Criminal Procedure

Question 1

Is an anonymous tip enough to support a search warrant?

Answer 1

No, you need a statement under oath or an affidavit

Question 2

May a police officer seize an item in plaint view if it was not named in the search warrant?

Answer 2

Yes, as long as the officer is on the premises for a lawful purpose and the incriminating nature of the item is immediately apparent.

Question 3

Can police search a vehicle without a warrant.

Answer 3

Yes, as long as they have probable cause to believe that it contains contraband or evidence of criminal activity. They can even search the trunk if they have probably cause to believe that it contains contraband.

Question 4

If there is a long break during interrogation does Miranda need to be read again?

Answer 4

Yes

Question 5

Is the sixth amendment situation specific?

Answer 5

No it is offense specific

So if you are charged with murder, and then they later interrogate you to see if you robbed at the same time, the sixth amendment does not apply to the robbery interrogation

Question 6

Does the prosecutor have a legal obligation to present evidence exculpating the defendant to the grand jury?

Answer 6

No, and this is true even if the jurors ask for it

Question 7

Who can bring a claim if a grandy jury is not inclusive?

Answer 7

A defendant who is indicted by a grand jury from which members of a racial group have been deliberately excluded has standing to raise Equal Protection claims of the excluded racial group, even though the defendant is not a member of the excluded racial group

Question 8

What must the jury find for a judge to impost the death penalty?

Answer 8

At least one aggravating circumstance beyond a reasonable doubt

Question 9

Is evidence gotten from a un-mirandized interrogation admissible

Answer 9

Yes. 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.

Question 10

Can the death penalty be imposed in a felony murder case where the defendant was an accomplice?

Answer 10

Sometimes

The death penalty may not be imposed if the defendant, acting as an accomplice, did not kill, attempt to kill, or intend to kill, unless the defendant significantly participated in the commission of the felony and acted with reckless indifference to human life.

Question 11

When can officers conduct a protective sweep of a home?

Answer 11

only if they have reason to believe that others inside the home may pose a danger to them

Question 12

If a state grants an appeal as of right, must an attorney be provided to an indigent defendant?

Answer 12

Yes

Question 13

Must an appointed attorney advance every non-frivolous claim or appeal urged by defendant?

Answer 13

Yes to appeals, not to claims

For claims attorney may use his professional judgment in determining which claims of error to assert.

Question 14

Are Miranda warnings required if suspect does not know interrogator is police officer?

Answer 14

No

Question 15

What does law enforcement need to demonstrate to justify a warrantless search of a car incident to arrest?

Answer 15

that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee
OR
that it is reasonable that evidence of the offense of arrest might be found in the vehicle.

Question 16

What happens if items are seized under an invalid search warrant

Answer 16

Under the fourth amendment the items will be excluded from the prosecutor’s case

Question 17

Does a prisoner have a reasonable expectation of privacy in their cell?

Answer 17

Generally no, but a pretrial detainee may have a limited expectation

Question 18

Does the fifth amendment only apply to US citizens?

Answer 18

No

Question 19

Can a person who was illegally arrested be subsequently prosecuted?

Answer 19

Yes

Question 20

Can a warrant be based on a triggering condition?

Answer 20

Yes, The probable cause requirement is satisfied where, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Question 21

If a previous out-of-court identification procedure is unnecessarily suggestive can the identifier identify the defendant in court?

Answer 21

Yes, if the eyewitness’s identification is shown to be reliable under a multi-factor inquiry

Question 22

What is required to search a public school student?

Answer 22

• reasonable suspicion that the search will produce evidence that the student is or has violated school rules
• must consider student’s age and gender and the nature of the infraction
• applies to all searches, even strip searches

Question 23

When does double jeopardy attach?

Answer 23

Either when the jury is sworn in or the first witness is sworn in

Question 24

If a jury acquits a defendant of an offense that is a lesser included offense of another offense over which the jury deadlocks, can the prosecution retry the defendant on the greater offense?

Answer 24

No

Question 25

Does a flyover constitute a search under the 4th amendment?

Answer 25

No, as long as it is at least 400 feet above the ground?

Question 26

Is an arrest warrant enough to enter a person’s home?

Answer 26

Yes

Question 27

Is a confession related to an unlawful arrest admissibile?

Answer 27

No, as long as it is too closely tied to the unlawful arrest

Question 28

Once formal proceedings against a defendant have begun, can informants be used to try to get information from them?

Answer 28

No

Question 29

If you have a search warrant for a particular person and then when you show up there is another person there no named, can you search the,?

Answer 29

No, would need independent justification - mere proximity to a named person does not supply such justification.

Question 30

What does the knock rule invalidate?

Answer 30

Arrests not evidence

Question 31

What happens if the court wrongfully denies your choice of counsel and then you choose a different counsel to represent you,

Answer 31

You can get the conviction reversed

Question 32

When does the the sixth amendment attach?

Answer 32

• Critical stages of trial

- When there is a chance of incarceration

Question 33

If an offender is having a hearing on revocation of probation, are they entitled to counsel?

Answer 33

No, unless the trial would be unfair

Question 34

Does the right to counsel apply to lineups?

Answer 34

The right to counsel only applies to post-indictment lineups, not pre

Question 35

Can the defendant be required to disprove an element of an offense?

Answer 35

No, but they can be required to prove affirmative defenses

Question 36

If a presumption unconstitutional in a criminal case?

Answer 36

It is not per se unconstitutional

Question 37

Can un-mirandized statements be used to impeach?

Answer 37

Yes

Question 38

If there is no probable cause to make an arrest during terry stop, what kind of search of the person can the police do?

Answer 38

a pat-down may uncover only items that are immediately obvious as a weapon, contraband, or evidence of a crime (the plain feel exception)

Question 39

Can a court impose a harsher sentence upon retrial of a defendant as penalty for appealing

Answer 39

No

Question 40

When can police re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel?

Answer 40

When there has been a 14-day or more break in custody

Question 41

Does a person have a reasonable expectation of privacy in a open field (like a farm)?

Answer 41

No

Question 42

Once a defendant has asked for an attorney in an interrogation, does an attorney need to be provided right away?

Answer 42

No

Question 43

Can a court disqualify an attorney?

Answer 43

Yes, when there is a serious potential for a conflict of interest even when defendants want to waive the conflict

Question 44

Can a criminal defendant choose to waive a conflict of interest?

Answer 44

Yes, but the court is not required to accept it

Question 45

What are the considerations for whether a location qualifies as curtilage

Answer 45

(i) the proximity of the area to the home, (ii) whether the area is included within an enclosure surrounding the home, (iii) the nature of the uses to which the area is put, and (iv) the steps taken by the resident to protect the area from observation by passersby

Question 46

In what types of trials does a defendant have the right to assistance of counsel?

Answer 46

any trial that results in a sentence of incarceration, even when that sentence is suspended

Question 47

Can police search all personal property of an arrestee?

Answer 47

No, for example they cannot search phone

Question 48

If property is jointly owned by a defendant and a third party, and the defendant is present, does third party consent over defendant’s objection allow police to search?

Answer 48

No

Question 49

Are police required to inform a person from whom consent is sought that she has the right to withhold consent?

Answer 49

No