Criminal Procedure

Question 1

Fourth Amendment- seizure of the person

Answer 1

People should be free from unreasonable searches and seizures. Any exercise of control by a government agent over a person or thing is a seizure.

Question 2

Seizure

Answer 2

A seizure occurs, when under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter.

Question 3

Arrest

Answer 3

Arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation. Arrests must be based on probable cause- trustworthy facts or knowledge sufficient for a reasonable person o believe that the suspect has committed or is committing a crime for which arrest is authorized by law.

Warrant not required unless arrest takes place in the person’s home.

Question 4

Terry Stops

Answer 4

Police have the authority to briefly detain a person even if they lack probable cause to arrest. They need:

• reasonable suspicion of criminal activity or involvement in a completed crime (reasonable suspicion based on an informant’s tip must have indicia of reliability)
• supported by articulable facts

If they have a reasonable suspicion that the detainee is armed and dangerous they may frisk the detainee for weapons. They must act in a diligent and reasonable manner in confirming or dispelling their suspicions.

Question 5

Automobile stops

Answer 5

Generally, police officers may stop a car if they have at least reasonable suspicion to believe that a law has been violated.

During traffic stops, a dog sniff is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticker or conduct normal inquiries.

Automobile stop consistutes a seizure of all of the occupants.

Question 6

Informational checkpoints and roadblocks

Answer 6

To be valid they must:

• stop cars on the basis of some neutral articulable standard
• be designed to serve purposes closely related to a particular problem relating to automobiles

Question 7

Pretextual stops

Answer 7

If the police have probable cause to believe that a driver violated a traffic law, they can stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.

Question 8

Fourth amendment- evidentiary search and seizure

Answer 8

Evidentiary searches and seizures must be reasonable to be valid under the fourth amendment but a warrant is required except in six circumstances.

• Was the search and seizure conducted by the government?
• Did the defendant have a reasonable expectation of privacy? Or was it a physical intrusion by the government into a constitutionally protected area?
• Did the police officers have a valid warrant?
• Or did a warrant exception apply?

Question 9

Standing to object to governmental search

Answer 9

Person must have their own reasonable expectation of privacy with respect to the place searched or the item seized.

• person owned or had a right to possession of the place searched
• place searched was in fact their home
• person was an overnight guest of the owner of the place searched

Question 10

Limits on Reasonable expectation of privacy

Answer 10

No reasonable expectation of privacy in objects held out to the public.

• sound of your voice
• style of handwriting
• paint on outside of car
• account records held by a bank
• location of car in public street or driveway
• anything that can be seen across open fields
• anything that can be seen from flying over public airspace
• odors emanating from luggage or car and
• garbage set out on the curb for collection

Police:

• cannot place a GPS tracker on a car without a warrant
• cannot use thermal imaging to see inside a home

There is a reasonable expectation of privacy in cell phone location records.

Question 11

Requirements for a warrant

Answer 11

Probable cause + particularity (describes the place to be searched and items to be seized). Magistrate who issues the warrant must be neutral and detached.

Evidence obtained by police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.

Question 12

Search warrant based on an affidavit

Answer 12

A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:

• a false statement was included in the affidavit by officer applying for the warrant
• the affiant intentionally or recklessly included the false statement and
• the false statement was material to the finding of probable cause

All three must be present. Defendant is rarely successful in challenging the affidavit.

Question 13

Execution of warrant

Answer 13

Only police can excute. Must be executed without unreasonable delay. Police must knock, announce their purpose, and wait a reasonable time for admittance unless officer has reasonable suspicion, based on facts, that announcing would be dangerous, futile or inhibit the investigation.

Police cannot be accompanied by third parties unless they are there to identify stolen property. Scope of search limited to what is reasonably necessary to discover the items described in the warrant.

The police cannot search persons on the premises who were not named in the warrant.

Question 14

Exceptions to the warrant requirement

Answer 14

• search incident to constitutional arrest
• automobile exception
• plain view
• consent
• stop and frisk
• hot pursuit, evanescent evidence, and emergency aid

Question 15

Warrant exceptions- search incident to constitutional arrest

Answer 15

If police make a valid arrest based on probable cause, they may search the person and areas into which they might reach to obtain weapons or destroy evidence.

Search must be contemporaneous in time and place with the arrest. But with automobiles, police may search the interior after securing a recent occupant in a squad car if they have reason to believe the vehicle contains evidence of a crime for which the recent occupant was arrested or they can search the passenger compartment if the arrestee is still unsecured and may gain access to the interior of the vehicle.

Question 16

Warrant exceptions- automobile exception

Answer 16

If police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonable contain the item for which they had probable cause to search.

If a warrantless search of a vehicle is valid, they may tow the vehicle to the station and search it later. But if it is parked within the driveway of a suspect’s home, the police may not search the vehicle without a warrant.

Search may extend to packages belonging to a passenger of the vehicle.

Probable cause can arise after the car is stoped, but probable cause must arise before anything or anybody is searched.

Question 17

Warrant exceptions- plain view

Answer 17

Police may make a warrantless seizure when they

• are legitimately on the premises
• discover evidence, fruits or instrumentalities of crime, or contraband
• see such evidence in plain view and
• have probable cause to believe (immediately apparent) that the item is evidence, contraband, or fruit or instrumentality of a crime

Question 18

Warrant exceptions- consent

Answer 18

Warrantless search is valid if the police have a voluntary consent. Scope of search may be limited by the scope of the consent but generally extends to all areas to which a reasonable person under the circumstances would believe it extends.

Make sure the person has authority to consent. Homeowner can consent to search of their child’s room, but facts like the room was always locked and the parent could never get it in would indicate they do not have authority to consent.

Question 19

Warrant exceptions- stop and frisk

Answer 19

Police officer can stop a person without probable cause for arrest if they have articulable and reasonable suspicion of criminal activity.

They can require the detainee to state their name and if they reasonably believe the person is armed and dangerous, they can conduct a protective frisk. This is limited to patdown of outer clothing unless officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.

Officer can reach into suspect’s clothing and seize any time that the officer reasonably believes, based on plain feel, is a weapon or contraband.

Question 20

Warrant exceptions- Hot pursuit, evanescent evidence, and emergency aid

Answer 20

Evanescent evidence- evidence that might disappear quickly if the police took time to get a warrant. Ex: scraping underneath fingernails.

Hot pursuit- police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling. But if the fleeing person is suspected of a misdemeanor their flight does not always justify warrantless entry into a home. If police are not within 15 minutes behind a fleeing felon, it is not a hot pursuit.

Emergency aid- police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public.

Question 21

Public school searches

Answer 21

Warrant or probable cause is not required for public school officials to search public school students or their possessions, only reasonable grounds for the search are necessary.

• moderate chance of finding evidence
• measures of carrying out the search are reasonably related to the objectives of the search
• search not excessively intrusive in light of the age and sex of student and nature of infraction

Question 22

Fourteenth Amendment- confessions

Answer 22

Confessions must be voluntary. Statement will be involuntary only if there is some official compulsion.

If an involuntary confession is admitted into evidence, the harmless error test applies. Conviction need not be overturned if there is other overwhelming evidence of guilt.

Question 23

Sixth amendment right to counsel

Answer 23

Guarantees the right to the assistance of counsel in all criminal proceedings, which includes all critical stages of a prosecution, after judicial proceedings have begun (formal charges filed).

Sixth amendment right is offense-specific. Defendant can be questioned regarding unrelated, uncharged offenses without violating the sixth amendment.

Waiver must be knowing and voluntary.

At nontrial proceedings, harmless error rule applies to deprivations of counsel. But if defendant was entitled to a lawyer at trial, failure to provide counsel results in automatic reversal of the conviction.

Statements obtained in violation cannot be used in case in chief but can be used for impeachment purposes.

Question 24

Fifth amendment- miranda warnings

Answer 24

Miranda warnings are required when a suspect is in custodial interrogation. For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must be informed that:

• they have a right to remain silent
• anything they say can be used against them in court
• person has a right to the presence of an attorney and
• if the person cannot afford an attorney, one will be appointed for them if they so desire

Warning must be given prior to interrogation.

Assertion of the right must be clearly invoked (explicit, unambiguous, and unequivocal). Waiver must be knowing and voluntary.

Question 25

Determining whether someone is in custody

Answer 25

Court must determine

(1) whether reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave
(2) whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.

The more a setting resembles a traditional arrest, the more likely the court will consider it to be custody.

Question 26

Interrogation

Answer 26

Includes any words or conduct by the police that they should know would likely elicit an incriminating response. Miranda warnings are not required for spontaneous statements made ba detainee.

Question 27

Detainee’s responses to Miranda warnings

Answer 27

• Do nothing. Court will not presume a waiver but will not presume assertion of rights. Police can continue to question.
• Waive rights. Must be knowing and voluntary. If government can show they received warnings and then chose to answer questions, that’s probably sufficient.
• Invoke right to remain silent. Must explicitly, unambiguously, and unequivocally do this. Police must honor by not badering them. Can reinitiate questioning when waiting a significant time, re-Mirandizing, and questioning on a different crime.
• Invoke right to counsel. All questioning must cease until counsel provided unless detainee waives by reinitiating questioning or is released from custodial interrogation back to normal life for 14 days.

Question 28

Exclusionary rule- Miranda

Answer 28

Evidence obtained in violation of the Miranda rules is inadmissible at trial. Can be used for impeachment though.

If police fail to give Miranda warnings and during a confession a detainee gives police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was purposeful.

Interrogation without Miranda warnings allowed when reasonably prompted by a concern for public safety.

Question 29

Pretrial identification

Answer 29

Suspect has a right to the presence of an attorney at any post-charge lineup or showup. No right to counsel at photo identifications or when police take physical evidence like handwriting samples or fingerprints.

Due process standard- can attack an identification as denying due process if it is unnecessarily suggestive and there is a substantial likelihood of misidentification. Remedy is exclusion of in-court identification. Witness can still make an in-court identification if they have an independent source (i.e. they were close to defendant during commission of the crime).

Question 30

Exclusionary rule

Answer 30

Evidence obtained in violation of 4th, 5th, or 6th amendment rights cannot be admitted. All “fruit of the poisonous tree” or evidence obtained from exploitation of the unconstitutionally obtained evidence must also be excluded unless the costs of excluding outweigh the deterrent effect exclusion would have on police misconduct.

Question 31

Exceptions to fruit of the poisonous tree

Answer 31

• fruits derived from statements obtained in violation of Miranda
• evidence obtained from a source independent of the original illegality
• connection between constitutional police conduct and the evidence is remote (acts of free will by defendant)
• inevitable discovery- police would have discovered the evidence whether or not they acted unconstitutionally
• violations of knock and announce rule

Exclusionary rule does not apply to grand jury proceedings, parole revocation proceedings, civil proceedings.

Question 32

Good faith exception to exclusionary rule

Answer 32

Exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law. Four exceptions:

• affidavit underlying warrant so lacking in probable cause that no reasonable police officer would have relied on it
• underlying affidavit so lacking in particularity that no reasonable officer would have relied on it
• police officer or prosecutor lied to misled the magistrate when seeking the warrant
• magistrate is biased and therefore has wholly abandoned their neutrality

Question 33

Harmless error test

Answer 33

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless government can show beyond a reasonable doubt that the error was harmless.

Harmless error never applies to denial of the right to counsel at trial.

Question 34

Preliminary hearing to determine probable cause

Answer 34

If arrest not made subject to arrest warrant or grand jury indictment, must hold preliminary hearing to determine probable cause within 48 hours.

Question 35

Grand juries

Answer 35

In secret, defendant has no right to notice, to be present, or to confront witnesses against them, to counsel, or to present evidence. Defendant must appear if called but can refuse to answer specific questions that might incriminate them.

Grand jury can base indictment off of evidence that would be inadmissible at trial.

Exclusion of minorities is about the only defect sufficient to quash a grand jury indictment.

Question 36

Speedy trial

Answer 36

Right does not attach until defendant has been arrested or charged. Determination of whether sixth amendment right to speedy trial has been violated is made by an evaluation of the totality of the circumstances. Factors:

• length of delay
• reason for delay
• whether defendant asserted their right
• prejudice to defendant

Remedy is dismissal with prejudice.

Question 37

Prosecutor’s duty to disclose exculpatory evidence

Answer 37

Government has a duty to disclose material, exculpatory evidence. Failure violates the due process clause and is grounds for reversing a conviction if defendant can prove that

• evidence is favorable to the defendant because it either impeaches or is exculpatory
• prejudice has resulted (reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial)

Question 38

Incompetency to stand trial

Answer 38

Not a defense to the charge, but a bar to trial. Based on defendant’s condition at the time of the trial.

Incompetent if

(1) lack a rational as well as a factual understanding of the charges and proceedings or
(2) lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding.

State can place burden on defendant of proving incompetency by a preponderance of the evidence.

Question 39

Public attendance at trial

Answer 39

Press and public have a first amendment right to attend trial itself, even when defense and prosecution agree to close it.

Question 40

Right to trial by jury

Answer 40

Only for serious offenses. An offense is serious if imprisonment for more than six months is authorized. Judge can place someone on probation for up to five years without affording them a right to a jury trial, as long as revocation of the probation would not result in imprisonment for more than six months.

Not constitutional right to a jury of 12 but there must be at least six jurors. Jury verdicts must be unanimous.

Right to have the jury selected from a cross section of the community. Defendant need only show the underrepresentation of a distinct numerically significant group in the venire to show their jury trial right was violated.

Question 41

Race or gender based peremptory challenges

Answer 41

Equal protection based attack on peremptory strike

(1) defendant must show facts or circumstances that raise an inference that the exclusion was based on race or gender
(2) upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike
(3) judge then determines whether prosecutor’s explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination. If the judge believes the prosecutor was sincere, the strike may be upheld.

Question 42

Ineffective assistance of counsel

Answer 42

claimant must show

• deficient performance by counsel and
• but for the deficiency, the result of the proceeding would have been different (defendant would not have been convicted or the sentence would have been shorter).

Cannot be based on inexperience, lack of time to prepare, gravity of charges, complexity of defenses, or accessiblity of witness to counsel.

Question 43

Sixth amendment right to confront witnesses

Answer 43

Defendant in a criminal prosecution has the right to confront adverse witnesses. The right is not absolute. Face to face confrontation not required when preventing it serves an important pubic purpose (protecting child witnesses from trauma).

Question 44

Introduction of co-defendant’s confession

Answer 44

If two persons are tried together and one person gives a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with defendant’s own confession. Can be admitted if:

• all portions referring to the other defendant can be eliminated
• confessing defendant takes the stand and subjects themself to cross-examination with respect to the truth or falsity of what the statement asserts or
• confession of nontestifying co-defendant is begin used to rebut the defendant’s claim that their confession was obtained coercively.

Question 45

Guilty pleas

Answer 45

Judge must determine that the plea is voluntary and intelligent. This is done by addressing the defendant personally in open court on the record. Make sure defendant knows and understands

• nature of the charge and crucial elements of the crime charged
• maximum possible penalty and any mandatory minimum
• defendant has a right not to plead guilty and if they do, they waive right to trial

Remedy for failure to meet standards is withdrawal of the plea and pleading anew.

Plea an be set aside for

• involuntariness (failure to meet standards of taking a plea)
• lack of jurisdiction
• ineffective assistance of counsel
• failure to keep the plea bargain

Judge does not have to accept the plea. But it can be enforced against the prosecutor and the defendant.

Question 46

Death penalty

Answer 46

Death penalty can be imposed only under statutory scheme that gives jury reasonable discretion, full information concerning defendants, and guidance in making the decision.

Rape- cannot be imposed for rape or an adult woman or child that was not intended to result in death nor did result in death

Felony murder- cannot be imposed unless felony murderer’s participation was major and they acted with reckless indifference to the value of human life

Cannot execute a prisoner who is insane at the time of execution, even if the prisoner was sane at the time the crime was committed. Cannot impose on someone who is intellectually disabled. Cannot execute a minor under 18 at the time they committed the offense.

Question 47

Habeas corpus proceeding

Answer 47

Petitioner has the burden of proof by preponderance of the evidence to show an unlawful detention. No right to counsel at proceeding.

Question 48

Fifth amendment- double jeopardy

Answer 48

A person cannot be retried for the same offense once jeopardy has attached. Jeopardy attaches in a jury trial at the empaneling and swearing of the jury. In bench trial jeopardy attaches when the first witness is sworn. Exceptions:

• hung jury
• manifest necessity to abort the original trial or termination occurs at the behest of the defendant on any ground not constituting acquittal on the merits
• state can retry a defendant who has successfully appealed a conviction unless ground for reversal was insufficient evidence to support guilty verdict. Cannot be retried for greater offense.
• breach of plea bargain
• defendant elects to have offenses tried separately.
• does not apply to separate sovereigns

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not.

The state can generally bring a civil action against a defendant even if defendant has already been criminally tried for the conduct.

Question 49

fifth amendment privilege against compelled self-incrimination

Answer 49

can be asserted by any person in any type of case. Only natural persons can assert, not corporations or partnerships. Privilege is personal and can only be asserted if the answer to the question might tend to incriminate them.

Must claim in civil proceedings to avoid waiver in subsequent criminal proceedings.

Only testimonial evidence is protected. Only compelled testimonial evidence is privileged.

Question 50

Commenting on defendant’s silence

Answer 50

Prosecutor cannot comment on a defendant’s silence after being arrested and receiving miranda warnings. The prosecutor cannot comment on defendant’s failure to testify at trial.

Defendant on timely motion is entitled to have the judge instruct the jury that they may not draw an adverse inference from defendant’s failure to testify. Judge can offer this instruction sua sponte.

Can discuss silence before miranda warnings given.

Harmless error test applies when prosecutor impermissibly comments on defendant’s silence.

Question 51

Property forfeiture

Answer 51

Owner of personal property is not constitutionally entitled to notice and hearing before property is seized for purposes of a forfeiture proceeding. Hearing required before final forfeiture.

When real property is seized, notice and an opportunity to be heard is require before the seizure unless the government can prove that exigent circumstances justify immediate seizure.

Excessive fines only applies to fines imposed as penal punishment, not civil fines.