Criminal Procedure Flashcards

Question

Arrests --> Arrest Warrants

Answer 1

Arrest warrants generally not required when arresting someone in a public place. ---> When they are obtained, they must be issued by a neutral and detached magistrate after an adequate showing of PC. A valid arrest may occur either w/ or w/o a warrant; generally, no warrant reqd for an arrest (police need only PC). - -> POs may come into possession of requisite fact/circumstances for PC from their own observations of the suspect OR through information obtained by third parties. - -> PC defined as that quantity of facts and circumstances w/in the PO's knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search). - -> Evaluated in terms of what was known at the moment of the govt intrusion; a PO may est PC by considering events leading up to the moment of arrest. Informants PC to arrest may be obtained indirectly through an informant; tip may serve as basis for PC arrest if reliability estd by: (1) the informant's tip containing specific details; and (2) the reliability of both the details and the informant being confirmed prior to the moment of arrest.

Answer 2

When a person is taken into custody for the purpose of commencing a criminal action, an arrest has occurred. Whether a person is in custody is determined based on the objective circumstances surrounding the interrogation, particularly: (1) person did not feel that he was at liberty to terminate the interrogation and leave; and (2) person was in an environment that presented inherently coercive pressures.

Answer 3

An arrest warrant is reqd before POs can arrest a person in his own home, absent exigent circumstances or consent. Consent/exigent circumstances estd when: (1) an arrest attempt outside the home is thwarted because suspect retreats into the home (2) there is insuff time to secure a warrant because the delay would allow the suspect to evade arrest or destroy evidence; or (3) the arresting PO is in hot pursuit and has PC to effect a valid arrest of the suspect Third Party Home Arrests -->POs generally may not legally search for the subject of an arrest warrant in the home of a 3rd party absent exigent circumstances or consent w/o first obtaining a search warrant for those premises. Knock and Announce - -> Unless exigent circumstances exist, POs must knock and announce their identity before entering to make the arrest. - -> Violation of the knock and announce rule does not automatically trigger the exclusion of evidence seized after the violation.

Answer 4

Both POs and private citizens may make arrests for felonies committed in their presence. --> A PO may arrest a person for a felony not committed in his presence when he has reasonable grounds to believe a person did, in fact, commit the felony. POs and private citizens may make arrests for misdemeanors when: (1) the crime is committed in their presence; and (2) the misdemeanor amounts to a breach of the peace. - -> A warrant is reqd for a misdemeanor that the PO did not personally observe, regardless of whether arrest takes place inside/outside the suspect's home.

Answer 5

The voluntariness standard is based on the trustworthiness and reliability of the proffered evidence, and is used to determine admissibility of a confession based on totality of circumstances. - -> POs have broad reign to trick and deceive Ds during interrogations; however, cannot make FALSE PROMISES of dropping charges to elicit a confession. - -> COERCION may take form of physical abuse, threats, or promises of leniency. Factors include D's: (1) age (2) sex (3) education; and (4) mental and physical health Admission of involuntary confession NO LONGER reqs automatic reversal; rather, HARMLESS ERROR rule is applied to admission. Involuntary Statements A statement is generally considered involuntary when the PO subjected the suspect to coercive conduct, and that conduct (under totality of circumstances) was suff to OVERCOME THE WILL of the suspect (given his particular vulnerabilities and the conditions of the interrogation).

Answer 6

Voluntariness Approach - -> To be admissible, statement must be voluntarily made based on totality of circumstances. - -> DPC 5A and 14A RTC Approach - -> Statements made during any critical stage of a criminal proceeding are inadmissible unless the D is afforded the RTC. - -> 6A RTC Miranda Standard - -> Statements made during custodial interrogation are inadmissible in the absence of Miranda warnings. - -> 5A privilege against Self-Incrim Fruits of Illegal Conduct - -> Even voluntary statements obtained as fruits of prior illegal searches and seizures are inadmissible. - -> 4A Exclusionary Rule

Answer 7

Under the 6A, suspect has RTC during questioning by POs. - -> Accused must make the request unambiguously to interrogator, at which time questioning must cease. - -> Offense specific - -> Counsel must be present at all questioning until the accused waives the right. - -> Absent effective waiver once formal charges are filed, deliberate eliciting of any incriminating statements from a D w/o assistance of counsel violates 6A RTC - -> Police agents' secret recording of a suspect's conversations while out on bail violates RTC

Answer 8

5A: No person shall be compelled in a criminal case to be a witness against himself. - -> Applies only to natural persons - -> Must be asserted to be effective When witness has a reason to fear that answers to possible questions might tend to incriminate him/subject him to other prosecution w/in the US, he has a valid 5A privilege against self-incrim. - -> Privilege may be asserted in any criminal, civil, or admin proceeding where incrim testimony can be used in subsequent prosecution (such as grand jury proceeding where trial may result). - -> Privilege protects against admission of evidence that is testimonial in nature, but not against admission of real/physical evidence (blood, hair, etc) Accused has right to waive privilege and give testimony. --> When the govt questions an individual outside the trial setting, the purpose of the questioning determines whether the individual's failure to affirmatively invoke the privilege constitutes a valid waiver.

Answer 9

Miranda rule states that no statement made by D will be admitted into evidence unless (prior to custodial interrogation) the D is given certain warnings. -----> Statements obtained in violation of Miranda may not be used in the prosecution's case in chief.

Answer 10

Miranda warnings need not be given verbatim, provided the D is suff informed of his rights; Miranda reqs that suspect be given 4 warnings: (1) he has right to remain silent; (2) anything he says can be used against him in ct; (3) he has right to presence of attorney; and (4) if he cannot afford an attorney, one will be provided

Answer 11

Miranda only applies when an interrogation occurs (where police know or should reasonably know that their actions/inquiries are reaonsably likely to elicit an incriminating response). - -> Volunteered, spontaneous, or unsolicited statements are not considered the product of an interrogation and thus are admissible. - -> Miranda bars only official interrogation; thus, informant questioning in jail does not require giving Miranda warnings (nor does private security guard questioning).

Answer 12

Miranda applies only to statements made during custodial interrogation where the suspect experiences significant deprivation of freedom of movement and may not leave. --> Exception: does not apply to questions by POs regarding age, DOB, height, weight, and the like; and when questioned by a parole officer when the D was free to leave the police station. Factors for determining whether suspect was in custody for Miranda purposes (subjective factors not considered): (1) when and where it occurred (2) how long it lasted (3) how many POs were present (4) what the POs and D said and did (5) the presence of physical restraint or the equivalent (such as drawn weapon or a guard stationed at the door) (6) whether the D was being questioned as a suspect or a witness

Answer 13

A knowing and intelligent waiver of one's Miranda rights is permitted, but the prosecution has a heavy burden to prove that there was compliance w/ the warnings req and that the waiver was voluntary, knowing, and intelligent. - -> Waiver need not be in writing - -> Waiver can be express or implied, but ordinarily cannot be presumed from D's silence

Answer 14

If a D either requests an attorney or states that he wishes to remain silent, all interrogation must stop; can be made at any point during the interrogation. - -> Invocation of the right reqs (at a min) some statement that can reasonably be construed to be an expression of a desire for assistance of an attorney (suff clear that a reasonable PO in the circumstances would understand the statement to be a request for an attorney). - -> To resume questioning anew, POs must allow a significant period of time to elapse and must provide new Miranda warnings. - -> D requesting counsel may not be questioned further until either counsel is furnished or D voluntarily initiates a discussion beyond a necessary inquiry arising out of incidents of custodial relationship - -> Admissions obtained after giving Miranda warnings are admissible (even if prior admissions on the same matter were obtained in violation of Miranda); however, POs may not give Miranda warnings in the middle of questioning and ask the D to repeat the statements made before Miranda was given.

Answer 15

Any lineup, show up, or photo ID will be inadmissible as violation of DPC when the ID is UNNECESSARILY SUGGESTIVE and likely to produce an irreparable mistaken identification. - -> Totality of the circumstances: where an ID is both suggestive and unnecessary, it can still be admissible if it is reliable based on TOFC; factors: (1) the opportunity to view the criminal act at the scene (2) the witness's degree of attention (3) the accuracy of the witness's description (4) the degree of certainty of the witness (5) the time interval between the crime and the ID

Answer 16

RTC attaches upon start of adversary proceedings, to which indictment would qualify. - -> After formal charges are filed, D has RTC present at lineup. - -> No RTC exists at police lineups conducted before the accused is indicted. - -> Inadmissibility of OOC ID made at lineup (based on violation of D's RTC) does not bar witness from making in-ct ID at trial when the prosecution clearly and convincingly shows that the subsequent ID stemmed from independent, purging source.

Answer 17

Procedural rule of fed con law used to deter unlawful police conduct. - -> Evidence seized in violation of the 4A (including physical evidence and statements) is INADMISSIBLE in a criminal proceeding. - -> Exc Rule also applies to violations of 5A and 6A; however, not (usually) applicable to Miranda violations.

Answer 18

In addition to illegally obtained evidence, any additional evidence, including oral statements and physical objects acquired directly or indirectly from the illegal arrest/search/seizure must also be EXCLUDED. Exception- may still be admitted if taint dissipated by: (1) Independent Evidence- evidence obtained from source independent of original illegality. (2) Inevitable Discovery- evidence that would have been discovered regardless of illegality; or (3) Attenuation- confession or consent to illegal search distant enough from initial illegality that it is considered voluntary and not 4A violation. - ----> Factors: (1) whether Miranda warnings were given; (2) temporal proximity of arrest and confession/consent; (3) presence of intervening circumstances; and (4) purpose and flagrancy of official misconduct.

Answer 19

Exclusionary rule precludes only the use of suppressed evidence in the prosecution's case-in-chief and does not apply to the use of evidence for impeachment. --> However, confessions which have been coerced or immunized are inadmissible for any purpose.

Answer 20

Evidence obtained pursuant to an invalid warrant will not be excluded if a reasonably well-trained officer would have believed that the warrant was valid. Aspects for considering the good faith exception include: (1) whether the police were acting on good faith reliance of a facially valid warrant; (2) whether the police were acting in reliance of a valid statute; and (3) whether the police were acting in reliance of a ct official rather than a PO Good faith exception to exclusionary rule does not apply when: (1) the police lie or mislead the ct in attaining a warrant (2) the magistrate is not neutral or detached, and (3) no reasonable PO would have believed the warrant was valid

Answer 21

(1) The Excl rule had not been extended to GRAND JURY proceedings, and evidence at issue may be considered in granting an indictment. (2) Evidence obtained under the REASONABLE RELIANCE of the validity of a search warrant issued by a detached and neutral magistrate is not subject to the excl rule. (3) Evidence excluded by the rule from use by one SOVEREIGN may be used in the civil proceedings of another sovereign. (4) Evidence excluded by the rule for violating the 4A 5A or 6A may be used to impeach testimony given on either direct examination or cross. (5) A confession obtained w/o giving MIRANDA warnings may be used to impeach a D's testimony, unless it is coerced or immunized.

Answer 22

A D has a right to a suppression hearing, at which time the judge (as a matter of law) determines the admissibility of the evidence out of the jury's presence. Admission of illegally obtained evidence constitutes reversible error unless the error is "harmless." --> Under this standard, the govt must prove beyond a reas doubt that the error did not contribute to a conviction.

Answer 23

A criminal D must have standing to raise a 4A violation claim. --> D must be personally the victim of police's unreasonable conduct. Test: Ct must determine whether the person who claims the protection of the 4A has a legitimate expectation of privacy in the invaded place.

Answer 24

D entitled to individualized hearing to determine whether bail should be granted or denied. - -> Not yet considered a critical stage where D has RTC (but counsel usually present) - -> Purpose: to assure presence of D at trial - -> 8A prohibits excessive bail, but no explicit constitutional right to bail (however, most states grant right to bail in state constitutions)

Answer 25

During arraignment, D given formal notice of charges against him and advised of rights by ct. - -> D has RTC at this stage - -> D called on to answer indictment, elect jury trial or trial by judge, and enter plea (in felony cases, indigent Ds usually appointed counsel at this time).

Answer 26

6A: provides that the accused shall enjoy the right to have the assistance of counsel for his defense (applied to states through 14A). - -> Includes right to be provided w/ free counsel when accused is indigent - -> Indigent must be informed of right to free counsel before valid waiver can arise - -> Failure to provide adequate counsel at trial results in automatic reversal; however, the harmless error rule applies to the denial of counsel at criminal proceedings other than trial. - -> RTC attaches at all critical stages of proceeding. RTC = right to effective counsel - -> Law presumes legal counsel is effective and D must demonstrate otherwise by proving both: (1) that counsel was ineffective (ex: deviated from reasonably prevailing norms); and (2) there is a reasonable probability that the verdict would have been not guilty had counsel been effective, - -> 2 analagous situations where test not used: (1) if there is an actual conflict that adversely affects the attorney's performance, reversal is proper. (2) if the defense attorney indicates to the ct that such conflict exists, defense must be severed.

Answer 27

D has the right to represent himself. --> Although an intelligent waiver of RTC will be generally recognized and approved, there is no absolute right to waive counsel at appellate level.

Answer 28

6A: guarantees criminal D right to a speedy trial in both fed ct and state ct (through 14A). - -> Violation of this right results in complete dismissal of charges against D - -> Attaches once D is accused (such as upon arrest or filing of charges) - -> Long interval between arrest and indictment raises inference of violation (even if D was released after arrest) The Speedy Trial Act of 1974 --> Reqs federal indictment w/in 30 days of arrest and trial w/in 70 days of indictment. Ct judges violations of speedy trial right w/ balancing test of following factors: (1) length of delay; (2) reason for delay; (3) D's assertion of right to speedy trial; and (4) prejudice to the D (may include oppressive incarceration, memory loss by witnesses, loss of evidence, and anxiety of D).

Answer 29

The right to a jury trial attaches in any criminal proceeding where the D faces potential sentence of longer than 6 months. - -> Was extended to criminal contempt cases in which punishment imposed exceeded 6 months in jail; in civil contempt cases, no right to jury trial exists. - -> D can expressly and intelligently waive right to jury trial 6 member jury upheld in noncapital cases in state cts as long as jury functions as representative cross-section of community (unanimous verdict reqd). - -> 5 person juries unconstitutional DPC violation - -> Federal trials req unanimous verdicts of 12 member juries (where fed ct would req unanimous verdict, 6A reqs state cts also convict by unanimous verdict).

Answer 30

D has right to jury selected from cross section of community (however, need not include members of all minority groups). Exclusion of prospective jurors based on race, ethnicity, or gender violates the EPC. - -> A prima facie showing of purposeful racial discrimination in jury selection can be est'd solely on the prosecutor's exercise of peremptory challenges at the D's trial, placing the burden on the state to prove otherwise. - -> A pretextual reason for exercising peremptory challenge given by prosecution gives rise to inference of discriminatory intent - -> To rebut charge of racial discrim, state must show it followed racially neutral selection procedures - -> D has standing to challenge jury selection even if he is not a member of the excluded group

Answer 31

When 2 Ds are tried together, if either co-D is unfairly prejudiced at any stage of a joint trial, a right of severance may be granted. In a joint trial where a co-D's confession implicates the other D, the right to confrontation prohibits the use of such confession and dictates that the Ds are entitled to separate trials. - -> Traditional approach of giving jury instructions to consider confession only against confessing D is constitutionally inadequate, unless: (1) incriminating portions of the confession can be adequately deleted; (2) co-D takes the stand after making a confession and is subject to cross; or (3) the co-D's statement is subject to the harmless error rule

Answer 32

The D has a fundamental right of confrontation (meaning he may confront all witnesses against him in any criminal proceeding - federal or state). - -> Primary purpsoe: give the D an opp to cross examine witnesses at trial (does not apply to GJ) - -> Right is not absolute and may be waived - -> TJ may bind and gag the D, cite him for contempt, or remove him from the ct room for disruptive behavior OOC Statements --> Confrontation Clause does not automatically exclude all hearsay evidence; prosecution must demonstrate that the witness is unavailable after good-faith efforts have been made AND the hearsay statement is trustworthy.

Answer 33

OOC statements that are testimonial in nature (such as statements made to POs or 911 after an emergency has ceased) are inadmissible under the CC even if such statements would be considered excited utterances. OOC statements are non-testimonial and admissible when made in the course of police investigation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.

Answer 34

5A: No person shall be compelled in a criminal case to be a witness against himself. - -> Applies only to natural persons - -> Must be asserted to be effective When witness has a reason to fear that answers to possible questions might tend to incriminate him/subject him to other prosecution w/in the US, he has a valid 5A privilege against self-incrim. - -> Privilege may be asserted in any criminal, civil, or admin proceeding where incrim testimony can be used in subsequent prosecution (such as grand jury proceeding where trial may result). - -> Privilege protects against admission of evidence that is testimonial in nature, but not against admission of real/physical evidence (blood, hair, etc) Accused has right to waive privilege and give testimony. --> When the govt questions an individual outside the trial setting, the purpose of the questioning determines whether the individual's failure to affirmatively invoke the privilege constitutes a valid waiver.

Answer 35

Testimony for which the individual has been granted use or transactional immunity is not self-incriminating. Use immunity --> ensures that testimony of the witness will not be used against that witness Transactional immunity --> extremely broad and ensures that the witness will not be prosecuted for any crimes related to the entire transaction

Answer 36

DJC is intended to prevent undue harassment and expense by eliminating risk of a D being punished twice for the same offense. --> Applies to all crimes (even those punishable by fine only). Same Offense Crimes constitute the same offense for DJC purposes if one set of facts proves them both. Lesser-Included Offenses When a second offense contains all of the elements of a first offense (plus additional elements) then the first offense is a lesser-included offense of the second. --> once DJ attached for the lesser-included offense, retrial is barred for the greater offense --> likewise, once DJ has attached for greater offense, retrial barred for lesser included offense. Exceptions to Lesser-Included Offenses When at the time DJC attaches for the first offense all the elements of the second offense have not occurred, a later trial for the greater offense is permitted. --> If pros wants to try closely related charges together, D may make motion for separate trials; however, if granted, D has waived any claim to DJ. Constituting separate offenses: (1) burglary and conspiracy to commit burglary (2) driving while intox and invol mansla; and (3) murder of more than one victim

Answer 37

Nonjury trial: when the first witness is sworn and the ct begins to hear evidence. Jury trial: when the jury is impaneled and sworn Civil fine: where truly a punishment, DJC triggered GJ: when GJ fails to indict D (or hands down a no bill or no true bill) that D may again be indicted for the same offense (DJC does not attach).

Answer 38

DJC prohibition does not prevent dual pros by separate sovereigns; therefore D may be prosecuted for the same crim conduct by: (1) a fed ct and then by a state ct (or vice versa); or (2) state cts in two separate states However, local conviction does bar state conviction for same offense (same sovereign).

Answer 39

Despite rule against DJ, retrial permitted if: (1) D successfully appeals conviction because of error at trial; or (2) the appeal was granted because of amount of evidence supporting conviction Retrial following reversal of conviction --> Where due to insuff evidence, retrial prohibited by DJC; however, retrial following reversal due to conviction being against weight of evidence not barred. Retrial following mistrial --> Retrial permitted where mistrial has been granted on D's motion. Retrial after acquittal --> Not permitted

Answer 40

D has RTC during sentencing hearing. D has right to remain silent (5A) at sentencing and no adverse inference may be drawn from that right. During sentencing, ct may use hearsay evidence and testimony not subject to cross, OR evidence obtained in violation of the 4A. - -> Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory max must be submitted to the jury and proved beyond a reasonable doubt - -> However, D's 6A rights violated when sentencing judge enhances sentence based on facts neither admitted by the D nor found by a jury

Answer 41

In order to comply w/ the 8A, the sentence must be proportional to the crime committed and the sentences of other similarly situated criminals having conducted similar crimes. --> Mandatory capital punishment for specified crimes, such as shooting a PO, is unconstitutional because it precludes consideration of mitigating factors.

Answer 42

Not considered CAU punishment, nor grossly disproportionate to the crime, provided the ct's review procedure affords procedural safeguards to prevent arbitrary/discriminatory sentencing: (1) a bifurcated trial (2) evidence concerning aggravating circumstances must be presented before imposing death penalty (3) ct must review mitigating factors (4) jury may not impose death sentence unless also permitted to return a verdict of guilty to a lesser-included offense supported by the evidence (5) when capital D's dangerousness at issue, and other option is LWOP, D entitled to tell jury he is ineligible for parole; and (6) there must be a review procedure to prevent imposition of death penalty for arbitrary/discriminatory reasons --> Execution of individuals under 18 at time of crime & mentally retarded individuals prohibited by 8A and 14A.

Answer 43

No right to have jury determine sentence; even death penalty may be imposed by judge acting alone or w/ jury advisement as to sentence. State statute may not exclude from a jury all individuals who express some opposition to the death penalty, but may exclude those who indicate they would never (under any circumstances) impose the death penalty.

Answer 44

If D pleads guilty and waives jury trial, the judge then determines if plea was voluntarily and intelligently made; judge must be personally certain the D understands: (1) the nature of the charge against him (2) the max possible sentence and any mandatory minimums (3) the fact that he has a right not to plead guilty; and (4) that by pleading guilty, the right to jury trial is waived. A D may withdraw guilty plea and plead again when any form of error occurs during taking of the plea.

Answer 45

A D may agree to plead guilty to an offense in return for the prosecutor's recommendation of a lesser sentence or dismissal of a charge. - -> D has right to enforce his plea bargain once the ct accepts the plea. - -> Prosecutor need not reveal info about the impeachment of witnesses or affirmative defenses before the D enters into binding plea agreement.

Answer 46

On the theory that the D knew the risks involved before choosing to waive jury trial, the D does not have a right to collaterally attack a guilty plea for prior constitutional violations. However, the D who pleads guilty is allowed to file a collateral attack: (1) when the prosecutor fails to keep his promise; (2) when the ct lacks jdx; or (3) when ineffective assistance of counsel occurs