Criminal Procedure Flashcards
what is a search
A search occurs when government conduct violates a person’s reasonable expectation of privacy.
define reasonable expectation of privacy
Under the 4th Amendment, a person is granted protection from unreasonable government searches.
list places where there is a reasonable expectation of privacy (hint: there are five)
homes, hotel rooms, offices, curtilage (backyard), luggage
list places where there is no reasonable expectation of privacy (hint: there are six)
public streets, open field (even if private property), garbage left out in the street, abandoned property, anything visible from public airspace, anything that can be seen inside one’s home from public space
these are not searches because there is no reasonable expectation of privacy
7 instances where a warrant is not needed for a search
ESCAPES exigent circumstances search incident to lawful arrest consent automobiles plain view evidence obtained from administrative searches stop and frisk
what are the requirements for a search warrant to be issued
Be issued by a neutral magistrate;
Be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime; AND
Describe the place and property to be searched with particularity.
If a warrant fails to meet these three requirements, the warrant is invalid, and the
recovered items will be excluded from the prosecutor’s case-in-chief.
define exigent circumstances
Law enforcement officers may conduct a search without a warrant if: The officers are in “hot pursuit” or immediate danger; OR The evidence would spoil or disappear in the time it would take to obtain a warrant.
when does the exigent circumstances exception not apply?
it does not apply if officers create the exigent circumstances
define search incident to lawful arrest
Law enforcement officers may conduct a search without a warrant if the search occurs at the time that a lawful arrest is made.
what can officers search during a search incident to lawful arrest
scope of the search is limited to objects within the reach of the arrestee (e.g., if the arrestee is restrained, their reach is very limited – this would limit the permissible scope of the search)
Law enforcement officers may conduct a search without a warrant if a person voluntarily _________ to a search.
Do officers have to inform the subject that she has a right to refuse?
Law enforcement officers may conduct a search without a warrant if a person voluntarily consents to a search.
Officers do NOT have to inform the subject that she has the right to refuse consent to the search.
can a third party consent to search?
A third party with apparent authority can consent to search (like a roommate)
However, officers cannot search over a present occupant’s objection (e.g., if one occupant consents and the other occupant refuses, officers cannot search the property).
what is the automobiles exception to warrantless searches
Law enforcement officers may conduct a search without a warrant if they have probable cause to believe that an automobile contains contraband or evidence of a crime.
what can officers search during the automobile search without a warrant
They can search the parts of the vehicle, and containers inside, which could reasonably contain the items for which there is probable cause (e.g., cannot search for a shotgun in the glove box where it cannot reasonably fit).
what is plain view
Law enforcement officers may seize evidence without a warrant if:
The officers are legally on the premises;
The evidence is observed (with any of the five senses) in plain view; AND
There is probable cause to believe the items are evidence of a crime or contraband.
Law enforcement officers do NOT need search warrants to conduct administrative searches if the search is both
Reasonable; AND
Conducted pursuant to established police agency procedures that are designed to meet legitimate objectives while limiting the discretion of the officer
like airplane boarding areas, borders
define stop and frisk
Law enforcement officers can stop an individual when the officer has a reasonable suspicion, based on articulable facts (i.e., more than a “hunch” – less than probable cause), to believe that the subject is or is about to be engaged in criminal activity.
what can an officer do during a stop and frisk/terry stop
During a Terry stop, an officer can frisk a subject for weapons without a warrant; however, the officer cannot initiate a search for evidence. If probable cause develops during the Terry stop, the officer can then make a lawful arrest of the individual.
If the frisk for weapons reveals objects whose shape makes their identity obvious (e.g., object is obviously contraband), the officer may seize those objects.
what must an officer have in order to arrest an individual
probable cause
What are two things that can give an officer probable cause
An officer has probable cause if: The officer witnesses the commission of the crime; OR A person tells the officer that a crime has been committed.
do you need an arrest warrant to arrest someone?
no, an individual may be arrested with or without an arrest warrant
Instances where you need an arrest warrant
Are there any exceptions?
an arrest warrant authorizes law enforcement officers to enter a home to arrest the individual.
without a warrant, officers can arrest an individual inside the home only if they have consent or exigent circumstances
requirements for an arrest warrant
An arrest warrant is issued by a neutral magistrate based on a finding of probable cause to believe that the named individual has committed a crime.
define 5A rights
The 5th Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. A defendant who wishes to invoke his 5th Amendment right does so by simply not taking the stand.
define custodial and interrogations
Custodial. A person is in custody if a reasonable person would believe they are not free to leave (objective test)
Interrogation. A person is subject to an interrogation when the police know or should know that their words or actions are likely to elicit an incriminating response. Miranda does NOT protect volunteered statements, as they are, by definition, not the product of interrogation.
what does miranda protect against
Under Miranda, any incriminating statement obtained as a result of custodial interrogation (i.e., suspect is in custody and subject to police interrogation) may NOT be used against the suspect at a subsequent trial UNLESS the police informed the suspect of his Miranda rights.
Applies only to 5A custodial interrogations
what must a miranda warning include
She has the right to remain silent;
Any statement she makes may be used against her in court;
She has the right to consult an attorney and to have the attorney present during questioning; AND
She has the right to have an attorney appointed if she cannot afford one.
How can a defendant waive miranda rights
A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily.
what happens when a defendant invokes miranda
The police MUST cease their interrogation if either of the following occurs:
The party being questioned affirmatively invokes her right to remain silent OR affirmative invokes right to counsel
can the police go back to questioning after a defendant invokes right to remain silent under miranda
After a substantial period of time, police can go back to the suspect, give Miranda warnings again, and seek to interrogate her further.
can the police go back to questioning after a defendant invokes right to a counsel silent under miranda
The interrogation cannot resume until the lawyer is present, the suspect reinitiates the interrogation, or 14 days have passed since the suspect was released from custody.
what is a violation of miranda
Evidence obtained from a voluntary statement taken in violation of Miranda is admissible. Miranda is violated if:
what happens at trial if there is a violation of miranda
A statement obtained in violation of Miranda is inadmissible in the prosecution’s case-in-chief, BUT can be admitted to impeach the defendant.
a statement in violation of miranda is inadmissible but if voluntary statements that lead to other evidence (like a murder weapon) - then that evidence itself is admissible
are voluntary statements taken in violation of miranda admissible?
yes
situations where Miranda is not required
When the public’s safety is at risk;
When the suspect being questioned is not aware that the interrogator is a police
officer
If the questioning is biographical for routine booking purposes.
How does the court determine whether a statement was coerced by the police
totality of the circumstances test
The length of the interrogation
The time and location where the interrogation took place;
Police tactics used (force or trickery); AND
The character of the person being interrogated (age, education level, sophistication, etc)
define the use of force in interrogation tactics
The application of force or threats of force made by the police to the person being interrogated renders any statements made during the interrogation involuntary.
define the use of trickery in interrogation tactics
Trickery or false promises made by the police to the person being interrogated may render their statements involuntary.
HOWEVER, deceit or fraud by the police (i.e., lying about an accomplice’s confession) does not itself make a statement involuntary.
is an involuntary statement admissible at trial? if so, for what purpose?
An involuntarily obtained statement is NOT admissible against a defendant for substantive purposes or for impeachment purposes. Evidence obtained from an involuntary statement is fruit of the poisonous tree and is presumptively inadmissible.
define the 6A right to counsel
The 6th Amendment guarantees a criminal defendant “the assistance of counsel for his defense.”
Once a defendant’s right to counsel has attached, any attempts to deliberately elicit a statement from him in the absence of his attorney violates the 6th Amendment.
it’s offense-specific - it only applies to the offense that the defendant has been formally charged with, can question without attorney present about other things
compare the 6A and 5A right to counsel
The 6th Amendment right to counsel automatically attaches once formal adversarial judicial proceedings have commenced.
By contrast, the 5th Amendment right to counsel must be affirmatively invoked by the defendant. it DOES NOT AUTOMATICALLY ATTACH
waiver of 6A right to counsel
The 6th Amendment right to counsel is in effect once it automatically attaches UNLESS the defendant voluntarily, knowingly, and intelligently waives the right. The defendant must understand the nature of the right being waived and the consequences for waiving it.
define ineffective assistance of counsel
If a convicted defendant can prove that he had ineffective assistance of counsel at trial, his conviction can be overturned.
how can a defendant prove ineffective assistance of counsel
To prove ineffective assistance, a defendant must show:
That his trial lawyer’s performance fell below an objective standard of reasonableness; AND
A reasonable probability that the result of the proceeding would have been different BUT FOR his counsel’s unprofessional errors.
what are the three main types of ID procedures
photo arrays
pre indictment lineups
post indictment lineups
what rights does a defendant have related to photo arrays
Neither the defendant nor his attorney has the right to be
present, but the police must turn over the photo array to the defendant.
what rights does a defendant have related to pre indictment lineups
The defendant does NOT have a 6th Amendment right to have counsel present during a pre-indictment lineup.
post indictment lineups
The defendant has a 6th Amendment right to have counsel present during a post-indictment lineup. If that right is violated, then evidence that the witness identified the defendant at the lineup MUST be excluded.
impermissibly suggestive lineups
If the lineup was impermissibly suggestive, the court can exclude the evidence of it.
However, the witness is permitted to identify the defendant in court if the prosecution can establish by clear and convincing evidence that the witness would have identified the defendant even without the suggestive lineup.
exclusionary rule
Evidence obtained in violation of the defendant’s 4th, 5th, or 6th Amendment rights is inadmissible in a criminal case
Additionally, all evidence obtained as a result of the constitutional violation is inadmissible as fruit of the poisonous tree.
does the exclusionary rule apply to miranda violations?
no
when does the exclusionary rule not apply (four instances)
The police had an independent source for the evidence that was distinct from the original illegal source
The discovery of the evidence was inevitable regardless of the violation;
There is attenuation in the causal chain, such that intervening events and the passage of time can remove the taint; OR
The police relied in good faith on either: an existing law that was declared unconstitutional or a facially valid warrant
what are generally two parts of pre trial procedure
right to jury trial and guilty please
right to jury trial
6A guarantees a criminal defendant the right to a jury trial for all serious offenses (6 months or more of incarceration)
jury pool requirements
must represent a fair cross-section of the community from which no distinctive group is excluded
actual jury requirements
the actual jury that is seated must be only impartial – it does NOT have to represent a fair cross-section of the community
define preemptory challege
Potential jurors may be removed for cause to ensure an impartial jury OR through the use of peremptory challenges. Peremptory challenges allow each side to remove a limited number of potential jurors for any reason other than race or gender.
what is required for a guilty please to be valid (five requirements)
Inform the defendant of his rights and ensure that the defendant understands those rights;
Inform the defendant of possible sentences;
Make sure there is a factual basis for the plea;
Determine that the plea did not result from force, threats, or improper promises; AND
Make sure that defendant understands the immigration consequences of pleading guilty.
who has the burden of proof in a criminal trial
The prosecution MUST prove every element of a crime beyond a reasonable doubt in order to obtain a conviction of the defendant. However, the government can shift the burden of proof to the defendant in regard to affirmative defenses argued by the defendant.
what is double jeopardy
Double jeopardy ensures that the defendant is protected against:
(1) Prosecution for the same offense after acquittal;
(2) Prosecution for the same offense after conviction; AND
(3) Multiple prosecutions or punishments for the same offense.
what does not constitute “same offense” for double jeopardy purposes
Two distinct crimes do NOT constitute the “same offense” for double jeopardy purposes if each crime requires proof of a fact for which the other does not (e.g., offenses with different victims are separate offenses for double jeopardy purposes).
define motion for judgment of acquittal
After the government closes its evidence or after the close of all the evidence, the court must enter a judgment of acquittal if the evidence is insufficient to sustain a conviction (i.e., no reasonable jury could find that
each element of the offense was proven beyond a reasonable doubt).
