours

38
Q

NY grand juries

A

16-32 people with 12 needed for indictment.
Can only support indictment with legally sufficient evidence otherwise admissible at trial.
If witness has immunity = no right to counsel
If witness has no immunity = right to counsel

39
Q

Exculpatory evidence / Brady material

A

π must provide all material evidence favorable to the ∆ that would negate guilt or diminish culpability or punishment.

To show violation, ∆must prove: (1) evidence was exculpatory and (2) ∆ was prejudiced.

40
Q

Right to jury trial applies when…

A

If legal = right to jury
if equitable = no right to jury

Must try legal questions first.

Waiver only if voluntary, knowing, and intelligent

41
Q

NY juries have…

A

12 people if felony

6 people if misdemeanor

42
Q

Speedy trial test:

A

Balancing test. Considers:

(1) Length of delay
(2) reason for delay
(3) defendant’s assertion of speedy trial right
(4) prejudice

In NY: depends on type of crime
Felony = within 6 months
Class A misdemeanor = within 90 days
Class B misdemeanor = within 60 days
Violation = within 30 days
43
Q

Confrontation right

A

May not admit out-of-court statements by witness that are testimonial UNLESS (1) witness is unavailable and (2) ∆ had prior opportunity to cross-examine.

Testimonial = anything said in anticipation of trial

NY exception: DNA report from rape kit is permissible regardless of confrontation

44
Q

Confession of non-testifying co-defendant at joint trial (confrontation clause problem)

A

Burton Rule: Admission of confession violates Sixth Amendment confrontation clause. But does not apply if co-defendant testifies.

45
Q

NY Burden for affirmative defenses

A

Only preponderance of evidence for insanity, duress, and entrapment.

46
Q

What test is used for double jeopardy?

A

Blockburger test: See whether each crime requires proof of an element that the other does not.

Retrial after reversal for error = allowed
Retrial after reversal for insufficiently of evidence = not allowed
Retrial after mistrial declared = allowed if manifest necessity

47
Q

What is the scope of the 6th Amendment’s prohibition against questioning once right to counsel has been invoked?

A

Prohibition only applies to the crime charged. Police can interrogate regarding other crimes.

48
Q

Does an arrest warrant authorize police to enter the home of the person to be arrested?

A

Yes. An arrest warrant impliedly authorizes entering the person’s home in order to effectuate the warrant if the officers have probable cause to believe that the arrestee is present. However, officers cannot lawfully enter to arrest the person in another’s home.

49
Q

What standard must prosecution meet to show a valid waiver of Miranda rights?

A

Burden is on the prosecution to show waiver by a preponderance of the evidence.

50
Q

Does the 6th Amendment guarantee a right to a criminal defendant’s counsel of choice?

A

Yes. A defendant is constitutionally entitled to be represented at trial by a qualified attorney of the defendant’s choice, where that attorney is not provided by the state. Violation of this is grounds for reversal of a conviction.

But this right is subject to some limitations.

51
Q

May a prosecutor threaten a ∆ with a greater crime in order to persuade the ∆ to plead guilty to a lesser one?

A

Yes. This does not rise to the level of prosecutorial vindictiveness.

52
Q

May the death penalty be imposed on a minor?

A

No. The death penalty cannot be imposed on a person who committed the crime as a minor (under 18yo). Doing so violates the 8th Amendment.

53
Q

Must the state provide appointed counsel to a ∆ pursuing a discretionary appeal?

A

No. A state is not constitutionally required to provide an indigent defendant with counsel in order to pursue a discretionary appeal.

54
Q

What requirement must aggravating circumstances for the death penalty satisfy under the 8th Amendment?

A

Cannot be unconstitutionally vague.

55
Q

May the government impose a burden of proof on a ∆ to prove an affirmative defense without violating the DPC?

A

Yes.

56
Q

May a ∆convicted in federal court be tried again in state court?

A

Yes. Under the “dual sovereignty” doctrine.

57
Q

What is the dual sovereignty doctrine?

A

More than one sovereign may prosecute an individual without violating the prohibition against double jeopardy if the individual’s act breaks the laws of each sovereignty.

58
Q

May police use a road checkpoint to check for drugs in cars?

A

No. Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not.

59
Q

How clear must invocation of the right to counsel be?

A

It must be unambiguous.

60
Q

Under the Double Jeopardy clause, must all charges against a ∆ arising out of a single factual scenario be brought at the same time?

A

No. The Fifth Amendment’s Double Jeopardy Clause prohibits multiple criminal prosecutions for the same offense. Two different crimes committed in one criminal transaction are only deemed to be the same offense unless one offense requires proof of an element the other does not

61
Q

When may police employ vehicle check points lawfully?

A

(1) the stop is based on neutral, articulable standards, AND

(2) its purpose is closely related to an issue affecting automobiles.

62
Q

Can a police officer order a person out of the car when he stopped the car for a simple traffic violation?

A

Yes. As part of the stop, the police officer could order the passenger to exit the vehicle.

63
Q

Must a court suppress derivative physical evidence obtained after questioning a suspect in custody without Miranda warnings?

A

No. Derivative physical evidence 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 is admissible.

64
Q

Does a judge or jury determine whether a defendant’s sentence runs concurrently or consecutively?

A

A judge.

65
Q

What formalities are required for waiver of a jury right?

A

Must be in writing, signed by ∆ in open court, and approved by the judge.

NYS Bar (24 decks)

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