Criminal Procedure

Question 1

4A protects against what? General Principal?

[ MOST HIGHLY TESTED]

Answer 1

The 4th Amendment protects against unreasonable searches and seizures.

It applies to searches and seizures by a government actor in a constitutionally protected area, or in any place where a person has a subjective (actual) and objective ( reasonable) expectation of privacy.

• A search w/o warrant is presumed to be unreasonable and unconstitutional, unless there is an exception to the warrant requirement.

Question 2

Standing

Answer 2

A person standing to raise a 4A challenge if they have an expectation of privacy in the thing searched or seized.

• A passenger in a car does not have a legitimate expectation of privacy in a car belonging to another person, but does have an expectation of privacy in their belongings in the car.
• A person has a reasonable expectation of privacy in their home and in the curtilage surrounding the home.

Question 3

Protective sweeps

Answer 3

Allows officers to sweep the areas within a dwelling .The officers can search the area immediately surrounding the arrested person for safety reasons. The officers can search beyond the immediate area if they have reasonable suspicion based on specific and articulable facts that other areas harbor someone who poses a danger to them.

Question 4

Exigent Circumstances

Answer 4

Entry into a home w/o a warranty is justified by the exigent circumstance doctrine, if police are in hot pursuit of a suspect & have pc to believe he has committed a crime, evidence of a crime is likely to disappear before a warrant is obtained, or when officer enter a home to render emergency aid & they have specific & articulate facts that lead them to believe someone needs aid. The extent of the entry must be limited to the purpose of the exception.

Question 5

SIA - person

Answer 5

In order to keep an officer safe /to preserve evidence, at time of a lawful arrest, an officer may conduct searches of arrestee and their wingspan.

Question 6

Consent Exception*

Answer 6

Search performed pursuant to consent is reasonable &valId. If person with actual or apparent authority to consent gives consent freely& voluntarily, officers may search the areas to which they understand the consent to extend w/o a warrant. The scope of the consent is defined by the consenting party & is measured by objective reasonableness.

Question 7

Plain View Exception*

Answer 7

An officer who is lawfully present in an area may seize an item if it is immediately apparent that the item is contraband or evidence of a crime. This extends to other senses such as plain smell and plain feel.

Question 8

Exclusionary Rule

Answer 8

The exclusionary rule makes both physical and testimonial evidence obtained in deliberate, reckless or grossly negligent violation of 4 A, inadmissible against the person whose rights were violated.

Question 9

Informant Tip (Anon /known)

Answer 9

An informant can provide pc/rs if the totality of circumstances suggest the tip is reliable. In making this determination, the court looks at the reliability of the informant , the nature of the informant’s information & the reasonableness of the suspicion in light of these factors.

• Info that is detailed /corroborated is GOOD

Question 10

Is a traffic stop a seizure?

Reasonable mistakes of law & reasonable mistakes of fact permissible to justify stop?

Answer 10

A traffic stop is considered a seizure of the occupants of a vehicle & is within protections of 4A. The stop must be justified by an officer’s rs that criminal activity is afoot. RS exists when a reasonable person would believe based on specific & articulable facts that criminal activity is present.

Reasonable mistakes of law & reasonable mistakes of fact are allowed under 4A to justify a stop.

Question 11

School Search

Answer 11

School officials only need reasonable suspicion of an infraction of school rules or a violation of the law when searching a student or their property on school grounds.

Question 12

6A Confrontation Clause**

Answer 12

6A states that in all criminal proceedings, the accused shall enjoy the right to confront witnesses against him. Thus if the evidence is testimonial, the declarant is unavailable, and the defendant had no prior opportunity to cross examine the declarant, the statement cannot be admitted.

Statements are nontestimonial when made during police interrogations if primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. Testimonial if primary purpose is to establish or prove past events potentially relevant to criminal prosecution..

Exception : An accused can forfeit his right to confrontation through wrong doing specifically causing the witness’s unavailability.

Question 13

6A Right to speedy trial*

Answer 13

Right to a speedy trial is guaranteed by 6A & Michigan Constitution. D’s right to a speedy trial attaches when there is an institution of formal proceedings or D’s arrest followed by formal charges. Michigan uses a 4 factor test: 1. how long is the delay, 2. the reason for the delay 3. D’s assertion of the right & 4. prejudice to D

D is presumed to have been prejudiced if there is a delay of 18 months or more. Then prosecutor’s burden to show no prejudice to D. The presumption triggers an inquiry into the other factors to be considered in balancing competing interests to determine whether D has been deprived of the right to a speedy trial.

If delay is less than 18 months, no need to inquire into factors D has burden of showing prejudice was caused by prosecution.

If D ‘s right is violated ,D is entitled to dismissal w/prejudice.

Question 14

Right to Self-Representation

Answer 14

RSR is implied in 6A, and guaranteed expressly by Michigan law. RSR is measured against the right to counsel, thus if D wants to represent himself, a trial court must 1) make sure waiver request is unequivocal, 2. waiver is KIV, and 3. D will not disrupt, inconvenience and burden court.

The trial court must also on the record explain the charges, max. Sentence/min sentence, advise of risks of RSR, and give D opportunity to consult w/ counsel.

Question 15

5A Miranda***

Answer 15

There is a 5A right against compelled self –incrimination. An accused subject to a custodial interrogation must be given Miranda warnings prior to the interrogation. If not, any statement they make during the interrogation may not be introduced in evidence at their criminal trial. An interrogation is questioning initiated by law enforcement officers, or its functional equivalent.

Custody
An individual is in custody if there is a formal arrest or a restraint on freedom of movement of the degree associated w/a formal arrest. A court must ask whether a reasonable person would have felt free to leave. This is an objective inquiry. A determination is made based on the totality of circumstances.

Question 16

5A - Invoking Right to Remain Silent.

Answer 16

To invoke a right to remain silent, the invocation must be explicit, unambiguous and unequivocal. Once a suspect invokes their right to remain silent, police must stop questioning & scrupulously honor the invocation.

Question 17

5A - Invoking Right to counsel

Answer 17

Invoking Right to counsel
When an individual invokes their right to counsel, the police must terminate their interrogation immediately, and may not resume questioning until counsel arrives. Invocation must be clear & unequivocal.

Question 18

Miranda Waiver

Answer 18

When D decides to speak and waive his Miranda rights anything he says or doesn’t say is admissible until he invokes his right to silence. Waiver must be knowing, intelligent and voluntary. Waiver can be implied when a defendant who has been advised of his Miranda rights & has understood them, makes an uncoerced statement.

Question 19

Challenging PreTrial ID procedures

Answer 19

6A right to counsel attaches when the defendant is formally charged. It applies to all critical stages of the proceeding thereafter including post –charge line ups &show ups but not on –the scene identification, even after arrest.

D can also challenge ANY procedures if it violates DP of 14 A if it is so unnecessarily suggestive that it creates a substantial likelihood of irreparable misidentification. Factors taken into account include the witness’s degree of attention, level of certainty, amount of time elapsed between crime and confrontation accuracy of any prior description of culprit and the op of a witness to view the culprit at the time of the crime.

Question 20

Selection of Jury + Peremptory Challenges

Answer 20

14 A right to equal protection forbids a prosecutor from peremptorily challenging potential jurors solely by race. To establish a prima facie showing of discrimination based on race, the opponent of the challenge must show

1) D is a member of a certain race
2) Peremptory challenges are being exercised to exclude members of a certain racial group &

3) Circumstances lead to inference that exclusion was based on race.

Then other side must come forward w/race neutral explanation & then court decides whether D met its burden of establishing purposeful discrimination. If D did, challenge must be vacated.

Question 21

Motion for a New Trial

Answer 21

can be made at any time before the filing of a claim of appeal. It can be granted on any ground that would support appellate reversal of conviction or if court believes verdict has resulted in a miscarriage of justice.

Question 22

Double Jeopardy*

Answer 22

5A states that no person shall be subject to the same offence to be twice put in jeopardy of life or limb. The Double Jeopardy clause of the Michigan Constitution protects a person against being placed in jeopardy twice for the same offense. This prohibition protects against three times of jeopardy: an individual cannot be prosecuted twice for the same offense, one cannot be prosecuted a second time for the same offense after acquittal, and one may not be punished more than once for the same offense. Two offenses are considered the “same offense” if the two charges require proof of the same elements.

Judicial acquittal premised on a misconstruction of a criminal statute or the improper addition of a required element of proof are still acquittals on the merits barring retrial of the same offense.

Question 23

Waiver of a Right to an Interpreter

Answer 23

Waiver is an intentional relinquishment of a known right. IF D does not speak English, he must KIV waive his right to an interpreter. The court must provide an interpreter or obtain a valid waiver. Counsel cannot waive the right for a defendant.

It is a violation of due process if D doesn’t understand the trial because he can’t speak or understand English. Failure to properly translate testimony & the trial in general is also a violation of due process.

D also has 6A right to confront witness against him, which includes right to cross- examine witness