Criminal Procedure Flashcards
What is the effect on a case when there’s a violation of the 4th amendment?
Only suppresses E obtained as a result of that violation. DOESN’T DISMISS CASE
What does 4th Amendment protect?
Against unreasonable search and seizure
When may cops arrest someone w/o a warrant?
When they have PC to believe person committed a crime
What is PC for an arrest?
Trustworthy facts or knowledge sufficient for a reasonable person to believe that a suspect has committed or is committing a crime for which arrest is authorized by law.
Based on TOTALITY OF CIRCUMSTANCES
When is a warrant required for an arrest?
Generally must have one for nonemergency arrest in a person’s home.
What are the warrantless search exceptions?
- Incident to constitutional arrest
- Automobile search
- Plain View
- Consent
- Stop and Frisk
- Exigent Circumstances; Hot Pursuit; Emergency Aid
[I’M A PC SUBJECT EXPERT]
Search Incident to Constitutional Arrest
Must be CONSTITUTIONAL arrest (PC that crime committed)
Police may search person and areas into which he might reach to obtain weapons or destroy E
Search Incident to Arrest - Car Exception
Police may search PASSENGER COMPARTMENT of car INCIDENT TO ARREST ONLY IF AT TIME OF SEARCH
UNLESS, cops have PC that a vehicle contains fruits, instrumentalities, or evidence of a crime –> then may search entire vehicle and any container that might RSNy contain the item
Automobile Exception for Warrantless Search
If police have PC that vehicle has E of a crime, they may search the WHOLE vehicle
UNLESS, car parked in CURTILAGE of one’s home
Plain View Exception for Warrantless Search
When police:
- Are LEGITIMATELY ON THE PREMISES,
- DISCOVER E/fruits or instrumentalities of a crime/or contraband
- See such E in PLAIN VIEW
- Have PC to believe (IMMEDIATELY APPARENT) that item is E/contraband/fruit or instrumentality of a crime
Consent Exception for Warrantless Search
Police must have VOLUNTARY CONSENT.
Knowledge of right to w/h consent NOT REQUIRED
Scope of search limited by scope of consent.
Extends to anyone w/ APPARENT EQUAL RIGHT to use or occupy property
Stop and Frisk Exception for Warrantless Search
Cop may STOP a person w/o PC for arrest if she has ARTICULABLE AND REASONABLE SUSPICION of criminal activity
May FRISK person if officer REASONABLY THINKS suspect has a WEAPON
What’s the extent of a frisk in stop and frisk?
Cop may pat down outer clothing, unless he has specific info that weapon is hidden in particular area of clothing.
Stop and Frisk: When may officer reach into suspect’s clothing (PLAIN FEEL DOCTRINE)?
When officer REASONABLY BELIEVES, based on PLAIN FEEL, that there’s a WEAPON OR CONTRABAND
Exigent Circumstances, Hot Pursuit, Evanescent E, and Emergency Aid Exceptions to Warrantless Search
Cops in hot pursuit of FLEEING FELON may make warrantless Sh&Sz & enter private dwelling
May enter a home w/o WRT under Exigent Circumstances (destruction of E)
When is Miranda warning required?
When IN CUSTODY and accused of a crime
What amendment does Miranda warning address?
5th Amendment right to be free of SELF-INCRIMINATION
When is someone in CUSTODY for Miranda purposes?
2 step process:
- FREEDOM OF MOVEMENT test: would RSN person under circumstances feel they were FREE TO TERMINATE THE INTERROGATION AND LEAVE.
- Whether RVT environment presents the SAME INHERENTLY COERCIVE PRESSURES as the type of station house questioning at issue in Miranda (the more the setting resembles a trad’l arrest)
What is an INTERROGATION under Miranda?
Any words or conduct by cops they should know is LIKELY TO ELICIT A RESPONSE
Means Miranda doesn’t apply to SPONTANEOUS STATEMENTS made by detainee
What must be done to invoke the right to remain silent under MIRANDA?
Must be UNEQUIVOCAL
Can any statement be used by police after suspect invokes the right to remain silent under MIRANDA?
No
Can drug-sniffing dog provide PC?
Yes, as long as it doesn’t extend the time or scope of the stop. UNLESS there’s otherwise PC to believe car or occupants possess illegal drugs
Can only smell OUTSIDE the car (?)
What must be shown for an alert from a drug-sniffing dog to provide PC?
That dog has proper training
What type of motion is used to prevent introduction of E wrongfully seized/obtained?
Motion to Suppress the Evidence
Should admissibility of E or confession be decided in front of jury?
No, should be outside jury’s presence.
What must a search involve for it to violate the 4th amendment?
D’s REASONABLE EXPECTATION OF PRIVACY
When does a defendant not have a reasonable expectation of privacy?
No REOP in objects held out to the public. Generally includes info in the hands of 3rd parties. NO REOP in:
1. Sound of one’s voice
2. One’s handwriting
3. Paint on the outside of a car
4. Account records held by a bank
5. CURTILAGE: Areas outside the home and related buildings
6. Garbage left for collection
7. Land visible from a public place, even from plane or helicopter
8 Smell of one’s car or luggage
Is there a reasonable expectation of privacy for a car?
No
In VA, does prohibition against unRSN search and seizure apply to private individuals? If so, what’s the effect?
Yes. Statute just provides that victim get compensatory and punitive damages
BUT DOESN’T result in exclusion of E
What test is used to evaluate informants’ hearsay when evaluating sufficiency of WRT affidavits?
Totality of circumstances
All that’s needed is that affidavits PERMIT MAGISTRATE TO MAKE COMMON SENSE EVALUATION OF PC
Reliability and credibility of informant and his basis of knowledge are intertwined considerations that may illuminate the PC issue
Is denial of motion to suppress appealable before final judgment on the merits?
No
When can’t an arrested person be strip searched (w/o RS that ind’l is concealing a weapon)?
When arrest is for traffic infraction, class 3 or 4 misdemeanor, or a violation of city, county, or town ordinance (punishable by no more than 30 days in jail)
When can officer arrest someone?
ANY CRIME committed in officer’s presence, or
Officer has RSN GROUNDS or PC to suspect person committed FELONY
For misdemeanor not in officer presence, when he receives phone or radio message that a warrant is on file
Can guilt be proved by circumstantial E?
Yes
What right does 6th Amendment grant?
Right to TRIAL BY JURY
Does a defendant have a right to demand a trial by JUDGE?
No - Gov’t may veto D’s right to jury trial
Does a juvenile have the same rights to waive a jury trial as an adult?
Yes
Who must consent for a jury trial to be waived?
Defendant, Commonwealth, and the court
Which court has jurisdiction over juvenile under 18?
Juvenile & Domestic Relations Ct
In which court must Commonwealth seek to have a juvenile tried as an adult?
Juvenile & Domestic Relations Court
Under what circumstances can a juvenile be tried as an adult (i.e., have case certified and transferred to circuit court) for NONVIOLENT FELONIES?
If 14 or older & charged w/ NONVIOLENT FELONY, court conducts transfer hearing upon Commonwealth’s motion. Court has DISCRETION to transfer/certify the charges.
Under what circumstances can a juvenile be tried as an adult (i.e., have case certified and transferred to circuit court) for AGGRAVATED MURDER, 1st or 2nd DEGREE MURDER or AGGRAVATED MALICIOUS WOUNDING?
If 16 or older, court conducts transfer hearing &, upon finding of PC, MUST certify charges.
If 14 or 15, court MAY conduct hearing ON MOTION OF COMMONWEALTH.
Under what circumstances can a juvenile be tried as an adult (i.e., have case certified and transferred to circuit court) for FELONY MURDER, MOB ASSAULT, CARJACKING, RAPE, SODOMY, or SEXUAL OBJECT PENETRATION?
If 16 or older, court conducts transfer hearing &, upon finding of PC, MUST certify charges if Commonwealth GIVES NOTICE of intent to proceed. If no notice given, court proceeds w/ hearing as if NONVIOLENT FELONY.
If 14 or 15, court MAY conduct hearing ON MOTION OF COMMONWEALTH, court holds hearing (like for NONVIOLENT FELONY).
How can the prosecution attack the credibility of a previously convicted witness?
When convicted of FELONY or PERJURY, conviction can be used to affect his credibility. HOWEVER, the name and nature of felony can’t be shown (UNLESS PERJURY).
When can information re plea agreements be used?
In CROSS-EXAMINATION, to IMPEACH FOR BIAS.
Is info re plea agreement generally admissible?
No, inadmissible as SUBSTANTIVE EVIDENCE.
What is FELONY MURDER?
Death occurs DURING COMMISSION of a DANGEROUS FELONY
What type of murder is a homicide presumed to be under VA law? How is presumption shifted?
2nd DEGREE murder. Prosecution has burden to elevate a common law murder to 1st DEGREE or CAPITAL by proving the add’l elements req’d by those statutes.
What felonies are included in the FELONY MURDER statute?
Arson,
Rape
Sodomy
Object Sexual Penetration
Robbery
Burglary
Kidnapping
[BARRKSO]
What is 1st Degree Murder?
Any WILLFUL, DELIBERATE, OR PREMEDITATED KILLING that doesn’t fall w/i capital murder
Murder, other than capital murder, by:
POISON
LYING IN WAIT
IMPRISONMENT
STARVATION
What is 2nd degree murder?
All murder that’s NOT CAPITAL or 1ST DEGREE
Is a felon ABSOLUTELY LIABLE for the accidental death of another during the commission of a felony?
NO, a person is liable for actions of AGENTS, but not BYSTANDERS or LAW ENFORCEMENT that cause death.
What is a PRINCIPLE IN THE 2ND DEGREE?
Someone who’s PRESENT during a crime’s commission and either:
- Commits some OVERT ACT (inciting, encouraging, advising, assisting), or
- Shares perpetrator’s CRIMINAL INTENT
Mere presence and subsequent flight NOT SUFFICIENT
What is an ACCESSORY BEFORE THE FACT? What’s their liability?
One who ORDERS, COUNSELS, ENCOURAGES, or otherwise AIDS AND ABETS another to commit an offense, but who is NOT PRESENT during crime.
Liable AS THOUGH THEY WERE THE PRINCIPAL ACTOR.
What are ENTRAPMENT elements?
- Criminal design ORIGINATED w/ police
2. Defendant NOT in any way PREDISPOSED to commit the crime.
What are elements of BURGLARY?
- Entering at NIGHT W/ OR W/O BREAKING; DAYTIME W/ BREAKING, or entering and CONCEALING ONESELF
- Within a DWELLING HOUSE, office, store, etc.
- With INTENT to commit ANY FELONY or LARCENY
What does court consider to SEVER a trial?
Whether D would be PREJUDICED BY JOINT TRIAL?
Elements for drug possession conviction?
Unlawful for any person to KNOWINGLY OR INTENTIONALLY possess controlled substance w/o script
ACTUAL or CONSTRUCTIVE POSSESSION
w/ KNOWLEDGE of its character
by one who EXERCISES DOMINION OR CONTROL of the drug
Can a defendant be guilty of underlying crime and conspiracy to commit that crime?
Yes, they’re 2 different crimes
What are the elements of CONSPIRACY? What is the essence of a conspiracy charge?
Meeting of 2 GUILTY MINDS to commit a crime.
an AGREEMENT to commit a felony (no overt act req’d)
Is 2nd confession obtained under “Ask First, Warn Later” situation admissible (where D not Mirandized for 1st confession, then Mirandized and confessed again)?
Inadmissible if done INTENTIONALLY.
However, 2nd confession may be admissible if 1st interrogation seemed unplanned
What are the elements of EMBEZZLEMENT?
D has MISAPPROPRIATED PROPERTY of another
with INTENT TO PERMANENTLY DEPRIVE him of the property, and
has been ENTRUSTED WITH THE PROPERTY (such as employer-employee r’ship)
What is VOLUNTARY MANSLAUGHTER?
Unlawful killing WITHOUT MALICE
INVOLUNTARY MANSLAUGHTER: 2 Types
- ACCIDENTAL killing during UNLAWFUL ACT
2. IMPROPER PERFORMANCE of LAWFUL ACT
Robbery
- TAKING
- w/ INTENT to steal
- PERSONAL PROPERTY of another, from her PERSON OR IN HER PRESENCE
- AGAINST HER WILL
- by VIOLENCE or INTIMIDATION
Larceny
Taking of another’s property by trespass w/ intent to deprive
In a criminal trial, what should happen when either atty makes a motion to separate the witnesses?
Court is REQ’D, on motion of either party, to exclude the witnesses to be called. Except, COMPLAINING WITNESS may remain and SHALL NOT be excluded, unless court finds that presence of the victim would impair the conduct of a fair trial.
Elements of the crime of ATTEMPT
One who INTENDS to commit a crime
and commits a DIRECT, but INEFFECTUAL ACT towards commission of the crime
What are the requirements for a MOTION TO SUPPRESS evidence?
Must be:
- Made in WRITING
- at least 7 DAYS BEFORE TRIAL
When is a “show-up” identification procedure not overly suggestive?
When the W has SUFFICIENT TIME and ABILITY to look at the suspect and,
IS NOT PRESSURED into identifying someone.
Must the victim have actually seen a firearm to convict for using a firearm in the commission of a felony?
No, could be proven by circumstantial evidence.
What is an ALFORD plea?
Accused consents to being convicted W/O ADMITTING THE CRIME (but acknowledges the weight of E against him).
Same effect as GUILTY plea: No right to jury trial, can’t confront W’s, x-examine or appeal
What is the benefit of an ALFORD plea?
b/c D doesn’t acknowledge he committed crime, can’t be used against him in civil trial
What is the M’Naghten Rule?
Deals w/ INSANITY PLEAS
A D is entitled to acquittal if: 1. a DISEASE of the mind, 2. CAUSED A DEFECT of reason, 3. such that D could tell WRONFULNESS OF HIS ACTS or UNDERSTAND THE NATURE AND QUALITY of his act.
Can a person use physical force to defend property? How much is acceptable?
May use as much force as NEC to protect his person and property.
May not ENDANGER HUMAN LIFE or DO GREAT BODILY HARM
Elements of EMBEZZLEMENT
- Wrongful CONVERSION to his own use the PROPERTY OF ANOTHER w/ INTENT TO DEPRIVE rightful owner of the use thereof,
- Property had been ENTRUSTED TO D
- Value OVER $200
Elements of EXTORTION
- THREAT OF INJURY
2. that CAUSES victim to PART W/ MONEY or pecuniary benefit
When can voluntary intoxication be an excuse for a crime (which crime)?
Can defeat the specific premeditation req’d for FIRST DEGREE MURDER
What is a PRINCIPAL IN THE 2ND DEGREE?
One who aids, encourages, or counsels the principal in the 1st degree, AND IS PRESENT at the scene.
Liable AS THOUGH THEY WERE THE PRINCIPAL ACTOR.
When can a co-conspirator WITHDRAW from a conspiracy?
Must COMMUNICATE W/D to other conspirators, and
DO WHATEVER HE CAN TO STOP the crime
What is ABDUCTION?
Requires:
- Abductor USE FORCE (or threat of force) to make victim comply
- RESTRAIN VICTIM to a particular place
- FOR A PERIOD OF TIME.
