Criminal Procedure Flashcards
1
Q
What are the two important protections that have not been incorporated to the states via the 14th amendment?
A
The right to indictment by a grand jury for capital and infamous crimes
Unclear if the 8th amendment on the prohibition on excessive bail creates a right to bail in state proceedings
2
Q
What does the 4th amd prohibit?
A
Unreasonable search and seizure (of person and property)
3
Q
What does the 5th amd prohibit?
A
Self incrimination and double jeopardy
4
Q
What does the 6th amendment prohibit?
A
Right to speedy public trial, right to trial by jury, confrontation clause, right to assistance of counsel
5
Q
What does the 8th amd prohibit?
A
cruel and unusual punishment
6
Q
What is a seizure under the 4th amd?
A
any exercise of control by a government agent over a person or thing (e.g. arrests).
Seizure occurs when under the totality of circumstances test a reasonable person would not feel that they were free to decline the officer’s request or otherwise terminate the encounter. Seizure requires a physical application of force or submission to a show of force.
7
Q
What is an arrest?
A
When police take a person into custody against their will for purposes of criminal prosecution or interrogation
8
Q
What threshold must be met for an arrest/station house detention at police station under the 4th amd?
A
Must be based on probable cause (trustworthy facts or knowledge) sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law (totality of the circumstances considered)
But remember, no probable cause needed if suspect consents
9
Q
When is a warrant required for an arrest?
A
Not required in public places
Required for nonemergency arrest of a person in their home
10
Q
An arrest warrant has been issued, can officers enter suspect’s home?
A
Only if there is reason to believe the suspect is within the home
11
Q
An invalid arrest was made - what is the effect on the later proceedings
A
an unlawful arrest (no probable cause at the time it was made) by itself has no impact on any subsequent criminal prosecution
12
Q
What is a terry stop?
A
a brief detention for investigative purposes - no time limit but police must confirm or dispel their suspicion in a “diligent and reasonable manner”
13
Q
What is required to support a terry stop?
What is required for a terry frisk?
A
Articulable and Reasonable suspicion (supported by articulable facts) of criminal activity, involvement in a completed crime
If there is reasonable suspicion that D is armed and dangerous, may frisk for weapons. Can only frisk if officer reasonably thinks the person has a weapon
14
Q
What is reasonable suspicion?
A
More that a vague suspicion or hunch but less than probable cause - judged on the totality of the circumstances
15
Q
What is required for reasonable suspicion to be based on the word of an informant (terry stop context)?
A
there must be indicia of reliability (can be predictive information - “I know there will be drugs coming in on Wednesday”)
16
Q
Police officer asks person their name during a terry stop and they refuse, what now?
What if police find probable cause in the terry stop?
A
Police can arrest
17
Q
What is the terry stop equivalent for property seizure?
A
Brief property seizure is valid if based on reasonable suspicion.
18
Q
When can police stop an automobile?
A
if the police have at least reasonable suspicion to believe that a law has been violated
19
Q
Is a dog sniff during a traffic stop a search?
A
No as long as the police do not extend the stop beyond the time needed to issue the ticket or conduct normal inquiry “sniff is not a search”
20
Q
A dog alerts that there are drugs in a vehicle during a traffic stop. Probable cause?
A
Yes, can search
21
Q
Can police without probable cause use a drug sniffing dog outside the home of a drug dealer?
A
No
22
Q
Does a police officer’s reasonable mistake of law invalidate a seizure?
A
No, as long as it was a reasonable mistake of law
23
Q
When an automobile is stopped, who is seized?
A
all of the occupants of the car (so if the stop was wrongful, all of the occupants have standing to raise the wrongful stop as grounds to exclude the evidence found during the stop)
24
Q
Are checkpoints and “informational roadblocks” constitutional?
A
Yes as long as the purpose is something other than seeking incriminating information about the drivers stopped (if seeking information about another suspect or searching for witnesses, that’s fine)
If special law enforcement needs are involved, SCOTUS allows police officers to set up roadblocks to stop cars without individualized suspicion IF BOTH
1) cars are stopped on some neutral and articulable standard (e.g. every 4th car) AND
2) the roadblock is designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility
25
Can a police officer order the occupants of the car out?
After a lawful stop, yes.
If officer reasonably believes the detainees are armed, the officer may frisk for weapons and search the passenger compartments for weapons (Even after the occupants are out of the car)
26
Is a pretextual stop valid? (police believe buyer violated a traffic law but the police are really more interested in other crimes they think have been committed)
Yes
27
Can the police detain a suspect from going into their home unaccompanied so that they can go get a warrant?
Yes (but remember, need probable cause to get the warrant)
28
Can a warrant to search for contraband also allow police to detain occupants of the premises during the search?
Yes
29
Is a subpoena of someone to testify at a grand jury a seizure under the 4th amd?
No
30
If a police officer uses deadly force to apprehend a subject, has there been a seizure?
When can an officer use deadly force?
Yes
An officer may not use deadly force unless it is reasonable to do so under the circumstances (e.g. when suspect poses a danger to their own life or the lives of others)
31
When does an evidentiary search and seizure have to be supported by a warrant?
Always except in 6 exceptions
1) incidental to constitutional arrest
2) Automobile search
3) Plain View
4) consent
5) stop and frisk
6) Hot pursuit (exigent circumstances, evanescent evidence, emergency aid)
32
What analytical process should you follow if you see a 4th amd evidentiary search or seizure?
1) is there governmental conduct
2) Does D have a 4th amd right (standing)?
3) Did the police officers have a valid warrant? (issued by neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized)
4) If no valid warrant, did one of the 6 exceptions apply?
33
To whom does the 4th amd search and seizure requirement apply to?
government conduct (police or private individuals acting at the direction of the police) - not private conduct (like security guards)
34
When does D have a 4th amd right (evidentiary search and seizure context)
If the search/seizure by the govt that EITHER
(1) concerning a place or thing that D had a reasonable expectation of privacy OR
(2) involving a physical intrusion into a constitutionally protected area to obtain information
35
When does a person have standing to object to a govt search under the 4th amd?
the person must have their own reasonable expectation of privacy with respect to the place searched or item seized - based on the totality of the circumstances but there is automatically a reasonable expectation of privacy whenever EITHER:
1) person owned or had a right to possession of the place searched
2) place search was in fact their home (regardless if they owned or rightly possessed it)
3) person was an overnight guest of the owner the place searched OR
4) person owns the property seized and they have a reasonable expectation of privacy in the item or area searched
36
Does a person have a reasonable expectation of privacy in items they wanted thrown away?
No
37
When does a person NOT have a reasonable expectation of privacy (and thus the person does not have standing to challenge the search)?
Things held out to the public which includes:
1) sound of your voice
2) style of your handwriting
3) paint on the outside of your car
4) account records held by the bank
5) location of your car on a public street or in your driveway
6) anything that can be seen across open fields
7) anything that can be seen from flying over public air space
8) odors of luggage or car or etc
9) garbage set out on the curb for collection (must be on the curb)
38
Is cell-site location information stored by third parties "held out to the public" such that the person lacks a reasonable expectation of privacy and standing to challenge the search?
No - not held out to the public - does have reasonable expectation of privacy
Installation of a GPS on suspect's car is a search
39
If police can look into or listen in on happenings in a private space from afar is that a search?
Yes as long as it is not available for general public use
40
What are the two requirements for a facially valid search warrant?
1) probable cause
| 2) particularity
41
Describe the showing necessary for probable cause for a warrant?
officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officer's conclusions
- affidavit based on informant's tip must meet the "totality of the circumstances test" (reliability and basis for knowledge are relevant - identity does not have to be revealed)
42
How can D defeat a warrant based on an affidavit?
ALL OF:
1) a false statement was included in the affidavit by the affiant (officer)
2) the affiant intentionally or recklessly included the false statemetn
3) the case statement was material to the finding of probable cause (if there was sufficient other evidence, this is not satisfied)
This is a difficult test to meet
43
What happens if a warrant is facially valid but turns out to not be supported by probable cause?
Police can reasonably rely on a facially valid warrant (that they actually obtained) even if it is ultimately found that there is no probable cause and evidence obtained by it can be used by the prosecution
44
Describe the particularity requirement for a warrant?
The warrant must describe with particularity the PLACE to be searched AND the ITEMS to be seized.
If it does not, it is unconstitutional even if the underlying affidavit gives such detail
45
Can a warrant be issued to search the premises of a third party?
Yes as long as there is probable cause to believe that evidence will be found there
46
What is required for a magistrate to be "neutral and detached" for the warrant issuing requirements?
neutral and detached is the best standard we get (but state AG would not be neutral and detached)
47
Who can exercise a warrant?
What is required while exercising a warrant
Scope?
Only the police (no third parties unless third parties are there to identify stolen property) can exercise a warrant and it must be exercised without unreasonable delay
police must knock and announce (unless officer has reasonable expectation that based on the facts announcing would be dangerous, futile, or hinder the investigation. (but violations will not result in suppression of the evidence or property obtained)
Scope limited to what is reasonably necessary to discover the items described in the warrant
48
Persons are on premises at the time a search is conducted pursuant to a warrant. Can they be searched?
If not named in the warrant, they can be detained, but they cannot be searched
Warrant also does not allow officers to stop, detain, or search persons who left the premises shortly before the warrant was executed (but terry stop available under those requirements
49
What should you remember about the "search incident to a constitutional arrest" warrant exception?
- Arrest must actually be constitutional (based on probable cause)
- Police can search the person, protective sweep of the area for accomplices, and areas in wingspan into which they might reach to obtain weapons to destroy evidence or find accomplices
- Search must be "contemporaneous" with the arrest but that does not mean simultaneous (at least with cars) can search car after suspect is in squad car
50
What does the "search incident to a constitutional arrest" warrant exception do in the context of a car?
[Gant Rule] IF at the time of the arrest...
1) Arrestee is unsecured and still may gain access to the interior of the vehicle OR
2) the police reasonably believe that evidence of the offense of which the person is arrested may be found in the vehicle
This does not get into the trunk - just the passenger compartment
51
What is the balancing test for searches incident to arrest of technology that did not exist at the time the 4th amd was written?
SCOTUS balances the degree to which the search incident to arrest intrudes on a person's privacy against the degree to which the search is necessary to legit govt interests
Physical attributes of a cell phone may be searched but not data (b/c data can't be used as a weapon)
52
Is a blood alcohol test a valid search incident to a lawful arrest for DUI?
Breathalyzer yes, blood sample, no
53
What exceptions is related to the warrant exception for search incident to a lawful arrest?
A search incident to incarceration or impoundment - police may take inventory of the arrestee's belongings pursuant to established department procedure - can also take inventory of and impound vehicle (including any containers contained in the vehicle
54
What if police find something they weren't looking for?
As long as the search itself is valid, any evidence/contraband found will be admissible
55
When can police search a car without a warrant under the automobile exception?
if the police have probable cause to believe the vehicle contains fruits, instrumentalities, or evidence of a crime, they can search the ENTIRE vehicle and any container/personal item inside that might reasonably contain the item for which they had probable cause to search (so if looking for a person, can't look in a glove compartment)
Can also tow the vehicle to the station and search it later
56
What happens to the automobile exception if the car is parked in the curtilage (driveway) around suspect's home?
Warrant exception goes away and police must have a warrant
57
What happens to the automobile exception if the car itself is contraband (ie stolen) and is spotted in a public place?
they may seize it from a public place without a warrant
58
Does the automobile exception to the warrant requirement allow the police to search a passenger's belongings also?
Yes
59
The police have probable cause to search a container that was recently placed inside the vehicle - can they also search the entire vehicle?
No - if they only have probable cause for the container, can only search the container - not the entire vehicle
60
Police stop a car without probable cause and then see something that gives them probable cause - can they now search the car under the automobile exception?
Yes - probable cause to search a car can arise after the car is stopped
61
What's the key difference in scope between the search incident to lawful arrest and automobile exception?
Automobile exception allows search of the ENTIRE CAR (including the trunk) while the search incident to a lawful arrest does not
62
When can police make a warrantless seizure under the plain view exception to the warrant requirement?
Police must
1) be legitimately present on the premises
2) discover evidence, fruits, instrumentalities or contraband
3) evidence in plain view
4) have probable cause to believe ("immediately apparent") that the item is evidence, contraband or a fruit or instrumentality of a crime
63
What is the scope of the consent exception to the warrant requirement?
If the consent is voluntary, permission extends to all areas that a reasonable person under the circumstances might believe it extends.
Knowledge of the right to withhold consent is not a prerequisite
64
If the police present a facially valid warrant and you consent to a search and the warrant turns out to subsequently be invalid - is the evidence still admissible because you consented to the search?
No - police saying they have a warrant negates consent
65
Who has the authority to consent to a search by police without a warrant?
Any person with an apparent equal right to use or occupy the property may consent to a search and any evidence found may be used against the other owners or occupants. Officers only have to reasonably believe the person giving consent lives there.
Co-occupant cannot give consent if another co-occupant is present and refuses and the other co-occupant is the subject of the search. If the refusing co-occupant is removed (maybe by arrest) then the police can act on the consent of the remaining co-occupant
66
What is the terry stop and terry frisk exception to the warrant requirement for search?
Terry Stop = brief detention for the purpose of investigating suspicious conduct
Terry Frisk = pat down of outer clothing and both to check for weapons
67
What is the standard to support a terry stop?
| Terry frisk?
Terry stop = articulable facts and reasonable suspicion of criminal activity
Terry frisk = officer reasonable believes the person has weapons
68
What is the permissible scope of a terry frisk?
limited to a pat down of outer clothing unless the officer has specific information that a weapon is hidden in a particular area of the suspect's clothing
During a frisk, officer may reach into clothing and seize any item that the officer reasonably believes based on its "plain feel" is a weapon or contraband (if have to manipulate the feel, it's not plain feel)
69
How does the terry frisk apply in the context of a traffic stop?
if the vehicle is properly stopped for a traffic violation and officer reasonably believes the driver or passenger is armed and dangerous, the officer may
1) conduct a frisk of a suspected person
2) search the vehicle in areas where a weapon may be placed
70
Describe the Evanescent evidence exception to the warrant requirement?
Evanescent evidence is evidence that might disappear quickly if the police take the time to get a warrant
e.g. a police officer can scrape under a suspect's finger nails without getting a warrant because if the officer took the time to get a warrant the defendant might go wash their hands
SCOTUS says police must get a warrant before taking a blood sample for DWI if it is practical to do so.
71
Describe the hot pursuit exception to warrant requirement
Police in hot pursuit (within 15 min) of a fleeing felon may make a warrantless search and seizure and even pursue into a private dwelling.
If misdemeanor, the police must determine if the law enforcement interest justifies a warrantless entry
72
What is the emergency aid or community caretaker exception to the warrant requirement?
Police may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public
73
What is the warrant exception for administrative searches/seizures?
Not a warrant exception at all. Inspectors must have a warrant to search private residences and commercial buildings but probable cause needed is more lenient - only need to show a general and neutral enforcement plan to justify the issuance of a warrant
74
What are some examples of the probable cause sufficient for an administrative search/seizure?
Search for and seize spoiled food
Search and seizure of a business within a highly Regulated industry
Inventory searches of arrestees or their vehicles Pursuant to established dept procedure
Strip searches (even without suspicion) of prisoners
Searches of airline passengers prior to boarding
Random drug tests of any student involved in an extra curricular
75
What is the public school search exception to the warrant requirement?
Who decides if the requirements are met (judge or jury)?
Warrant and probable cause not required for school officials to search students and their possessions - only need reasonable grounds which requires:
1) moderate chance of finding evidence
2) measures adopted to carry out the search that are reasonable related to the objectives of the search
3) search is not excessively intrusive in light of the age and sex of the student and nature of the infraction
All of these elements are determined by the jury
76
Does the 4th amd apply to searches by US officials in foreign countries?
No - at least where the alien does not have a substantial connection to the United States
77
What are the rules fo searches at the border?
Roving patrols inside the US border may stop a vehicle for questioning of occupants if an officer reasonably suspects that the vehicle contains undocumented immigrants. (officials can also stop travelers if reasonable suspicion that they are smuggling drugs in their stomach
Border officials may stop a vehicle at a fixed checkpoint for questioning and disassemble the vehicle even without reasonable suspicion
78
What are the rules for searching international mail?
Postal authorities musts have reasonable cause to suspect that the mail contains contraband
79
Evidence obtained in violation of the 4th amd can be used in a civil deportation hearing
true
80
Is wiretapping/evesdropping a search under the 4th amd?
Yes - need a warrant which requires all of:
1) probable cause
2) suspected persons involved in the conversations to be overheard are named in the warrant
3) warrant describes with particularity the conversations to be overheard
4) limited to short period of time
5) wiretap terminated when the desired information has been obtained
6) return is made to the court showing what conversations have been intercepted
81
If a person talks to an informant who has a recording device, is there a 4th amd claim?
What if the person makes no attempt to keep a conversation private
No "unreliable ear" - speaker assumes the risk that the other person consents to government monitoring or is an infomant
No - "uninvited ear"
82
What is a pen register?
It tracks only the numbers dialed from a phone, not the conversations. No 4th amd concern but a statute requires judicial approval before they may be used
83
What is the standard for excluding evidence obtained in a manner that "shocks the conscience"?
The manner must "offend a sense of justice" and is then inadmissible under the due process clause (e.g. torture)
And any conviction stemming from those actions is unconstitutional
84
What are the areas for scrutiny involving a defendant's confession?
4th, 5th (privilege against compelled self incrimination), 6th (right to counsel), 14th (voluntariness)
85
What does the 14th amd demand of an admissible confession?
The due process clause demands that the admission be VOLUNTARY as determined under the totality of the circumstances (questioning all night long does not yield a voluntary confession)
A confession is involuntary only if there is some official compulsion
86
If an involuntary confession is admitted into evidence, what method of review applies?
Harmless error test - conviction does not have to be overturned if there is other overwhelming evidence of guilt
87
What does the 6th amd demand of an admissible confession?
right to counsel at all critical stages of prosecution after judicial proceedings have begun
Prohibits the police from deliberately eliciting an incriminating statement from a defendant outside of the presence of counsel AFTER D HAS BEEN CHARGED unless D waives right to counsel.
(default is that counsel has to be at all critical stages of the prosecution and that is changed only if D waives)
88
When does D have a right to counsel under the 5th and 6th amds?
6th amd right AFTER D CHARGED - applies regardless if person knows they're talking to the police - Charge specific
5th amd right to counsel under Miranda AFTER ARREST AND BEFORE CHARGES - applies only if person knows they are talking to the police - not charge specific
89
At what stages of the proceedings does D have a right to be represented by counsel (or have counsel appointed for them if indigent)?
```
post indictment interrogation
Perliminary hearings to determine probable cause to prosecute
Arraignment
Post charge lineups
Guilty plea and sentencing
Felony trials
Misdemeanor trials when imprisonment is impose or suspended jail sentence
Overnight recesses during trial
Appeals as a matter of right
```
90
At what stages of the proceedings does D NOT have a right to be represented by counsel (or have counsel appointed for them if indigent)?
Blood sampling
taking of handwriting or voice samples
precharge or investigative lineups
photo identifications
Preliminary hearings to determine probable cause to detain
Brief recesses during the defendant's testimony at trial
discretionary appeals
parole and probation revocation proceedings
Post conviction proceedings
91
What is the scope of conversations prohibited by the 6th amd right to counsel?
What's the difference in 5th and 6th amd rights to counsel
6th amd is offense specific so D can be questioned regarding unrelated uncharged offenses without violating 6th amd (although there might still be 5th amd concerns)
Two offenses are considered to be different if each requries proof of an additional element that the other crime does not require
5th amd is not offense specific (known police officer can't question you on anything) - 6th amd is offense specific (no one can question you on the charges but can ask you about other kinds of cases)
92
What is the standard for a valid waiver of 6th amd right to counsel?
Waiver must be knowing and voluntary (but does not require the presence/advice of counsel)
93
What is the remedy for a violation of 6th amd right to counsel?
Harmless error rule applies if counsel not provided at non trial proceedings
If counsel not provided at trial, then the conviction is automatically reversed. Erroneous DQ of privately retained counsel at trial also results in automatic reversal
94
How can a statement obtained in violation of the 5th amd right (miranda) or the 6th amd right to counsel be used?
not admissible in prosecution's case in chief but is admissible to impeach D's contrary trial testimony
95
What does the 5th amd require of an admission or confession?
Miranda warnings are required in custodial interrogations
Need CUSTODY and INTERROGATION to implicate Miranda (this can come before formal arrest but usually comes after)
96
What is required of a miranda warning?
PRIOR TO INTERROGATION
1) Right to remain silent
2) anything person says can be used against them in court
3) right to an attorney
4) if cannot afford an attorney one will be appointed if they want
Failure to say any of these violates 5th amd right - not 6th amd right (even though they go towards the right to counsel)
97
When is a miranda warning required under the 5th amd?
Anyone in custody of the government and accused of a crime must be given miranda warnings prior to interrogation by the police
Not required for undercover agents
Does not apply to unchanged witness testifying at a grand jury proceeding (Even if witness was compelled by subpoena to be there)
98
What is required for "custody" triggering miranda warnings under the 5th amd?
2 Step Process
1) Freedom of Movement Test (under all circumstances, would a reasonable person feel they were free to terminate the interrogation and leave)
2) Does the environment of the interrogation present the same "inherently coercive pressures" that a station house questioning would involve
99
What is required for "interrogation" triggering miranda warnings under the 5th amd?
Includes any words or conduct by the police that they should know are likely to elicit an INCRIMINATING response (just asking questions is not an interrogation)
unprompted statements and routine booking questions are not in response to an interrogation
100
After receiving Miranda warnings, what are a detainee's options?
1) do nothing (silence is not a waiver or an invocation of rights so police can continue to question)
2) Waive Miranda rights (must be knowing and voluntary based on the totality of the circumstances)
3) assert the right to remain silent (must be unambiguous)
4) assert the right to consult with an attorney (must be unambiguous)
101
If D invokes the 5th amd right to remain silent, what do the police have to do?
"Scrupulously honor" the request by not badgering the detainee
Police can reinitiate questioning after waiting a significant amount of time, re-mirandizing, and limiting questions to a crime that was not the subject of the earlier questioning
102
If D invokes the 5th amd right to counsel, what do the police have to do?
Cease all questioning until counsel provided unless
1) detainee waives right to counsel (maybe by reinitiating questioning)
2) detainee is released from questioning back to their normal life and 14 DAYS have passed
simply allowing D to consult with counsel and then resuming questioning after counsel has left is not enough
103
What's the key difference in police responsible to an invocation of the right to remain silent and the 5th amd right to counsel?
If detainee indicates that they wish to remain silent, police can probably reinitiate questioning on a different crime after a break if fresh warnings administered
If detainee requests counsel, the police may not resume interrogating the detainee until counsel provided or D reinitiates questioning
104
What happens to evidence that is obtained in violation of Miranda?
inadmissible as evidence of guilt under the exclusionary rule
BUT can be used to impeach
105
What is the question first warn later fact pattern and what happens?
If police get a confession before miranda warnings and then get a repeat of that confession after the warnings both of the confessions are excluded if there was a scheme to dodge miranda warnings
But if there was no scheme to dodge miranda and the initial confession and lack of warnings was inadvertently obtained, then the subsequent confession is valid
106
Will subsequent nontestimonial evidence located as a result of information obtained without miranda warnings will that evidence be excluded?
If the failure to give warnings was PURPOSEFUL, then yes, the nontestimonial evidence suppressed
If the failure to give warnings was inadvertent, the evidence will probably not be suppressed (very likely comes in)
107
What is the public safety exception to the 5th amd miranda requirement?
Police can interrogate without Miranda warnings when it was reasonably prompted by a concern for public safety
108
When does D have a right to presence of an attorney at a post-charge identification?
Accused does have a right at a POST CHARGE lineup or showup
Accused does not have a right to counsel at photo identifications or when police take physical evidence such as handwriting samples or fingerprints
109
What is the due process standard for pretrial identifications?
Due process is denied if the identification is "unnecessarily suggestive" and there is a "substantial likelihood of misidentification"
110
Can a defendant invole their 5th amd right against self incrimination to refuse to participate in a lineuo?
No because standing there is not a compusion to give "testimonial" evidence
111
What is the remedy for an improper pretrial identification?
Exclusion of the in court identification UNLESS the in court identification has an independent source - the most common independent source is opportunity to observe at the time of the crime
112
When should the admissibility of an identification be determined?
What must be proven to admit an ID? Who bears the burden?
at a suppression hearing in the absence of a jury (but absence of the jury not constitutionally required)
To admit an ID, government bears the burden of proving one of EITHER:
1) counsel was present
2) accused waived right to counsel
3) there is an independent source for the in court identification.
D must prove an alleged due process violation (unnecessarily suggestive lineup)
113
What is the exclusionary rule?
Judge made rule that prohibits the admission of evidence obtained in violation defendant's of 4th, 5th, or 6th amd rights
114
What is the fruit of the poisonous tree doctrine?
Excludes all of the evidence obtained from exploitation of the unconstitutionally procured evidence UNLESS the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct
115
What are exceptions to the fruit of the poisonous tree doctrine?
1) fruits derived from statements obtained in violation of miranda
2) evidence obtained from a source independent of the original illegality
3) the link between the unconstitutional police conduct and the evidence is remote or the causal link is otherwise too "attenuated" (INTERVENING ACTS OF FREEWILL OF DEFENDANT can be intervening to break the chain)
4) Inevitable discovery
5) violations of the knock and announce rule
116
Can D get live witness testimony excluded on exclusionary rule grounds?
Can D get a witness's in court identification excluded on grounds that it is the fruit of an unlawful detention?
Can D get an out of court ID excluded on due process grounds?
Likely no
No
Only if the unnecessarily suggestive circumstances were arranged by the police
117
What kinds of proceedings does the exclusionary rule NOT apply to?
1) grand juries (but exclusionary rule applies for violations of federal wire tapping statutes)
2) civil proceedings
3) evidence obtained only in violation of state law or internal agency rules
5) parole revocation proceedings
118
When is the "good faith" exception to the exclusionary rule?
If police arrest someone erroneously but in good faith thinking that they were acting pursuant to a valid arrest/search warrant or law then the exclusionary rule does not apply. BUT exclusionary rule does apply (regardless of good faith) IF:
1) affidavit underlying the warrant is so lacking in probable cause or particularity that no reasonable officer would have relied on it
2) Police officer or prosecutor lied to or misled the magistrate when seeking the warrant
3) Magistrate is biased and therefore has wholly abandoned their neutrality
119
When can improperly obtained evidence be used to impeach?
IF EITHER:
- a voluntary confession obtained in violation of Miranda warnings admissible to impeach anyone
- evidence obtained from an illegal search (only to impeach D)
(but evidence obtained in violation of the knock and announce rule is admissible for all purposes)
120
When does the harmless error test apply?
When illegally obtained evidence is admitted, a conviction should be overturned on appeal unless the THE GOVERNMENT CAN PROVE beyond a reasonable doubt that the error was harmless
121
When should a habeas peitioner be released?
if the petitioner can show that constitutional error had a substantial and injurious effect or influence in determining the jury's verdict (if the judge is in grade doubt as to the harm, the petition must be granted)
122
When does the harmless error test NOT apply (and reversal is required)
denial of right to counsel AT TRIAL
123
How can defendant enforce the exclusionary rule?
D can have the admissibility of evidence decided as a matter of law by a judge outside of the presence of the jury. GOVERNMENT must prove admissibility by a preponderance of the evidence.
D has a right to testify at the suppression hearing without their testimony being admitted against them at trial on the issue of guilt
124
What are the three "IN"s for the most frequently tested exceptions to the fruit of the poisonous tree doctrine
1) Independent source
2) Intervening act of free will
3) Inevitable discovery
125
When is a preliminary hearing to determine probable cause to detain required?
When probable cause has not previously been determined (e.g. in a warrant or grand jury indictment) AND there will be significant restraints on arrestee's liberty (for example, jail or bail)
Must be within 48 hours - the hearing is informal and nonadversarial
126
What is the remedy for failure to hold a preliminary hearing to determine probable cause to detain?
No real remedy for denial of the hearing, but evidence discovered as a result of the wrongful detention can be excluded under the exclusionary rule
127
What is the right to bail?
Most state constitutions give the right to bail and it can be set no higher than is necessary to assure of Ds appearance at trial. Refusal to grant bail or setting of excessive bail may be appealed immediately. But SCOTUS has upheld refusals of bail if arrestee would pose a danger or would fail to appear at trial..
SCOTUS has never held that 8th amd right to bail applies to the states, but if a state arbitrarily denies bail then that violates due process
128
What is the standard for commitment and release of defendants incompetent to stand trial? What constitutional provision backstops this?
Must be the same for criminal defendants as for all others otherwise there will be a denial of equal protection
129
Has the right to grand jury indictment been applied to the states?
No (5th amd right to grand jury indictment has not been incorporated to the states via the 14th amd)
130
What are defendant's right in a grand jury context?
Since they are conducted in secret, there is no right to notice that a grand jury proceeding is considering an indictment of them
131
What are the rights of witnesses called to testify before a grand jury?
No right to counsel and no right to Miranda warnings. A witness can consult with a lawyer outside of the jury room but no right to counsel inside the jury room (even if W brings his own lawyer)
D must appear if called to testify but can refuse to answer specific questions on the grounds that they may incriminate them. D doesn't have a right to have counsel provided or bring his own counsel into the grand jury room.
132
Does the exclusionary rule apply to grand jury proceedings?
NO and there is no right to challenge a subpoena on 4th amd grounds saying there is no probable cause
133
What is the only defect sufficient to quash a grand jury indictment?
if the grand jury was forced to the exclusion of members of a minority group - if this is the case, a resulting conviction will be reversed without regard to the harmlessness
134
How is it determined if a defendants 6th amd right to a speedy trial is violated?
What is the remedy?
Totality of the circumstances with relevant factors including LENGTH of delay, REASON for delay, whether defendant ASSERTED their right, PREJUDICE to the defendant
Remedy: dismissal with prejudice
135
When does the right to a speedy trial attach?
When the defendant has been arrested or charged. (regardless if D knows of the charges).
If D is changed and incarcerated in another jurisdiction, reasonable efforts must be used to obtain the presence of the defendant
Simply under investigation does not cause the right to attach, but it is a violation of a right to speedy trial for the prosecution to indefinitely suspend charges
136
Govt has a duty to disclose material exculpatory evidence to the defendant [Brady Rule] - failure to disclose such evidence (regardless if willful OR INADVERTENT) violates _____.
What is the remedy and what must D prove to get it
The due process clause
The remedy is reversal of the conviction IF D can prove BOTH:
1) the evidence is favorable to the defendant because it either impeaches or is exculpatory
2) prejudice has resulted (reasonable probability that the outcome would have been different if the undisclosed evidence had been presented at trial)
137
What defenses does a criminal defendant have to give notice of?
How does notice have to be given?
Notice required if alibi or insanity defense
Alibi: D must give P a list of their witnesses (and P must give D a list of rebuttal witnesses). P cannot comment at trial about the failure to provide a witness named as supportign an alibi or on failure to present an alibi
138
What is the difference in being incompetent to stand trial and being insane?
Insanity is a defense to a crime based on mental state at the time the crime was committed (if acquitted buy reason of insanity, cannot be retried)
Incompetency is not a defense to the charge but is a bar to trial based on mental condition at the time of trial (if D regains competency, can be tried then)
139
When is a defendant incompetent to stand trial?
What constitutional provision backstops this?
Who has the burden of proving incompetence?
If no one else raises the issue, does the judge have to?
D is incompetent to stand trial if either
1) lacks a rational as well as factual understanding of the charges and proceedings
2) lacks sufficient present ability to consult with their lawyer with a reasonable degree of understanding
Due Process
State can place the burden of proving incompetence on the defendant by a preponderance of evidence but cannot set a clear and convincing burden
Yes, the judge has to even if the incompetent person is represented and their counsel chooses not to raise it. If judge does not raise it, the issue can be brought up later
140
What is the result of excessive pretrial publicity?
excessive pretrial publicity that is prejudicial to the defendant may require a change of venue or retrial
141
What amendment is the right a speedy trial in?
6th
142
What is the order of arguments in a criminal trial?
Prosecution opens, Defense opens
Government closes, Defense closes, Government rebuts
143
What amendments guarantee the right to a public trial?
6th and 14th
144
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What does the right to a public trial under the 6th and 14th amds guarantee at the following stages...
Probable cause hearing
Pretrial Suppression Hearing
Jury Voir Dire
Trial itself
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Probable Cause Hearing - presumptively open to the public and press
Pretrial Suppression Hearing - presumptively open to the public and press but can be closed if the party seeking closure has an overriding interest likely to be prejudiced by disclosure and there are no reasonable alternatives
Jury Voir Dire - make "every reasonable effort" to accommodate public attendance
At trial itself, press and public have a right to attend even if both parties agree to close it
145
When is due process violate due to a biased judge?
If the judge has actual malice or has a financial interest in having the trial result in a guilty verdict OR when the judge had significant personal involvement as a prosecutor in a critical decision regarding defendant's case
It is not actual malice for a judge to tell a defendant to not come back
146
Must the judge be a lawyer?
If it is a less serious crime where there is a right to appeal for a de novo trial by a lawyer judge, then no
Otherwise, judge must be a lawyer
147
Can the state compel the defendant to stand trial in prison clothing or while visibly shackled?
No - that violates due process (unless legit concern about courtroom security)
148
The police destroy items that might be exculpatory evidence - is a constitutional right violated?
Due process does not require the police preserve all items that might be exculpatory but does prohibit bad faith destruction
149
When is there a right to trial by jury?
Only for serious offenses which means imprisonment of more than 6 months is authorized (judge can summarily impose contempt during trial for more than 6 mo of confinement without a jury trial)
No right to jury trial in juvenile delinquency proceedings
150
What is required for number and agreement among jurors?
Must be at least 6 and verdicts must be unanimous
151
What is the right to diversity in the jury?
No right to proportional representation of all groups on a particular jury but if D shows that there is underrepresentation of a numerically significant group in the venire, right to jury trial is violated
152
Can peremptory challenges be used for racial and gender based discrimination?
Violates equal protection clause to use peremptory challenges to exclude potential jurors solely on the basis of race or gender.
3 Step process to challenge a peremptry challenge as discriminatory:
1) D must show facts and circumstances that raise an inference that the exclusion was base don race or gender
2) upon such a showing prosecutor must produce a race-neutral explanation (even unreasonable explanation is fine as long as race neutral)
3) Judge determines whether the prosecutor's explanation was the genuine reason for striking the juror - if judge believe prosecutor is sincere, strike may be upheld
153
When should a juror be excluded for cause?
When the juror's views (including relationship with defendant) would prevent or substantially impair the performance of their duties in accordance with the instructions and the oath
154
When can the defendant question about racial bias on voir dire?
Whenever race is bound up in the case or the defendant is accused of an interracial capital crime
155
Can a state automatically exclude any juror opposed to the death penalty from a capital case?
No, judge must determine whether the juror's views would prevent or substantially impair performance of their duties in accordance with their instructions and oath..
If juror is improperly excluded, the conviction is subject to automatic reversal
156
If a juror says they would automatically give the death penalty upon a guilty verdict what would the result be?
The juror must be excluded for cause because that view would substantially impair performance of their duties in accordance with their instructions and oath
157
What happens if a defendant uses a peremptory challenge to remove a juror that the court should have removed for cause but didnt?
No constitutional violation
158
What happens if a jury renders inconsistent verdicts? (e.g. defendant and co-defendant get different verdicts on the same evidence)
Nothing - Not reviewable
159
What is sentence enhancement?
What is required?
Sentence enhancement is when additional punishment may be imposed beyond the statutory maximum if additional facts are proved.
Those additional facts must be presented to the jury and proved beyond a reasonable doubt.
Same rule applies for setting the amount on a fine
160
Can a judge decide if sentences will run concurrently without the input of the jury?
Yes - this is in contrast with sentence enhancement
161
When is defendant's waiver of right to counsel at trial valid?
Can D go pro se on appeal?
If the judge determines that the waiver is "knowing and intelligent" and (based on the judges appraisal of the defendant's emotional and phsychological state) D is competent to proceed pro se
No right to self represent on appeal
162
What is required for "effective" assistance of counsel?
Effectiveness is presumed, and to prove ineffective assistance of counsel, D must prove BOTH:
1) Deficient performance by counsel (need specific definiencies - beyond just inexperience or lack of time to prepare) AND
2) but for the deficiency the result of the proceeding would have been different
163
What are 2x bright line rules for counsel to be deemed ineffective?
If counsel admits their client's guilt while defendant has clearly articulated a desire to maintain innocence (reversal and new trial required with no need to show prejudice)
Counsel does not inform a client whether a plea carries a risk of deportation
164
What does an ineffective assistance of counsel claim look like in the plea bargain context?
Atty's failure to communicate a plea offer is ineffective assistance of counsel if D can prove BOTH (1) had the plea agreement been communicated, D would likely have accepted and (2) the plea likely would have been entered without the prosecutor's canceling it
Later fair trail does not cure
165
Is joint representation of co-defendants a violation of the 6th amd?
Is there a right to be represented jointly if you want to?
No, but if defense counsel advises the court of a conflict of interest at or before trial and the court refuses to appoint separate counsel, D is entitled to automatic reversal BUT D's conflict of interest with attorney is not a ground for relief
No if the government can show a potential conflict of interest
166
What are appropriate limitations on right to consult with attorney during trial?
No right to consult while testifying and no right to consult during short breaks like 15 min (can be sequestered)
167
What is the rule for co-defendant confessions?
If twp defendants are tried together and one has given a confession that implicates the other the right of confrontation under the 6th amd prohibits the use of that confession even where the confession interlocks with D's own admitted confession
BUT co-d's confession is admitted IF EITHER
1) All portions referring to the other defendant can be eliminated
2) confessing defendant takes the stand and subjects himself to cross examination with respect to the truth or falsity of the confession OR
3) the confession of the nontestifying co-d is being used to rebut the D's claim that their confession was obtained coercively (and limiting instruction accordingly)
168
When is a prior testimonial statement admissible against defendant despite the confrontation clause?
If the declarant is unavailable and D had an opportunity to cross examine the declarant at the time the statement was made
169
Are the results of forensic lab tests subject to the confrontation clause?
When offered to prove the truth of the matter asserted, yes
BUT if the lab test results are not offered for their truth, no conf clause concern (e.g. results from a private lab are offered to prove that the result matches the state lab and not for their truth)
170
What is the forfeiture by wrongdoing exception to the confrontation clause?
The wrongdoing must be intended to keep the witness from testifying (e.g. must have killed them to keep them quiet not out of rage, etc)
171
What does a judge have to determine to accept a guilty plea?
Must determine that it is VOLUNTARY and INTELLIGENT which must be done by addressing defendant in open court on the record. Judge must make sure defendant knows thing like:
1) nature of the charge and its critical elements
2) max penalty and mandatory min
3) that D has the right to not plead guilty and that if they plea guilty they forfeit the right to a trial (b/c guilty plea is a waiver of 6A right to jury trial)
*Judge doesn't have to explain all of this if the record reflects that counsel has informed D of all of this
172
What is the remedy if the judge accepts a guilty plea that is not voluntary and intelligent?
remedy for failure to meet the standards for taking a plea is withdraw of the plea and a new pleading
173
How can a plea be later set aside (ie what are methods of collateral attack on a guilty plea)?
1) involuntariness (failure to make sure D was properly informed when plea was given)
2) lack of jurisdiction
3) ineffective assistance of counsel
4) prosecutor's failure to keep the plea bargain
BUT if the plea was an intelligent choice from among defendant's alternatives, it is immune from collateral attack
174
Who is a plea bargain enforced against?
A plea bargain can be enforced against the prosecution and the defense but not against the judge who does not have to accept the plea
175
Can a guilty plea be later used as a conviction against D in later trials or as a basis for sentence enhancement?
Yes
But a guilty plea does not admit the legality of incriminating evidence and does not waive the right for D to sue for damages in a civil suit
176
What are defendant's rights (and lack of rights) during sentencing?
D has right to counsel
D has no right to confrontation or cross examination
(But if a magnified sentence requires new facts to be found, confrontation and cross are required)
D in a capital case must get more of a right to cross than other defendants at sentencing
177
Can a judge impose a greater sentence on a criminal D who is retried and reconvicted after a successful appeal?
Yes, but the judge has to give reasons for the harsher sentence (to make sure D is not vindictively punished for exercising right to appeal)
178
What violates the 8th amd prohbition on cruel and unusual punishment?
if the penalty is grossly disproportionate to the seriousness of the offense committed
179
What are the requirements for imposing the death penalty in a murder case?
CLEAR statutory scheme must give the jury reasonable discretion, full information concerning defendants, and guidance in making the decision - all mitigating evidence must be available for consideration
A death sentence affected by a vague or other unconstitutional factor can still be upheld only if all aggravating and mitigating factors involved are reweighed and death still found to be appropriate
180
Can death be imposed as a penalty for rape?
No as long as did not result in death
181
Can death be imposed for felony murder?
No unless the felony murder's participation was major and they acted with reckless indifference to the value of human life
182
Can death be imposed on an insane or intellectually disabled person?
No, cannot execute a mentally insane/disabled person even if they were sane/able at the time the act was committed
183
Are status crimes valid under the constituion?
No - violates the 8th amd because it punishes only the propensity to engage in crime
184
What are the 8th amd limitations on death and life sentences for minors.
No death sentence if under 18 at time the act was committed
No life without possibility of parole if non-homicide crime
No mandatory life without parole for minors even if it's a homicide crime
185
Can the trial judge consider the suspicion that defendant committed perjury during the trial?
Yes
186
What constitutional provision makes it unconstitutional to imprison indigents for failure to pay fines or court costs?
Equal protection
187
Is there a federal constitutional right to an appeal?
No
188
What is the defendant's right to counsel on appeal?
Equal protection requires that indigents be given counsel in an appeal granted as a matter of right and for appeals of guilty pleas and nolo contendere pleas
189
What happens if a defendant's appeal is no longer available (or has been unsuccessful) and D wants to continue the fight?
What is the burden of proof
Can attack collaterally with a habeas corpus proceeding - no right to appointed counsel - petitioner has the burden of proof by a preponderance of evidence to show an unlawful detention. (habeas is a civil proceeding)
Defendant can only bring a habeas petition if D is in custody. State can appeal the grant of habeas.
190
What is D's right to counsel when probation is revoked?
If probation is revoked and a NEW sentence is imposed, D is entitled to counsel in all cases in which they were entitled to counsel at trial
If probation is revoked and an old sentence springs back, right to counsel only if necessary* for a fair hearing
If parole is revoked, right to counsel only if necessary* for a fair hearing
*Necessary for a fair hearing if D denies the alleged facts or if the issues are difficult to present or develop
191
When do prison regulations impinge on due process rights?
only if the regulations impose a "atypical and significant hardship" in relation to the ordinary incidents of prison life
192
Do defendants have 4th amd protection in their cells?
No - no right to privacy, so no 4th amd protection
193
To what extent can a prisoner's 1A rights be burdened?
| What about regulations on mail?
If the regulations are reasonably related to penological interests
Incoming mail can be broadly regulated but outgoing mail cannot
194
What amendment governs double jeopardy? what does it guarantee?
Under the 5th amd, cannot be retried for the same offense once jeopardy attached
195
When does jeopardy attach?
What is the rule for juvenile proceedings?
In a jury trial, when the jury is empaneled and sworn in
In a bench trial, when the first witness is sworn in
Jeopardy never attaches in a civil trial
A juvenile proceeding bars a subsequent criminal trial for the same offense
196
What are exceptions to the 5th amd's double jeopardy rule?
1) First trial ends in a hung jury
2) a trial may be discontinued and D reprosecuted for the same offense if there is "manifest necessity" to abort the trial OR when termination occurs at the behest of the defendant on any ground not constituting acquittal on the merits [Medical emergency is the big one]
3) successfully appeal of a conviction unless the ground for reversal was insufficient evidence. Retrial is allowed if reversal is based on weight rather than sufficiency of the evidence
4) charges can be reinstated if D violates a plea bargain
5) if D could have been tried for multiple charges in a single trial but D elects/consents to have separate trials, jeopardy does not attach to the first trial for the other charges
197
D successfully appealed and is retried because reversal was based on weight of evidence and not sufficiency -what are the limitations on the retrial
Cannot be charged with a greater crime on retrial than D was convicted of at first trial (so if round1, D was charged with murder and convicted of manslaughter, the worst D can be charged with round2 is manslaughter)
Harsher sentence can be imposed for reasons other than vindictiveness
If Death found to not be appropriate at the first trial, then death cannot be sought at the second trial
Remember this only applies on appeal!!
198
How can you tell if offenses are the same for purposes of double jeopardy?
Crimes are the same unless each crime requires proof of an additional element that the other does not (even if some common facts are involved)
Attachment of jeopardy for a greater offense bars retrial for a lesser included offense AND VICE VERSA
199
Can multiple punishments be imposed on crimes that are considered the same for double jeopardy purposes?
Yes, if there was legislative intent to have cumulative punishments and as long as it's done at the same trial
200
What is an exception to the double jeopardy bar on charging with a greater offense after jeopardy has attached for the lesser offense?
Can charge with the greater offense after jeopardy has attached for the lesser offense IF the conduct subsequently used to prove the greater offense EITHER
1) had not occurred at the time of the prosecution for the lesser offense OR
2) the conduct had not been discovered despite due diligence
(and can be retried for murder of V dies after jeopardy has attached for battery)
201
How does double jeopardy apply for conduct that was previously used as a sentencing enhancer?
The double jeopardy clause is not violated when a person is indicted for a crime the conduct of which was already used to enhance the defendant's sentence for another crime
202
What are the three questions to ask in a double jeopardy analysis?
1) Is D charged with 2 crimes based on the SAME CONDUCT?
2) Did the legislature CLEARLY intend to allow conviction of both crimes based on the same conduct
3) Does each crime require proof of an additional fact that the other does not?
203
The double jeopardy clause never prevents subsequent civil actions
If D is tried for murder and convicted of manslaughter and the conviction is reversed on appeal on a procedural technicality, what can the prosecution do now?
true
Can retry D but only for manslaughter. D cannot be retried for a greater crime than he was convicted of the first time around
204
Does double jeopardy prevent trials by separate sovereigns?
No (can be tried by the state and federal government or by two states - but can't be tried by a state and a municipality because that's the same sovereign) Attachment doesn't matter if there are two separate sovereigns
205
What is collateral estoppel in the context of double jeopardy?
A defendant cannot be tried or convicted of a crime if a prior prosecution by that sovereign resulted in a factual determination inconsistent with one required for conviction
206
Who can assert the 5th amd privilege and in what type of case can they assert it?
Any natural person (not corps or partnerships) can assert it in any type of case as long as the answer might tend to incriminate THEM (it's a personal privilege)
207
What is the relationship between taking the 5th in a civil proceeding and a criminal proceeding?
A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to incriminate them, BUT if they waive privilege and answer a question in a civil case they cannot assert privilege to avoid testifying to that fact in a later criminal case
208
What are the mechanics of invoking the 5th amd privilege?
Criminal defendant has a right not to take the stand and be asked questions, but in all other situations the person can be sworn as a witness and asked questions and must specifically invoke privilege in response to each one
209
What kinds of evidence does the 5th amd privilege against self incrimination protect?
COMPELLED testimonial/communicative evidence (forced to speak) - not real/physical evidence (including document production)
If defendant created a document or says something of their own freewill, it is not compelled.
For a suspect's communication to be considered testimonial must relate a factual assertion or disclose information. Non-testimonial evidence includes blood/handwriting/voice/hair/DNA samples and lineups
210
When does a violation of the self-incrimination clause occur?
When a person's compelled statements are used against them in a criminal case
211
What comments can be made by the judge or prosecution on defendant's taking the 5th or choosing not to testify?
Prosecutor cannot comment on silence at trial or after Miranda warnings but prosecutor can comment on silence before Miranda warnings were ever read (but if D counsel asserts D was not allowed to explain their side of the story, then P can respond by pointing out that D could take the stand)
Judge can unilaterally include an instruction to the jury that they cannot draw an adverse inference from D's decision not to testify
212
What's the rule on collection of a DNA swab - does it vioalte 4th or 5th amd?
Can take a DNA swab after arrest for a serious crime
213
If prosecution impermissibily comments on defendant's silence, what standard of review applies?
the harmless error standard
214
When is the 5th amd privilege against self incrimination eliminated?
When immunity is granted or "use and derivative use" immunity (guarantees that the witness's testimony and evidence located by means of the testimony will not be used against the witness)
use and derivative use immunity does not prevent later prosecution using different (or the same) evidence if derived from an independent source
215
Can testimony obtained by promise of immunity (as a way to dodge 5th amd privilege) be used to impeach D later?
No because testimony obtained by a promise of immunity is coerced and therefore involuntary
216
Can testimony obtained by one sovereign's promise of immunity to dodge 5th amd privilege be subsequently used by another sovereign?
No
217
A criminal defendant takes the stand - to what extent has he waived privilege?
waives privilege to the extent they disclose incriminating information and only to the extent necessary for cross examination
218
What rights are guaranteed to a juvenile at a delinquency proceeding?
1) written notice of the charges
2) assistance of counsel
3) opportunity to confront and cross examine witnesses
4) the right not to testify
5) the right to have guilt established by proof beyond a reasonable doubt
219
Do juveniles have a right to trial by jury in deliquency proceedings?
No
220
When is pretrial detention of a juvenile allowed?
Where it is found that the juvenile is a serious risk to society and the detention is for a strictly limited time before the trial is held
221
Is an action for forfeiture a criminal action? Who is the defendant?
Quasi criminal
The action for forfeiture is brought against the property itself
222
When is the owner of property entitled to a hearing?
NOT entitled to notice and hearing before the property is seized (unless real property and the govt has no exigent circumstance to justify immediate seizure)
Hearing is required before final forfeiture of the property
223
What is the scope of the excessive fines clause of the 8th amd?
What does the excessive fines clause guarantee?
Only applies to fines imposed as punishment - does not apply to civil fines
Prohibits penal/criminal fines that are "excessive" and a fine is excessive it is "grossly disproportionate" to the gravity of the offense
224
What is "innocent owner" protection under the 8th amd excessive fines clause?
IT DOES NOT EXIST -there is no protection for innocent owners of property who voluntarily entrust their property to a wrongdoer even if they took all reasonable steps to avoid having their property used for illegal purposes
225
Does being a passenger in someone else's car give them a reasonable expectation of privacy in a search of that person's car for 4th amd purposes?
No, so no standing to raise improper search. BUT each passenger does have standing to challenge the stop itself as improper
226
D assaults V and flees to Friends house. Police get an arrest warrant for D, go and kick down Friend's door and arrest D. Is there a 4th amd violation?
4th amd violation in searching Friend's house without a warrant, but if D is not an overnight guest of Friend, then D does not have standing to object.
227
Is an anonymous tip alone enough to stop and frisk a suspect?
No - need reasonable suspicion supported by articulable facts
228
Does a person have a reasonable expectation of privacy in their yard or acreage on which their home sits?
Only the curtilage around the home. If it's just a field out away from the house, the police can cut barbed wire and trespass to take a look around without a warrant because there is no reasonable expectation of privacy
229
What is the extent of D's right to have counsel present at a lineup?
No right pre-charged
| Right for counsel to be present during the entire lineup post charge
230
Who has the burden of proof in a criminal case?
Prosecution to prove each element of its case, but the burden can be on D to prove affirmative defenses.
