Criminal Procedure

Question 1

What does the 4th amendment prohibit

Answer 1

If there is a search or seizure by a government agent, then the Fourth Amendment applies.

o Does not protect against private actors

Question 2

What are the 3 ways to satisfy the 4th amendment?

Answer 2

• Method #1: Valid warrant + proper execution.
A valid warrant requires probable cause, particularity, and must be issued by an unbiased magistrate. Officers should follow warrant limits and generally should knock and announce
their presence.

Note: An arrest warrant is not needed if the suspect is in a public place. An arrest warrant is needed if D is at his home or at the home of a third party (in the latter case, a search warrant is also needed).

• Method #2: Good faith or a reasonable mistake by the officer saves a defective warrant.

This is not present if there are serious problems with the affidavit (e.g., it is based on an officer’s lies), search warrant, or magistrate (e.g., if she is not neutral).

• Method #3: exceptions exist (check other cards)

Question 3

Criminallaw/procedure Where does the 4th amendment apply?

Answer 3

Defendant must have a reasonable expectation of privacy as to the places searched or items seized

Question 4

How is seizure of a person determined

Answer 4

o By means of physical force OR show of authority, a person’s freedom of movement is restrained

o Test—under the totality of circumstances, would a reasonable person not feel free to leave

o Types of Seizure—Arrest, stop and frisk, police checkpoints, and traffic stops

a. Arrest
 Generally, requires an arrest warrant

 Warrantless arrest allowed if an officer has probable cause to believe that a felony has
been committed

Question 5

When is an arrest allowed when there is NOT an arrest warrant?

Answer 5

 Warrantless arrest allowed if an officer has probable cause to believe that a felony has
been committed

Question 6

When is a Terry Stop allowed?

Answer 6

Terry Stop (Investigatory Stop) and Frisk

Valid when an officer has reasonable suspicion that someone is engaged in criminal activity

A “stop” (also known as a “Terry stop”) is a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest. Merely approaching a person, but not restricting the person’s movement in any way, does not constitute a detention.
A stop is justified on the reasonable suspicion, based upon articulable facts, that the detainees are or were involved in illegal activity.

Question 7

When are police check points valid?

Answer 7

 Valid if:
• Done in a non-discriminatory manner; and
• There is an automobile-related reason for the checkpoint

Example 1: A DUI checkpoint is legal because it is done for the purpose of preventing drunk driving (so long as it is conducted in a non-discriminatory manner).

Question 8

when are traffic stops allowed?

Answer 8

Valid if the officer has reasonable suspicion or probable cause that a traffic law has been violated

Exam Tip 2: A recent question provided a statute that allowed an officer to arrest a person for a traffic violation if the officer had probable cause to believe the person had violated the statute

Question 9

When does a search occur ( Very basic definition)

Answer 9

Occurs when government conduct violates the defendant’s reasonable expectation of privacy

Question 10

Valid Search Warrant

Answer 10

 A search conducted pursuant to a valid warrant is generally constitutional

 To be valid, the warrant must:

a) Be issued by a neutral magistrate;
b) Be based upon probable cause; and
c) Describe with particularity the places to be searched and the items to be seized

Question 11

List of the exceptions to a search warrant (ASPACE)

Answer 11

1. Automobile Exception
2. Search Incident to arrest
3. Plain View
4. Administrative Searches
5. Consent
6. Emergency Circumstances.

Question 12

Automobile Exception:

Answer 12

Officers can search an automobile if they have probable cause to believe that evidence, instrumentalities, or fruits of a crime exist within it.

Tip: this includes the trunk if there is probable cause to believe evidence is in the trunk

Question 13

Search incident to arrest exception

Answer 13

At the time of a lawful arrest (or “contemporaneous” with it), an officer may conduct certain searches of the arrestee (including his person, clothing, and his “wingspan” or grabable space) without a warrant in order to keep the officer safe and to preserve evidence.

Exception if the arrestee is in a vehicle: once the arrestee is secured, the police officer can only search the vehicle if it is reasonable to believe it contains evidence of the crime for which the suspect was arrested

Scope—defendant and the immediate area (i.e., wingspan)

o In arrestee’s home—can search areas within reach or where others may be hiding
o In a vehicle—can search glove compartment if within reach of defendant or if it is reasonable that evidence of the offense of arrest may be found

Tip: the officer may not search the trunk under this exception.

Question 14

Plain View Exception

Answer 14

An officer, who is lawfully present in the area that he is in, may seize an item if it is “immediately apparent that it is contraband or evidence of a crime.”

Tip: this extends to other senses as well (plain smell and plain feel).

Question 15

Emergency Circumstances

Answer 15

this comes up
(1) when an officer is in hot pursuit of a suspect
(Tip: there must be probable cause to believe that the suspect has committed a crime and he is in a particular place),

(2) if there is a serious injury or threat of injury, or
(3) if evidence of a crime likely will disappear before a warrant can be obtained.

A Terry stop and frisk is an exception where only reasonable suspicion is needed. For a Terry
stop, the officer needs reasonable suspicion that criminal activity is afoot. For a Terry frisk, the officer needs a reasonable belief that the suspect is armed and dangerous.
( Can do automobile frisk for reasonable belief weapon in car, but search limited to where might be weapon)

Tip: the officer can only frisk for weapons.

Question 16

Administrative Search exception

Answer 16

this tends to commonly come up in three ways on the MBE:

(1) officers can search arrestees and impounded vehicles,
(2) public school officials can search students and their personal effects (e.g., backpack, purse, lockers, etc.) upon reasonable suspicion, and
(3) random drug testing is permitted for public school children involved in any extracurricular activity

Question 17

Consent Exception for Searchs

Answer 17

If one with actual or apparent authority to consent gives consent voluntarily, officers may search the areas to which they understand the consent to extend.

• Cannot exceed scope of consent
• Must be voluntary (no threats, compulsion, or false assertion of lawful authority

Tip: a cotenant can consent to search of areas over which he has control but other cotenants who are present may revoke the consent.

Question 18

What does the exclusionary rule for 4th amendment do?

Answer 18

Excludes evidence obtained as a result of the government’s violation of the 4th Amendment

 Also excludes “fruits of the poisonous tree”—other evidence obtained as a result of the violation

Question 19

What are the 5 exceptions to the exclusionary rule?

Answer 19

But, it can still be used (SIICKA)

if D does not have standing,

for impeachment,

if discovery was inevitable (or if there was an independent source or the taint disappeared),

in civil (and other non-criminal) proceedings,

or if the knock and announce rule was violated.

Attenuation

(Standing, Impeachment, inevitable discovery, civil proceedings, knock and announce)

3) Passage of Time (Attenuation)
The chain of causation between the primary taint and the evidence has been so attenuated as to “purge” the taint. Both the passage of time and/or intervening events may attenuate the taint.

Question 20

What does the 5th amendment protect?

Answer 20

• Provides that no person shall be compelled in a criminal case to testify against himself
• Often called the right against self-incrimination

• Applies to testimonial evidence coercively obtained by police

Question 21

Miranda Warnings

Answer 21

o Required to give warnings prior to custodial interrogation
o Custody—defendant reasonably believes he is not free to leave or is otherwise deprived of freedom

o Interrogation—police expressly question defendant OR police words or actions are likely to elicit an incriminating response

Exam Tip 5: Police line-up—if the defendant is placed in a line-up, that is not a custodial interrogation under the 5th Amendment

Question 22

How to waive Miranda rights

Answer 22

o Must be knowing and voluntary

 Voluntary—cannot be the result of government coercion

o Silence is not sufficient to invoke or waive Miranda rights

o Must make an affirmative statement

Question 23

Are statements made after a defendant invokes their right to silence under Miranda admissible?

Answer 23

o After a defendant receives Miranda warnings and does not invoke the right to remain silent, the defendant might decide to make an uncoerced statement to police

o This constitutes a waiver of Miranda rights

o Police have no obligation to inform the defendant that his attorney is trying to reach him

Question 24

Invoking Miranda Rights, the right to counsel

Answer 24

 Must unambiguously assert the right to counsel
• Police cannot question the defendant any further

 Not offense specific—once the right is invoked, police cannot question the defendant about any crimes

 Ambiguous statement—police are under no duty to clarify or provide counsel

 A subsequent voluntary statement can be admissible

Question 25

Miranda rights, the right to remain silent

Answer 25

Must unambiguously assert the right to remain silent

Question 26

Can you re-approach the defendant after they have invoked their Miranda rights?

Answer 26

After invoking rights, police may not re-approach the defendant later

 Exception—if there is a break in custody for 14 days or more, police may re-approach the defendant, give fresh Miranda warnings, and attempt to get a waiver

: To clarify, the 14-day break applies only to re-approaching a suspect who has invoked the right to counsel. There is not a specific amount of time that must elapse before police may re-approach a suspect who has invoked the right to remain silent

Question 27

Factors for determining voluntariness of conduct

Answer 27

o Involuntary confession—inadmissible for any purpose
o Based on the totality of the circumstances:

 Police conduct
 Defendant’s characteristics (age, education, experience)
 Timing of statemen

Question 28

Is a confession valid if initially made under miranda incorrectly, and then re-read and confesses again?

Answer 28

a. Second confession
 Arises when a confession is obtained in violation of Miranda, then later the rights are read, and the defendant waives and confesses again

 May be admissible if the initial confession was the result of a good faith mistake

Question 29

If a miranda violation occurs, is the physical evidence not valid?

Answer 29

Any physical fruits of a voluntary confession can be admissible evidence.

Question 30

What use is a statement made in violation of miranda?

Answer 30

b. Voluntary statement in violation of Miranda
 Excluded as substantive evidence
 Admissible as impeachment evidence if inconsistent with later testimony

Question 31

What must a waiver be under Miranda?

Answer 31

• Waiver: a waiver must be “knowing, intelligent, and voluntary.”

Question 32

What does the privledge against self-incrimination not apply to under the 5th amendment?

Answer 32

This privilege protects a witness from having to give testimony against himself. The prosecution may give
use or transaction immunity to the witness to compel the witness to testify.

Tip: This privilege does not apply when the government admits D’s blood, handwriting, or voice against him in court. Further, it does not apply to lineup

Question 33

When does the 6th amendment right to counsel apply?

Answer 33

Automatically applies at all critical stages of prosecution after formal proceedings begin

Question 34

What is a formal proceeding under the 6th amendment?

Answer 34

Formal proceedings—indictment or formal charge

Critical stages include: post-charge in person line-ups and
questioning by a government informant (even if the defendant is not aware).

This right exists for post-charge lineups and show-ups but not photo identifications, finger printing, or other
forms of identification. There is no right to counsel for a pre-charge lineup, as this right attaches upon being charged!

Question 35

Can police ask defendant about other crimes they haven’t been charged with after bring a charged with a separate one, and there is not attorney present?

Answer 35

Offense specific—does not prevent the police from questioning the defendant about other crimes that have not been formally charged

Question 36

Limitations on lineups under the Due Process Clause

Answer 36

• Must not be conducted in a manner that is impermissibly suggestive or provides a substantial likelihood of misidentification

Example 5: If the defendant is the only male and the other people in the lineup are female, this is impermissibly suggestive.

Question 37

Burden of Proof for Criminal Trials and WHO must prove it

Answer 37

Prosecution must prove all elements of the crime beyond a reasonable doubt

Example 6: From a recent question: a jury instruction told the jurors to presume that an element of the offense had been met. This took the burden of proof away from the prosecution and violated the Due Process Clause.

Question 38

What can be used to INCREASE a sentence beyond the statutory maximum?

Answer 38

2. Sentencing

Any fact, other than a prior conviction, that is used to increase the sentence beyond thestatutory maximum, must be charged and proved beyond a reasonable doubt.

Editorial Note 2: This rule applies when the fact could increase the sentence beyond the maximum prescribed by statute

Question 39

What does the Double Jeopardy protect against under the 5th amendment

Answer 39

o Provides protections against:

1) Prosecution for the same offense after acquittal;
2) Prosecution for the same offense after conviction; and
3) Multiple punishments for the same offense

Question 40

What is the Blockburger Test?

Answer 40

Same v. separate offenses (Blockburger test)—each crime must require proof of an element that the other does not to be considered a separate offense

Exam Tip 7: This may arise when you are given two statutes. You have to make sure that each requires an element that the other does not. If this standard is not met, they may be viewed as the same offense and subject to a Double Jeopardy objection.

Question 41

Can you get convicted for both a Greater and Less crime?

Answer 41

Double Jeopardy Prohibits multiple prosecutions of greater and lesser-included offenses

 Permissible to charge a defendant with a greater and lesser-included offense in the same action

Example 7: May charge the defendant with felony murder (greater offense) and robbery (lesser-included offense).

Question 42

When does double jeopardy “attatch”

Answer 42

• No person shall be “subject for the same offense to be twice put in jeopardy of life or limb.”

• Jeopardy “attaches” when the jury is impaneled and sworn in a jury trial or when the first witness is sworn in a bench trial. The Double Jeopardy Clause prevents both reprosecution after acquittal and after
conviction (if the guilty verdict was set aside due to insufficient evidence presented at trial), and reprosecution for the same offense.

Question 43

How far does the right of effective assistance of counsel under the 6th amendment go?

Answer 43

Each D has the right to effective assistance of counsel. This extends to the first appeal.

Question 44

How to prove ineffective assistance to counsel

Answer 44

In order to prove ineffective assistance of counsel, D must show that

1) his lawyer’s performance was deficient and fell below an objective standard of reasonableness and
2) there is a reasonable probability that but for the ineffective assistance, the result would be different.

Tip: this is difficult to show!

Question 45

When can defendant plead guilty ?

Answer 45

6th amendment D may choose to plead guilty instead of going to trial

Question 46

When can defendant withdraw a guilty plea?

Answer 46

l. D may withdraw a guilty plea before sentencing at any time.

If sentencing has taken place, D must show a fair and just reason to withdraw it (e.g., counsel was ineffective, the plea was involuntary, the prosecutor did not act as promised, or the wrong court heard the plea).

Question 47

8th amendment against cruel and unusual punishment: What punishment is acceptable?

Answer 47

Punishment cannot be excessive in comparison to the crime

Question 48

Who cannot be given the death penalty under the 8th amendment?

Answer 48

There are some defendants who cannot be given the death penalty—e.g.,

1) those with an intellectual disability;
2) those who are insane at the time the execution is set;
3) those who were minors when they committed a crime;
4) those who rape a person if the victim didn’t die; and
5) those who are convicted of felony murder but “neither took life, attempted to take life, nor intended to take life” (e.g., the getaway driver).

Question 49

Appealing on an error: harmless vs plain error

Answer 49

D must demonstrate an error was made at trial.

A plain error is one that affects his substantial rights and is appealable even if not objected to during trial.

A harmless error will not serve to overturn a verdict.

The government must prove beyond a reasonable doubt that the error was harmless.

Question 50

When is the 14th amendment implicated in criminal procedure?

Answer 50

• Fourteenth Amendment due process: this applies when police engage in coercive conduct that overcomes the suspect’s will.
• Exclusion: an involuntary confession and “fruits” of confession are not admissible for any purpose.

Question 51

Are terry stops consdierd custodial interrogoation for Miranda

Answer 51

NOPE theyre generally not consdiered long enough and you’re free to go I FGUCKING GHESS

Question 52

Due Process and affirmative defense

Answer 52

Due proicess doesnt apply to affirmative defense, like insanity so can remove or change it, the staes can