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Criminal Procedure Flashcards

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1
Q

When does a seizure occur?

A

when an officer restrains a person’s freedom of movement by means of physical contact or show of authority

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2
Q

What is the test for whether a seizure has occured?

A

whether a reasonable person would feel free to disregard the officer

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3
Q

What is a Terry stop?

A

A Terry stop occurs when an officer stops an individual when the officer has a reasonable suspicion, based on articulable facts, to believe the suspect is involved in criminal activity

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4
Q

What is the requirement for an arrest?

A

the officer must have probable cause to believe that the arrested individual has committed a crime

  • an objective test
  • pretextual arrests are ok, so long as someone violated the law
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5
Q

When is a search warrant needed?

A

a search warrant is needed when the government conducts a search in a place where one has a reasonable expectation of privacy

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6
Q

What are the requirements of a warrant?

A

PNP

  • must be based on Probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime
  • must be issued by a Neutral and detached magistrate
  • must describe the property and place to be searched with Particularity
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7
Q

What are the seven major exceptions to the warrant requirement?

A

ESCAPES

  • exigent circumstances
  • search incident to lawful arrest
  • consent
  • automobiles
  • plain view
  • evidence obtained from administrative searches
  • stop and frisk
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8
Q

What is the automobile exception to the warrant requirement?

A

If police have probable cause to believe an automobile contains contraband or evidence of a crime they can search those parts of the vehicle that might contain contraband, even without an arrest

+This includes a container in a car that might contain the illegal evidence

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9
Q

What is a warrantless administrative search (that does not need a warrant)? What are some examples?

A

These are searches used to ensure compliance with administrative regulations

  • airplane boarding area
  • international borders
  • highly regulated industries (liquor stores, gun shops)
  • students in public schools
  • special needs searches (e.g., drug testing of railroad employees after an accident)
  • roadblocks for drunk driving or seeking information
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10
Q

What is the general rule of Miranda?

A

statements made as a result of custodial interrogation are inadmissible unless they are accompanied by procedural safeguards (i.e., the Miranda warnings)

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11
Q

What does custodial mean?

A

the person being questioned has been arrested or the person’s freedom of movement is restrained to such a degree that a reasonable person would not feel free to terminate the encounter

+A suspect who voluntarily went to the police station and could have ended the encounter because he was unrestrained is NOT in custody

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12
Q

What does interrogation mean?

A

words or conduct by the police that they should know are reasonably likely to elicit an incriminating response

The suspect must be aware of the interrogation.

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13
Q

What are the exception to giving Miranda warnings before questioning?

A

[PUR]
Public safety exception
Undercover police
Routine booking questions

When public safety is at risk, the police do not have to give Moranda warnings before questioning

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14
Q

What are the rules on using involuntarily obtained statements?

A
  • involuntarily obtained statements are NEVER admissible against a D
  • the conviction must be thrown out unless the court believes beyond a reasonable doubt that the introduction of the statement was harmless
  • evidence obtained as a result are fruit of the poisonous tree and are presumptively inadmissible
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15
Q

What are the rules on using statements obtained in violation of Miranda?

A
  • Inadmissible in the prosecution’s case in chief, but can be admitted in order to impeach the defendant to challenge his credibility
  • evidence obtained as a result of a voluntary statement taken in violation of Miranda is admissible
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16
Q

What is the exclusionary rule?

A

evidence obtained in violation of the 4th, 5th, or 6th Amendments cannot be introduced at trial to prove a D’s guilt

However, it does NOT apply in the grand jury

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17
Q

What are the exceptions to the exclusionary rule?

A

Isolating Independent Kingdoms Inevitably Gains Animosity

  • isolated negligence by law enforcement
  • independent source
  • knock and announce
  • inevitable discovery
  • good faith
  • attenuation in the causal chain
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18
Q

When does a D have a 6th Amendment right to a jury trial?

A

A D has a right to jury trial for all serious offense, for which the authorized punishment is more than 6 months

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19
Q

What are the four factors a court considers when dealing with a Speedy Trial Clause claim?

A

[LARP]

1) Length of the delay
2) whether the D Asserted his right to a speedy trial
3) Reason for delay
4) risk of Prejudice to the D

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20
Q

What is the Brady doctrine?

A

prosecutors must turn over all material exculpatory evidence to the defense

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21
Q

When does jeopardy attach?

A

Jeopardy attaches when the jury is sworn in or, in a bench trial, when the first witness is sworn in

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22
Q

What does the 4th Amendment do?

A

The 4th Amendment protects individuals against unreasonable searches and seizures of property and against unlawful arrests

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23
Q

What is probable cause?

A

A reasonable basis, amounting to more than mere suspicion, to believe that a person is engaged in criminal activity or that evidence relevant of a crime exists in a particular location.

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24
Q

When may the police stop a car?

A

an officer may stop a car if there is an articulable, reasonable suspicion of a violation of the law

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25
Q

How do courts assess whether a person has a reasonable expectation of privacy in this situation?

A

the test is based on a totality of the circumstances

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26
Q

When may the police conduct a protective sweep?

A

the police may conduct a protective sweep of all or part of the premises where an arrest takes place if they have a reasonable belief based on specific and articulable facts that other dangerous individuals may be present

The protective sweep must be limited to a cursory inspection of places where a person may hide, and last no longer than is necessary to dispel the reasonable suspicion of danger.

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27
Q

When does the exigent circumstances exception apply?

A

The police may conduct a search or seizure without warrant if they have probable cause and it is necessary to

  • prevent imminent destruction of evidence
  • prevent imminent injury to persons (including the suspect’s self-harm), or
  • search for a felony suspect of whom the police are in hot pursuit and reasonably believe has entered particular premises

+It also applies when

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28
Q

When may the police stop and frisk someone?

A

the police may stop and frisk a person if the police have a reasonable suspicion (based on a totality of the circumstances) of criminal activity that is supported by articulable facts AND the frisk is necessary for safety

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29
Q

What is the “plain feel” exception?

A

during a stop and frisk, the officer may seize contraband during the pat-down if the identity of the object is immediately apparent

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30
Q

Once a suspect unambiguously invokes their Miranda rights, the police cannot re-Mirandize the suspect until?

A

There must be a sufficient break in custody (14 days are deemed sufficient)

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31
Q

What are the requirements for a Miranda waiver to be valid?

A

A waiver of Miranda is only valid if it is made voluntarily, knowingly, and intelligently

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32
Q

Physical evidence is not protected by the 5th Amendment. What are some examples?

A
  • fingerprinting
  • line-ups
  • blood samples
  • photographs
  • other identification procedures
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33
Q

When does a defendant have standing to challenge a 4th A search?

A

A D has standing to challenge a 4th A search if he/she had a legitimate expectation of privacy in the searched area OR an ownership/possessory interest in the place

Ex: When the police illegally search a home belonging to a 3rd party when the D is an overnight guest. The D has no standing to challenge the search.

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34
Q

When are the 3 situations in which the police can search for an arrestee in a 3rd party’s home?

A

Police may search for an arrestee in a 3rd party’s home only when they have:

  • a warrant authorizing the search
  • exigent circumstances OR
  • the third party’s consent to enter the home
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35
Q

The Fifth Amendment privilege against self-incrimination does not apply to evidence that might subject a person to civil liability or to corporations.

A

o

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36
Q

When does the 5th A right to counsel apply?

A

the 5th A right to counsel applies when a suspect is subjected to a custodial interrogation PRIOR to the commencement of judicial proceedings.

The suspect must invoke this right by making a specific, unambiguous statement requesting counsel

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37
Q

When does the 6th A right to counsel automatically attach?

A

the 6th A right to counsel automatically attaches once formal judicial proceedings have commenced (e.g., AT an arraignment)

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38
Q

When are a defendant’s due process rights violated in an identification?

A

A defendant’s due process rights are violated if an identification of the defendant, based on the totality of the circumstances, is unnecessarily suggestive and so conducive to mistaken identification that it is unfair to the defendant

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39
Q

What are the requirements of a plea bargain?

A

voluntarily and intelligently. They must also be in open court and on record.

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40
Q

The 8th Amendment requires that bail shall not be excessive or unduly high. What are the factors considered in determining if this has been violated?

A
  • the Seriousness of the offense
  • the Weight of the evidence against the defendant
  • the defendant’s Wealth
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41
Q

If the interrogation of a suspect who has waived his/her Miranda rights is stopped for a long duration (like 3 hours), police should re-Mirandize the suspect prior to resuming the interrogation.

A

o

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42
Q

What is the rule for physical evidence obtained as a result of a non-Mirandized statement

A

physical evidence obtained as a result of a non-Mirandized statement is admissible so long as that statement was voluntary (i.e., not coerced). A statement was coerced if it was the product of physical force, threats, or psychological pressure by police.

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43
Q

What was the holding in Apprendi?

A

any fact that exposes a criminal defendant to a greater punishment than authorized by the jury’s guilty verdict is an element that must be submitted to and found by the jury.

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44
Q

A felony-murder prosecution predicated upon an underlying felony for which the defendant was acquitted in a previous trial is improper because it would require retrying the underlying felony in violation of the double jeopardy clause.

A

o

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45
Q

A defendant indicted by a grand jury that excluded members of a racial group may raise an equal protection challenge—even if the defendant is not a member of the excluded group. What happens if deliberate discrimination of the grand jury is found?

A

the conviction must be automatically reversed on appeal

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46
Q

What are some critical stages where the absence of counsel may prejudice the defendant’s right to a fair trial?

A
  • Post-indictment: lineups, in-person identifications, interrogations
  • arraignments, preliminary hearings, bail hearings, pretrial motions
  • jury selection
  • plea negotiations & hearing
  • trial & sentencing
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47
Q

What are some noncritical stages?

A
  • pre-charge lineups
  • photo-array identification
  • fingerprinting, handwriting & voice exemplars, blood samples
  • initial appearances, hearings to determine probable cause to detain
  • discretionary appeals
  • post-conviction proceedings
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48
Q

Once a suspect invokes their right to counsel, when can interrogation resume?

A

There are 3 situations.

  • the suspect’s attorney is present
  • the suspect voluntarily reinitiates the interrogation
  • 14 days have passed since the suspect was released from police custody or was no longer subject to coercive pressure
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49
Q

When can an accomplice to felony murder be sentenced to death?

A

An accomplice to felony murder can be sentenced to death only if 1) the defendant significantly participated in the commission of the underlying felony and 2) acted with reckless indifference to human life

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50
Q

What is the rule for police conduct on a person’s curtilage?

A

Police have an implied license to briefly enter a person’s curtilage in the same manner as a private individual. But if police intrude in an unusual manner for an uncommon purpose (e.g., to conduct a canine search), a warrant is generally required.

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51
Q

What must be shown to establish ineffective assistance of counsel?

A

1) the attorney’s performance fell below objective standards of reasonableness AND
2) there is a reasonable probability that, but for that deficiency, the outcome would have been different

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52
Q

Miranda warnings are not required when a suspect who is subjected to a custodial interrogation is not AWARE that the interrogator is a police officer

A

e.g., when the officer is undercover or when talking to a jailhouse informant.

+Post-indictment statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements about the crime for which he was indicted without the assistance of counsel. Ex: an informant constantly boasted about the crimes that he committed and the suspect finally confessed to the bank robbery

53
Q

A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest. If the arrest is invalid, any search made incident to it is likewise invalid. Therefore, if a suspect is stopped for a traffic offense and given a citation but not arrested, then there can be no search incident to lawful arrest.

A

o

54
Q

What is required for a warrantless search of an automobile after an arrest?

A

The officer must either show

  • 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.
55
Q

When is the probable cause requirement met when police seek the issuance of an anticipatory search warrant?

A

1) at the time of issuance, there is probable cause to believe the triggering condition will occur and
2) if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found.

56
Q

What is the due process limitation on presumptions?

A

Due process prohibits the use of mandatory presumptions that relieves the prosecution of its burden to prove an element of the crime OR shifts the burden of proof to the defendant

permissible inferences – which allow the fact finder to reach a conclusion once a party proves an underlying fact or set of facts are permitted.

57
Q

What is the “plain view” doctrine?

A

The “plain view” doctrine allows an officer, while properly executing a warrant, to seize evidence not particularly described in the warrant if:

(1) the officer is lawfully on the premises,
(2) the incriminating character of the item is immediately apparent, and
(3) the officer has lawful access to the item.

58
Q

What is the standard required by school officials to search a student?

A

School officials need only have a reasonable suspicion that a student is violating (or has violated) the law or school rules to search that student.

59
Q

When school officials are searching a student, what are the requirments?

A

the search methods must be (1) reasonably related to the objective of the search and (2) not excessively intrusive considering the student’s age, sex, and the nature of the infraction.

60
Q

When a conviction of a lesser included offense stems from a guilty plea, the double jeopardy clause bars a subsequent prosecution for the greater offense unless

A

(1) an event necessary to establish the greater offense occurred after the plea was entered or (2) the greater offense was charged before the plea was entered.

61
Q

when the defendant asserts a defense (e.g., alibi) that negates an element of the crime, the burden of proof must remain on the prosecution to prove that element. In other words, the burden may not be shifted to the defendant to disprove the element

A

o

62
Q

When is an incriminating statement admissible after an unlawful arrest?

A

an incriminating statement made after an unlawful arrest is admissible if the connection between the arrest and the statement is so attenuated that the statement is considered voluntary

63
Q

How do courts consider whether to admit an incriminating statement taken after an unlawful arrest?

A

Courts consider the totality of the circumstances. Factors include:

  • the Flagrancy of the police misconduct
  • the existence of Intervening events between the arrest and the statement
  • the Length of time between the arrest and the statement

[FIL]

64
Q

Statements taken in violation of a defendant’s Sixth Amendment right to counsel cannot be used directly in deciding guilt or innocence. But such statements can be used for the limited purpose of impeaching the defendant’s inconsistent testimony.

A

o

65
Q

When executing a warrant, police may not search a person who is not named in the warrant without independent justification. Where can independent justification come from?

A

Independent justification can come from:

  • reasonable suspicion that the person is armed
  • probable cause to believe that the person committed, is committing, or is about to commit a crime
66
Q

What are the limits on evidence that can be presented by the prosecutor in a grand jury proceeding?

A

A prosecutor can present ANY relevant evidence at a grand jury proceeding—even if that evidence was illegally obtained.

+The prosecutor has no legal obligation to present evidence exculpating the defendant to the grand jury.

67
Q

What is the purpose of the grand jury?

A

Grand jury proceedings are used to determine whether probable cause exists to issue an indictment against an individual.

68
Q

What are the rules on taking handwriting exemplars?

A

The taking of handwriting exemplars is ok. It does not violate the Fourth Amendment (no reasonable expectation of privacy), the Fifth Amendment (no protection for physical evidence), or the Sixth Amendment (not a critical stage of prosecution).

69
Q

What happens if a non-indigent criminal defendant is not allowed to choose their attorney (e.g., the attorney was erroneously denied pro hac vice)?

A

The denial of a defendant’s choice of counsel constitutes structural error and requires automatic reversal of the defendant’s conviction.

70
Q

What is the initial approach to answering a search question?

A

1) Overview of what the 4th amendment is
2) government conduct?
3) reasonable expectation of privacy?
4) is the stop/arrest valid?
5) search warrant requirement?
6) list ALL exceptions to warrant requirement

71
Q

The 6th Amendment does not prevent the police from questioning the defendant about unrelated offenses that are not the charged crimes in question.

A

o

72
Q

What does the admission of a confession by a non-testifying co-defendant at a joint trial violate?

A

the 6th A right to confrontation

73
Q

Generally, criminal defendants have a constitutional right to counsel and can therefore discharge their attorney and find a new one. This is typically granted, except when?

A

Granting the motion would:

  • put D at a disadvantage
  • be unfair to a codefendant
  • unduly delay the trial

+watch for this request just before trial

74
Q

Does a person being searched on the street have a reasonable expectation of privacy?

A

Yes. A person has a reasonable expectation to privacy in their own body and pockets.

75
Q

What can the police do during a search incident to arrest?

A

The police can search the person and the immediate surrounding area (wingspan). The search includes pockets and containers (e.g., purse).

The search does NOT extend to an arrestee’s cell phone or laptop

76
Q

What impact does the 8th Amendment have on seeking the death penalty?

A
  • a defendant who was younger than eighteen years of age at the time of the commission of a crime CANNOT get the death penalty
  • a defendant cannot be sentenced to death if at least one juror finds the defendant to be mentally retarded
77
Q

What can the police do during a stop?

A

The police can do a limited search for safety (frisk), but only a pat-down. Contraband can only be taken if the physical characteristics make its identity immediately obvious (“plain-feel” exception)

+A police officer does not need to read the defendant his Miranda rights before questioning him during a “Terry stop.”

78
Q

What is the rule on a cheek-swab?

A

it is considered a search. However, it is permitted if the police have probable cause / are booking the individual

79
Q

What is the rule on random stops of cars?

A

Police generally cannot stop an automobile without a reasonable, individualized suspicion of a violation of the law. Police CAN do a stop/roadblocks if it is on the basis of neutral, articulable standards (NAS) and its purpose is closely related to an issue affecting automobiles.

Ex: random stops of cars because of common drug sales is illegal.

[think of NAS being pulled over at a checkpoint]

80
Q

What is the rule on judges deciding whether multiple crimes run concurrently or consecutively?

A

This does NOT violate the 6th amendment

81
Q

When is the death penalty generally allowed?

A

typically just for homicide. For non-homicide crime (like rape), the punishment is a violation of the 8th amendment

82
Q

What happens if the defendant waives their Miranda rights, without police coercion, and is later found to be mentally ill?

A

the defendant’s mental condition alone cannot violate the voluntariness standard. There must be coercive police activity for the confession to be found involuntary.

83
Q

How is a traffic stop characterized for Miranda purposes?

A

Traffic stops generally are not considered custodial because they generally are brief and temporary.

Therefore, even a question that intends to elicit an incriminating response during a traffic stop is ok

84
Q

Is there a reasonable expectation of privacy in the short-term use of a home (e.g., several hours) with the permission of the owner

A

No. The person using the home temporarily has no expectation of privacy

85
Q

How does due process impact the burden for affirmative defenses?

A

Due process does not apply to affirmative defenses

For criminal offenses the prosecution has the burden to prove every element beyond a reasonable doubt

But for affirmative defenses, the defendant can bear the burden to prove an affirmative defenses or the government can even eliminate affirmative defenses

86
Q

What is an affirmative defense?

A

affirmative defenses justify or excuse a defendant’s criminal conduct but do not negate an element of the crime

87
Q

What are the affirmative defenses?

A

[DINED}

  • Duress
  • Insanity
  • Necessity
  • Entrapment
  • Defense of person/property
88
Q

When can the police forcibly enter a home to make an arrest when executing an arrest warrant?

A

Police must:

  • knock and announce their presence
  • allow a reasonable opportunity for someone to answer
  • have reason to believe that the suspect is inside

+Ex: a house appears vacant and a neighbor confirmed that the woman had not been there for months, the officers had no reason to believe she was inside and therefore could not forcibly enter

89
Q

What are some items or places in which a person does NOT have a reasonable expectation of privacy?

A
  • bank records
  • things exposed to public view
  • physical characteristics (handwriting, voice)
  • conversations with informants
  • pen registers
  • prison cell
90
Q

What happens if during a valid stop and frisk, the officer is unsure if an item is a weapon?

A

the officer may NOT seize the item. The item needs to be immediately identifiable as a weapon, contraband, or evidence of a crime

91
Q

What happens if a corporation’s custodian of corporate records refuses to produce subpoenaed documents by citing her Fifth Amendment privilege?

A

The 5th A privilege applies only to individuals, not corporations. Therefore, the custodian must turn over the documents EVEN if the documents would incriminate the custodian

92
Q

What is the government-informant privilege?

A

the identity of an informant does not need to be disclosed. However, the privilege does not apply if the defendant shows that the informant’s identity is material to the establishment of a defense or otherwise necessary and essential to a fair determination of the case.

+The contents of the informant’s disclosure is not protected, so long as the communication does not reveal the informant’s identity

93
Q

What is the rule when in-court identification testimony stems from unnecessarily suggestive out-of-court identification procedures arranged by police?

A

it is admissible if the prosecution demonstrates:

  • it is sufficiently reliable AND
  • poses no substantial likelihood of misidentification
94
Q

How should you start a CrimPro essay dealing with a 4th A issue?

A

Discuss the 4th A, 4th A rights are personal.

Then for EACH item confirm this was government conduct, and consider reasonable expectation of privacy

95
Q

What are the 4th A requirements for subpoenas of witnesses to testify before a grand jury?

A

In general, the 4th A does not apply to a subpoena for a witness to testify before a grand jury. Therefore, a witness cannot file a motion to quash a subpoena because there is a lack of probable cause

96
Q

What is the rule on police speaking with represented defendants without their lawyer’s presence?

A

There is NO rule prohibiting the police from contacting a D who is represented by a lawyer without a lawyer present. The police are only prohibited from violating a D’s cn’l rights when making such contact

97
Q

What is the rule for imposing the death penalty on an accomplice.

A

Generally the death penalty cannot be imposed on an accomplice who did not kill or intend to kill.

However, an accomplice can receive the death penalty if the accomplice significantly participated in the underlying felony and acted with reckless indifference to human life.

98
Q

What is the rule on someone’s presence in a vehicle?

A

A passenger’s mere presence with a criminal or in a suspicious vehicle is not enough to establish probable cause

Ex: Police have probable cause that men are selling drugs. They arrive and in the car is a woman who leaves the car to catch a bus. She is free to go because she did not fit the description of the suspected drug dealers and her mere presence is insufficient grounds to believe that she had committed a crime

99
Q

What is the rule statement when dealing with a 4th A search?

A

The Fourth Amendment protects persons against unreasonable searches and seizures. It is applicable to the states via the Fourteenth Amendment. In order to assert a Fourth Amendment challenge, there must be governmental conduct and a reasonable expectation of privacy with regard to the place searched or the item seized.

100
Q

What is required for a tip to be used in forming reasonable suspicion?

A

a tip must have sufficient indicia of reliability. But even an anonymous tip could be used if there are other pieces of evidence to find reasonable suspicion

101
Q

What is the rule on using deception to access one’s home?

A

An officer may not lie about having a warrant in order to obtain consent to enter a home. But the police may use deception. A court will look at the totality of the circumstances to determine if the consent was valid

Ex: An officer tells a neighbor they need to use their deck to investigate a terrorist plot because “lives are at stake.” But really the officer said this to snoop on the suspect from across the street. Despite the deceit, court would look at the totality of the circumstances to see if the owner consented

102
Q

Can someone be arrested for a misdemeanor?

A

yes. The misdemeanor must have been committed in the presence of the arresting party; probable cause to believe that a misdemeanor was committed, without actually witnessing the crime, is not sufficient for a valid warrantless arrest.

103
Q

What is the dual-sovereignty doctrine?

A

a person can be prosecuted for a crime by both federal and state court. A D can also be convicted by two states for the same offense

+A state and a municipality cannot both prosecute a D for the same conduct

104
Q

What is “use and derivative-use” immunity?

A

immunity that only prevents the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness in a later criminal prosecution

Ex: A witness receives derivative-use immunity in a federal criminal case. Weeks later, the witness is a D in a state civil fraud proceeding based on his previous testimony. This earlier immunity does not stop the statements from being used against him.

105
Q

What is the 8th A limit on life sentences for three-time repeat felony offenders?

A

Laws like 3 strikes are ok, even if the felonies are non-violent

106
Q

A D is in jail and does not pay rent for 2 months. Does the D retain a reasonable expectation of privacy

A

yes, the D retained a reasonable expectation of privacy. A landlord’s consent to search the D’s apartment would be invalid

107
Q

After a D was indicted on federal bank fraud charges and released on bail, his attorney filed notice of the D’s intent to offer an insanity defense. The prosecutor then used a forensic psychologist in an “undercover” mental examination of the D. The psychologist contacted the D and pretended to represent an employment agency. She told the D about an attractive employment opportunity and invited him to a preliminary interview. As part of the interview the psychologist ran tests that enabled her to form a reliable opinion about his mental state at the time of the alleged offense. What is the strongest basis for a defense objection to the psychologist’s testimony regarding the defendant’s mental state?

A

The 6th amendment right to counsel which automatically attaches once judicial proceedings commence. It requires the presence of counsel during all critical stages of prosecution – including interrogations conducted by undercover agents

108
Q

How does due process impact the burden for negation defenses?

A

When a D asserts a defense that negates an element of the crime, the prosecution bears the burden of proof

109
Q

What are common negation defenses?

A

alibi

lack of intent

110
Q

A D is indicted by a grand jury based on illegally obtained evidence. Can the D dismiss the indictment?

A

No. The exclusionary rule does not apply to grand jury proceedings since the grand jury is an investigatory body–not a judicial one.

111
Q

What are the two types of immunity? Which is the broadest?

A

use and derivative use

transactional (protects the suspect from being prosecuted for any crimes associated with self-incriminating testimony)

[T for total]

112
Q

A grand jury issues a subpoena duces tecum to produce the suspect’s diary he MAY have. Under what circumstances may the grand jury compel production of the diary over the suspect’s 5th A claim?

A

It may compel production if the suspect is granted use and derivative use immunity (the lowest form of immunity)

113
Q

When is the production of a document privileged due to the 5th A?

A

when production would prove:

  • the document is authentic
  • the suspect possesses the document
  • the document exists

[APE]

114
Q

A D is forcibly abducted from another country without a warrant or the other country’s permission. Can the D still be prosecuted?

A

yes, so long as it was outside their home, police have probable cause the D committed a felony OR it was inside their home and there is a valid warrant

115
Q

A woman is arrested when agents break into her home without a warrant. The woman moves to dismiss the indictment on the grounds that she was arrested in violation of the 4th A. Is she right?

A

While she was illegally arrested, this is not grounds to dismiss a grand jury indictment. However, evidence illegally obtained during the arrest could be suppressed

116
Q

What does the 6th A right to confrontation do?

A

the 6th A right to confrontation guarantees a criminal D’s right to be present at all critical stages of trial (basically any stage that holds significant consequences for the D). The only way a D forfeits this right to be present is by waiver by voluntarily leaving the proceeding or exclusion for good cause after receiving a warning (i.e., misconduct)

117
Q

When can a D waive his 6th A right to counsel and engage in self-representation?

A

the waiver must be made knowingly , intelligently, and voluntarily. To do so, the court must ensure:
-that the D knows the nature of the charges, range of punishment, and disadvantages of self-representation AND
the D is not being forced to choose between incompetent counsel and self-representation

118
Q

When may the police stop a car in compliance with the 4th A?

A

When there is:

  • reasonable suspicion based on specific articulable facts
  • probable cause of a violation of the law
  • a special law enforcement need
119
Q

If the police are searching someone’s home to find a kidnapped child under the exigent circumstances warrant exception (therefore lawfully), then the police can use the plain view exception to look around the house.

A

However, the police will be limited to looking in places where a child could be hidden.

120
Q

What is the rule from Graham v. Florida?

A

juveniles cannot be sentenced to life without parole for nonhomicide offenses

121
Q

An attorney representing a D charged with a capital offense has a duty to conduct a reasonable investigation to determine if there are mitigating facts for the penalty phase that may lead to a different sentencing outcome. As a result, failure to investigate such facts constitutes deficient performance

A

o

122
Q

A parolee is summoned because the officer believes he committed a rape. The parolee came to the office and, after about 30 minutes of questioning, admitted having committed the rape. At no time did the officer give the parolee Mranda warnings. Can the parolee motion to suppress his statements to the officer?

A

No, because the parolee was not in custody. Only if the parolee is arrested or restrained would they be in custody for Miranda purposes

123
Q

Can the police collect historical cell-phone site-location data of an individual that is held by a third party?

A

Under the third-party doctrine, individuals generally have no reasonable expectation of privacy in information voluntarily turned over to a third party so a warrant is not required to collect this information. However, a warrant is required to collect historical cell-phone site-location data.

This is because this data reveals not only a person’s location, but also the person’s “familial, political, professional, religious, and sexual associations” which constitute a person’s most sacred privacies

124
Q

What happens if there is an erroneous denial of a for-cause challenge of a prospective juror, but the juror did not ultimately serve on the jury?

A

This does not violate a criminal defendant’s 6th A right to be tried by an impartial jury and therefore it does not warrant reversal on appeal

125
Q

A D with an IQ of 70 or below cannot receive the death penalty.

A

If their score is between 71 and 75, then there must be an individualized assessment to determine if he/she has an intellectual disability

126
Q

What must be shown to overturn a D’s conviction for a Brady violation?

A
  • A failure to timely disclose material, favorable evidence AND
  • A reasonable probability of a different outcome if the evidence was disclosed
127
Q

a search incident to a lawful arrest must take place promptly after the arrest in order to be valid

A

o

128
Q

When the government searches open fields which are owned by the defendant, is this a search?

A

No, government intrusion upon open fields does not trigger 4th A protections since there is no reasonable expectation of privacy in open fields.

Bar Prep (15 decks)

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