Criminal Law _ CRIM PRO Flashcards
Definition – Government Action Requirement
SEARCH & SEIZURE
Search & Seizure must be made by a government agent or at the direction of the government
Definition – Search
SEARCH & SEIZURE
A government search of a location with a reasonable expectation of privacy
Open Fields Doctrine:
SEARCH & SEIZURE
- Open areas with no expectation of privacy
- Not a search
Definition – Probable Cause
SEARCH & SEIZURE
A reasonable person would conclude it is more probable than not that a crime has taken place
Hypo: A cop has probable cause that Jon has cocaine in his closet. Can the cop enter Jon’s house to search for the cocaine?
SEARCH & SEIZURE
If the cops enter Jon’s house without a warrant and finds cocaine, it will be inadmissible
Definition – Warrant Requirement
( ____ ) Must be pursuant to a warrant
SEARCH & SEIZURE
Generally, searches must be pursuant to a warrant
Elements of a Warrant:
SEARCH & SEIZURE
1) Issued by detached magistrate
2) Facts must be fresh
3) Persons/Places must be specific
4) Cannot exceed the scope
AdaptiTip
Typically police must ( ____ ) but a search will still be valid if they have a warrant
SEARCH & SEIZURE
Typically police must “Knock and Announce” but a search will still be valid if they have a warrant
Informants
SEARCH & SEIZURE
- Police can rely on informants for probable cause
- To find if an informant is reliable, look to the totality of the circumstances
Plain View:
SEARCH & SEIZURE
- Police can seize what is in plain view during a lawful search
Example:
o Police in your house with a warrant see marijuana
cigarettes on the stairs
Illegal Search:
SEARCH & SEIZURE
- Will NOT automatically dismiss indictment
Protective Sweep
SEARCH & SEIZURE
- Search for additional criminals
- Allowed for safety with proof of others present
Consent
EXCEPTIONS TO THE WARRANT RULE
- One who has control/apparent authority over the property
Co-occupant Consent:
EXCEPTIONS TO THE WARRANT RULE
- A present co-occupant can refuse
- A non-present co-occupant cannot refuse
Search Incident to Lawful Arrest:
EXCEPTIONS TO THE WARRANT RULE
1) Arrest must be lawful
2) Search of person/wingspan
Examples:
o Briefcase
o Pockets
Arrest of a Car Occupant:
EXCEPTIONS TO THE WARRANT RULE
Police may search passenger compartment IF:
1) Occupant is unsecured
2) Reasonable belief of evidence of CRIME OF
ARREST
Inventory Search:
EXCEPTIONS TO THE WARRANT RULE
- After arrest at the police station, police can search the person/car
Exigent Circumstances:
EXCEPTIONS TO THE WARRANT RULE
- Reasonable belief evidence may be lost or destroyed
- Exception to the Warrant Rule
Do not pick an exigent circumstance answer choice unless there are exigent circumstances discussed in the facts, even though it may legally be correct, it is the wrong answer
Automobile Exception:
Illegal Automobile Stop –
No Traffic Violation:
EXCEPTIONS TO THE WARRANT RULE
- If there was no reason to pull the car over, nothing found is admissible
Automobile Exception:
Legal Automobile Stop –
Traffic Violation:
EXCEPTIONS TO THE WARRANT RULE
- Police cannot search the car
- Unless some evidence of other crimes
During a stop for a traffic violation, police cannot search the car, glove box, or trunk unless there is evidence of another crime
Automobile Exception:
Automobile Stop – Probable Cause:
EXCEPTIONS TO THE WARRANT RULE
- Police may search entire car if probable cause the car is carrying contraband
Boarder Search:
EXCEPTIONS TO THE WARRANT RULE
* No warrant necessary
Search Outside United States:
EXCEPTIONS TO THE WARRANT RULE
- US officials may search you on foreign land
Dog Sniff:
EXCEPTIONS TO THE WARRANT RULE
- NOT a search in a public place
Stop & Frisk:
EXCEPTIONS TO THE WARRANT RULE
- STOP: Reasonable suspicion** **criminal activity is afoot
- FRISK: Reasonable belief** person is **armed & dangerous
Automobile Checkpoints:
EXCEPTIONS TO THE WARRANT RULE
- Checkpoints allowed with generic, uniform method for stop
AdaptiTip
If a question asks what is the best argument for admitting the evidence, look for { ____ }
EXCEPTIONS TO THE WARRANT RULE
AdaptiTip
If a question asks what is the best argument for admitting the evidence, look for one of the exceptions
Miranda Elements:
MIRANDA
1) Custody
2) Interrogation
Definition – Custody
MIRANDA
Reasonable person would not feel free to leave
AdaptiTip
You don’t need to be handcuffed to be in custody
Definition – Interrogation
MIRANDA
Police attempting to a elicit criminal response
AdaptiTip
Do the police need to give Miranda warnings IMMEDIATELY?
MIRANDA
The police do not need to give Miranda warnings immediately
Volunteered Statements:
MIRANDA
- No Miranda required if suspect volunteers information
Miranda Warnings:
MIRANDA
1) Right to remain silent
2) Anything said can be used against you
3) Right to an attorney
4) If you cannot afford one, one will be provided
Invoking Right to Counsel:
MIRANDA
- If you request a lawyer, all questioning must STOP
Waiver of Miranda Rights:
MIRANDA
- Knowingly & Voluntary
- Totality of Circumstances
Right Against Self-Incrimination:
MIRANDA
- Never required to testify
- May be required to perform physical acts
- Cannot be forced to make statements
Examples:
o Walk with a limp
o Put on the glove
Lineups & IDs:
MIRANDA
- Cannot be unnecessarily suggestive
- Totality of Circumstances
Examples:
o The only tall guy
o The only guy with a beard
o The only guy with gray hair
Lineups
RIGHT TO COUNSEL
- NO right to counsel PRIOR to Indictment
- Right to counsel AFTER Indictment
Foundation for Rights:
RIGHT TO COUNSEL
- Fifth Amendment Right BEFORE charges or Indictment
- Sixth Amendment Right AFTER formal charges
Right to Effective Counsel:
RIGHT TO COUNSEL
1) Did lawyer deviate from the norms
2) Reasonable probability the outcome would have been different
Waiver of Right to Counsel:
RIGHT TO COUNSEL
- Must Knowingly waive
Timing
RIGHT TO COUNSEL
- Defendant has a right to Counsel at all CRITICAL STAGES of prosecution
Just memorize this LMFAOOOOO
RIGHT TO COUNSEL
AdaptiTip
Generally, the critical stages are {PRE or POST} -indictment
RIGHT TO COUNSEL
Generally, the critical stages are post-indictment
Shared Counsel:
RIGHT TO COUNSEL
- Co-defendants can share counsel unless conflict arises
Undercover Officer in Jail Cell:
RIGHT TO COUNSEL
- Violates Right to Counsel
- Not Miranda
Guilty Plea:
RIGHT TO A FAIR TRIAL & PLEAS
- Entered Voluntarily & Intelligently
Severance
RIGHT TO A FAIR TRIAL & PLEAS
- If two defendants are tried together, one can sever for Unfair Prejudice
Impartiality
RIGHT TO A FAIR TRIAL & PLEAS
- Right to UNBIASED Judge
Competency
RIGHT TO A FAIR TRIAL & PLEAS
- Defendant must be competent to understand charges
- Defendant may be medicated
Jury Trial Rights:
RIGHT TO A FAIR TRIAL & PLEAS
- Sentence is longer than 6 months
- Jury is a cross-section of community
- State trial by 6 members must be unanimous
-
State trial by 12 members need not be
unanimous -
Federal trial by 12 members must be
unanimous -
Exclusion of a juror based on race/gender
violates Equal Protection
Right to Public Trial:
RIGHT TO A FAIR TRIAL & PLEAS
- Press may attend UNLESS overriding interest to close trial
- Does not apply to Grand Jury
Right of Confrontation:
RIGHT OF CONFRONTATION
- Right to confront & cross-examine all witnesses
Co-defendant Confessions:
RIGHT OF CONFRONTATION
- A** co-defendant’s confession** can only be used against the other if available to testify
Right to Confront Out-of-Court Statements:
RIGHT OF CONFRONTATION
- Testimonial Statements are inadmissible
- Non-testimonial Statements are admissible
NOTE:
Definition – Non-Testimonial Statements
Made during an emergency
Prosecution’s Burden:
PROCEDURAL RIGHTS
- Must prove all elements BEYOND A REASONABLE DOUBT
Defendant’s Burden:
PROCEDURAL RIGHTS
- Must prove a defense by PREPONDERANCE OF THE EVIDENCE
Presumptions
PROCEDURAL RIGHTS
- NO Mandatory Presumptions in criminal cases
- Violates Due Process
Complete this:
AdaptiTip
During jury instructions, elements of a crime must be proven by the {PROSECUTION or DEFENSE} & elements of a defense must be proven by the {PROSECUTION or DEFENSE}
PROCEDURAL RIGHTS
During jury instructions, elements of a crime must be proven by the prosecution & elements of a defense must be proven by the defendant
Grand Jury:
PROCEDURAL RIGHTS
- Accused has no right to be present
- Exclusionary Rule does NOT apply
- Witness has NO Right to Counsel **INSIDE the room
Double Jeopardy:
- Cannot be tried for the same crime twice
- Does not apply to anything BEFORE first trial
Example:
o Grand jury
o Preliminary hearings
Jeopardy Attaches:
- Jury Trial: Jury is sworn in
- Bench Trial: First witness is sworn in
