Criminal Procedure Flashcards
Is an anonymous tip enough to support a search warrant?
No, you need a statement under oath or an affidavit
May a police officer seize an item in plaint view if it was not named in the search warrant?
Yes, as long as the officer is on the premises for a lawful purpose and the incriminating nature of the item is immediately apparent.
Can police search a vehicle without a warrant.
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.
If there is a long break during interrogation does Miranda need to be read again?
Yes
Is the sixth amendment situation specific?
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
Does the prosecutor have a legal obligation to present evidence exculpating the defendant to the grand jury?
No, and this is true even if the jurors ask for it
Who can bring a claim if a grandy jury is not inclusive?
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
What must the jury find for a judge to impost the death penalty?
At least one aggravating circumstance beyond a reasonable doubt
Is evidence gotten from a un-mirandized interrogation admissible
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.
Can the death penalty be imposed in a felony murder case where the defendant was an accomplice?
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.
When can officers conduct a protective sweep of a home?
only if they have reason to believe that others inside the home may pose a danger to them
If a state grants an appeal as of right, must an attorney be provided to an indigent defendant?
Yes
Must an appointed attorney advance every non-frivolous claim or appeal urged by defendant?
Yes to appeals, not to claims
For claims attorney may use his professional judgment in determining which claims of error to assert.
Are Miranda warnings required if suspect does not know interrogator is police officer?
No
What does law enforcement need to demonstrate to justify a warrantless search of a car incident to arrest?
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.
What happens if items are seized under an invalid search warrant
Under the fourth amendment the items will be excluded from the prosecutor’s case
Does a prisoner have a reasonable expectation of privacy in their cell?
Generally no, but a pretrial detainee may have a limited expectation
Does the fifth amendment only apply to US citizens?
No
Can a person who was illegally arrested be subsequently prosecuted?
Yes
Can a warrant be based on a triggering condition?
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.
If a previous out-of-court identification procedure is unnecessarily suggestive can the identifier identify the defendant in court?
Yes, if the eyewitness’s identification is shown to be reliable under a multi-factor inquiry
What is required to search a public school student?
- 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
When does double jeopardy attach?
Either when the jury is sworn in or the first witness is sworn in
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?
No
Does a flyover constitute a search under the 4th amendment?
No, as long as it is at least 400 feet above the ground?
Is an arrest warrant enough to enter a person’s home?
Yes
Is a confession related to an unlawful arrest admissibile?
No, as long as it is too closely tied to the unlawful arrest
Once formal proceedings against a defendant have begun, can informants be used to try to get information from them?
No
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,?
No, would need independent justification - mere proximity to a named person does not supply such justification.
What does the knock rule invalidate?
Arrests not evidence
What happens if the court wrongfully denies your choice of counsel and then you choose a different counsel to represent you,
You can get the conviction reversed
When does the the sixth amendment attach?
- Critical stages of trial
- When there is a chance of incarceration
If an offender is having a hearing on revocation of probation, are they entitled to counsel?
No, unless the trial would be unfair
Does the right to counsel apply to lineups?
The right to counsel only applies to post-indictment lineups, not pre
Can the defendant be required to disprove an element of an offense?
No, but they can be required to prove affirmative defenses
If a presumption unconstitutional in a criminal case?
It is not per se unconstitutional
Can un-mirandized statements be used to impeach?
Yes
If there is no probable cause to make an arrest during terry stop, what kind of search of the person can the police do?
a pat-down may uncover only items that are immediately obvious as a weapon, contraband, or evidence of a crime (the plain feel exception)
Can a court impose a harsher sentence upon retrial of a defendant as penalty for appealing
No
When can police re-open interrogation of a suspect who has asserted his Fifth Amendment right to counsel?
When there has been a 14-day or more break in custody
Does a person have a reasonable expectation of privacy in a open field (like a farm)?
No
Once a defendant has asked for an attorney in an interrogation, does an attorney need to be provided right away?
No
Can a court disqualify an attorney?
Yes, when there is a serious potential for a conflict of interest even when defendants want to waive the conflict
Can a criminal defendant choose to waive a conflict of interest?
Yes, but the court is not required to accept it
What are the considerations for whether a location qualifies as curtilage
(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
In what types of trials does a defendant have the right to assistance of counsel?
any trial that results in a sentence of incarceration, even when that sentence is suspended
Can police search all personal property of an arrestee?
No, for example they cannot search phone
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?
No
Are police required to inform a person from whom consent is sought that she has the right to withhold consent?
No
