Criminal Procedure

Question 1

What is meant by “open fields” for Fourth Amendment considerations?

Answer 1

Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the home’s umbrella of Fourth Amendment protection. Under the “open fields” doctrine, governmental intrusion on such property is not a search.

Note: The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and “no trespassing” signs are posted.

Question 2

When does “hot pursuit” constitute an exigent circumstance that excuses the search warrant requirement?

Answer 2

When the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him.

If the police have probable cause to believe that the suspect has committed a misdemeanor, then the police may act without waiting for a warrant if the totality of the circumstances shows an emergency.

Question 3

What is required to arrest an individual in the individual’s home?

Answer 3

The police must have a warrant to arrest an individual in the individual’s own home, absent exigent circumstances or valid consent to enter the arrestee’s home.

A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have reason to believe that the arrestee is present.

Question 4

(1) What is the two-prong test to determine the admissibility of a pre- or post-indictment corporeal or non-corporeal identification procedure?
(2) What five factors must be considered in that determination?

Answer 4

(1) The defendant must demonstrate that
(i) the procedure was impermissibly suggestive and
(ii) there was a substantial likelihood of misidentification.
(2) The court must consider:
(i) The witness’s opportunity to view the defendant at the time of the crime;
(ii) The witness’s degree of attention at the time of the crime;
(iii) The accuracy of the witness’s description of the defendant prior to the identification;
(iv) The level of certainty at the time of the identification; and
(v) The length of time between the crime and the identification.

Question 5

What are the seven types of exceptions to the search warrant requirement?

Answer 5

(1) Searches incident to a lawful arrest
(2) Exigent circumstances
(3) Stop and frisk (i.e., Terry stops)
(4) Automobiles
(5) The ““plain-view”” doctrine
(6) Consent searches
(7) Administrative, special needs, and inventory searches

Question 6

What are the requirements of a valid arrest warrant?

Answer 6

It must be issued by a detached/neutral magistrate upon finding of probable cause and describe with particularity the defendant and the crime.

Question 7

Do prison inmates have a reasonable expectation of privacy in their cells?

Answer 7

Prison inmates have no reasonable expectation of privacy in their cells. The limitations on Fourth Amendment rights are justified by the need to maintain
institutional security and preserve internal order and discipline.

Note: Unlike a convict, a pretrial detainee may have a limited expectation of privacy in his cell. However, a detainee’s cell may be subject to a routine search, and the detainee’s person may be subject to a strip search or a full-body search after a contact visit with someone from the outside.

Question 8

May law enforcement randomly stop vehicles on public roadways?

Answer 8

No. Police may generally not stop an automobile, even for a driving-related matter, without a reasonable, individualized suspicion of a violation of the law, unless the stop is effected on the basis of neutral, articulable standards.

Question 9

What are the three requirements for a statutory scheme imposing a death penalty to be constitutional?

Answer 9

The statutory scheme must provide:

(i) Clear and objective standards;
(ii) Specific and detailed guidance; and
(iii) An opportunity for rational review of the process.

Question 10

May a checkpoint be used to search for individuals?

Answer 10

A checkpoint maintained by police for the purpose of finding witnesses to a crime (rather than suspects) is not per se unreasonable, as long as:

(i) the checkpoint stop’s primary law enforcement purpose is to elicit evidence to help them apprehend not the vehicle’s occupants but other individuals;
(ii) the stop advanced a public concern to a significant degree; and
(iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment.

Question 11

What is required for a defendant to have standing to challenge governmental conduct as a violation of the Fourth Amendment protection against unreasonable searches and seizures?

Answer 11

(i) The defendant himself has been seized; or
(ii) He has a reasonable expectation of privacy with regard to the place searched or the item seized.

Note: It is not enough that the introduction as evidence of an item seized may incriminate the defendant or that the evidence was seized from a co-conspirator.

Question 12

What is the test to determine whether a person has been “seized” for the purposes of the Fourth Amendment?

Answer 12

A seizure occurs only if, in view of the totality of the circumstances, a reasonable innocent person would believe he was not free to leave.

Note: The police officer must intentionally employ physical force or a show of authority in order for the officer’s actions to result in a seizure, but the officer need not intend to detain the defendant.

Question 13

What is the “knock and announce” rule?

Answer 13

When executing either a search or an arrest warrant, must generally announce his purpose before entering.

Note: Violation of the “knock and announce” rule does not trigger the exclusionary rule.

Question 14

When/where are police officers permitted to make warrantless arrests?

Answer 14

(i) In public places;
(ii) For crimes occurring in the arresting party’s presence; or
(iii) If the officer has probable cause to believe the arrested party has committed a felony.

Note: An unlawful arrest alone has no bearing on a subsequent criminal prosecution, and it is not a defense to the crime charged.

Question 15

What is a “protective sweep,” and when is it permitted?

Answer 15

A “protective sweep” is a quick and limited visual inspection of places immediately adjacent to the place of an arrest in which a person might be hiding. It is permitted as a search incident to a lawful arrest that occurs in a home, even without probable cause or reasonable suspicion.

Question 16

When is a warrantless search of a vehicle permitted as a search incident to a lawful arrest?

Answer 16

When law enforcement demonstrate either that:

(i) The arrestee is within reaching distance of the passenger compartment and 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
(ii) That it is reasonable that evidence of the offense of arrest might be found in the vehicle.

Question 17

What is the plain-error doctrine?

Answer 17

A defendant who has failed to preserve a claim of error in district court is still entitled to appellate relief when:

(i) The district court committed error under the law in effect at the time the appeal is heard;
(ii) The error is obvious under that law; and
(iii) The error affected the defendant’s substantial rights.

Question 18

When is a search of an automobile permitted as an exception to the search warrant requirement?

Answer 18

When police have probable cause, they may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers.

Note: Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for.

Question 19

When is a defendant unable to suppress evidence seized in a search of the defendant’s property pursuant to a third-party’s consent?

Answer 19

The defendant can generally suppress evidence seized during such a search unless:

(i) The 3P was an agent of the [D] w/the ability to consent for [D]; or
(ii) The defendant otherwise gives the 3P such rights and assumes the risk that the 3P would allow the property to be searched.

Question 20

What is the generally permitted scope of a warrantless search made incident to a lawful arrest?

Answer 20

A lawful arrest justifies a warrantless contemporaneous search of the person arrested and his “wingspan” (i.e., the immediately surrounding area from which a weapon may be concealed or evidence destroyed).

Question 21

Are searches conducted by private citizens prohibited by the Fourth Amendment?

Answer 21

No, the Fourth Amendment applies to government action, not searches made by private citizens.

The police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

Question 22

What is the exclusionary rule?

Answer 22

Under the exclusionary rule, evidence obtained in violation of the accused’s Fourth, Fifth, or Sixth Amendment rights may not be introduced at her trial to prove her guilt (unless an exception applies).

Question 23

What is curtilage and why is it important?

Answer 23

In addition to the home itself, an area immediately surrounding the home known as the “curtilage” may be covered by the “umbrella” of the home’s Fourth Amendment protection.

In determining whether the area is protected, the following four-factor test applies:

i) The proximity of the area to the home; ii) Whether the area is included within an enclosure surrounding the home; iii) The nature of the uses to which the area is put; and iv) The steps taken by the resident to protect the area from observation by passersby.

Question 24

What must a claimant show to reverse a conviction based on ineffective assistance of counsel?

Answer 24

(i) Counsel’s representation fell below an objective standard of reasonableness; and
(ii) Counsel’s deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different.

Question 25

What are the seven exceptions to the exclusionary rule?

Answer 25

(1) Inevitable discovery rule - the evidence would have been inevitably discovered in the same condition through lawful means
(2) Independent source doctrine - the evidence was discovered in part by an independent source unrelated to the tainted evidence.
(3) Attenuation principle - the chain of causation between the primary taint and the evidence has been so attenuated, by time and/or intervening events, as to “purge” the taint.
(4) Good-faith exception - police officers acted in good faith on either a facially valid warrant or an existing law later declared unconstitutional.
(5) Isolated police negligence - the police conduct was not sufficiently deliberate such that the exclusionary rule could deter it.
(6) Knock and Announce - the search was a violation of the ““knock and announce”” rule.
(7) In-court Identification - the evidence is a witness’s in-court identification of the defendant.

Question 26

How is a prima facie case for absence of a representative cross-section in a jury established?

Answer 26

By showing that:

(i) The group allegedly excluded is a “distinctive” group in the community;
(ii) The group was not fairly represented in the venire from which the jury was chosen; and
(iii) The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process.

Question 27

What is the good-faith exception to the exclusionary rule?

Answer 27

The exclusionary rule does not apply to police officers who act in good faith on either (i) a facially valid warrant later determined to be invalid or (ii) an existing law later declared unconstitutional.

Question 28

Name the five situations where the good-faith exception to the exclusionary rule does not apply.

Answer 28

If:

(i) No reasonable officer would rely on the affidavit underlying the warrant;
(ii) The warrant is defective on its face;
(iii) The warrant was obtained by fraud;
(iv) The magistrate has “wholly abandoned his judicial role”; or
(v) The warrant was improperly executed.

Question 29

What is the privilege against self-incrimination, and to what evidence and proceedings does it apply?

Answer 29

No person shall be compelled in a criminal case to testify against himself. It protects only testimonial evidence, and applies in any proceeding if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings.

Question 30

What is a “stop,” and when is it justified?

Answer 30

A stop (i.e., Terry stop) is limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest.
A stop is justified on the reasonable suspicion, based upon articulable facts and the totality of the circumstances, that the detainees are or were involved in illegal activity.

Question 31

What constitutes an unreasonable search for the purposes of the Fourth Amendment?

Answer 31

An unreasonable search occurs when the government:

(1) invades a place protected by a reasonable expectation of privacy, or
(2) physically intrudes upon a constitutionally protected area (persons, houses, papers, or effects) for the purpose of gathering information.

Question 32

How is the right to remain silent invoked under the Fifth Amendment, and what is the effect of invoking this right?

Answer 32

The defendant must make a specific, unambiguous statement asserting his desire to remain silent. If a defendant does so, the interrogator(s) must “scrupulously honor” that request.

Note: Merely remaining silent in response to police questioning does not invoke the privilege. However, post-arrest silence by a defendant who has received Miranda warnings generally may not be used by the prosecution as either impeachment or substantive evidence without violating the defendant’s right to due process.

Question 33

What are three exceptions to the Miranda requirements?

Answer 33

(1) Public safety;
(2) Routine booking questions; and
(3) Undercover police.

Question 34

What is the court required to find in order to accept a criminal defendant’s guilty plea?

Answer 34

The judge must determine that the plea is both intelligent and voluntary.

Voluntary: The plea did not result from force or improper threats or from promises other than those contained in the plea agreement.

Intelligent: The defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea, and (iii) the rights that the defendant is waiving.

Question 35

When and how may statements obtained in violation of Miranda be used at trial?

Answer 35

Voluntary and trustworthy statements may be used as impeachment evidence.

Question 36

When are the fruits of a non-Mirandized confession admissible?

Answer 36

Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced.

Question 37

What is the three-prong test to determine whether a peremptory challenge has been exercised based on race in violation of the Equal Protection Clause of the Fourteenth Amendment (i.e., Batson test)?

Answer 37

The test requires that:

(i) The moving party establishes a prima facie case of discrimination;
(ii) The party who exercised the challenge provides a race-neutral explanation for the strike;
(iii) The moving party carries her burden of proving that the other party’s proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination.

Note: The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike.

Question 38

Does a motel or hotel patron have an expectation of privacy in the rented room?

Answer 38

As with the search of a home, the search of a motel room by a government agent may be an unreasonable search. The patron enjoys a reasonable expectation of privacy for the duration of the rental agreement.

Note: A motel clerk’s consent to a governmental search of a room during the time it is rented is insufficient to justify the search.

Question 39

State the Blockburger test.

Answer 39

Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not.

Question 40

What is the proper remedy if a right to counsel under the Sixth Amendment is denied at a pleading stage, and the defendant pleaded guilty?

Answer 40

The defendant has the right to withdraw the plea, and it may not be used against the defendant as an evidentiary admission.

Question 41

Does an overnight guest have an expectation of privacy in the home?

Answer 41

An overnight guest does have a reasonable expectation of privacy, at least as to the areas of the home to which the guest has permission to enter.

Question 42

What is the proper remedy if a right to counsel under the Sixth Amendment is denied at a nontrial proceeding?

Answer 42

The denial is subject to harmless-error analysis on appeal.

Question 43

When does the Sixth Amendment right to counsel apply to eyewitness identifications?

Answer 43

A defendant is entitled to have counsel present at any post-indictment lineup or show-up in which the defendant is required to participate. The right to counsel does not apply to any pre-indictment lineup or to non-corporeal identifications (e.g., photo arrays).

Question 44

When does a defendant have a right to a jury trial?

Answer 44

In the federal system, the Sixth Amendment provides the right to jury trials.
In states, the Fourteenth Amendment provides jury trials in criminal cases involving non-petty offenses (i.e., those that carry an authorized sentence of more than six months of imprisonment, regardless of the actual penalty imposed).

Question 45

How many jurors are required under the Constitution, and how many jurors must be in agreement to render a verdict?

Answer 45

A jury of fewer than six members is a denial of due process. A unanimous verdict is constitutionally required of both federal and state juries, regardless of the of the number of jurors.

Note: The Federal Rules of Criminal Procedure require a unanimous vote by a 12-member jury in federal criminal trials, unless waived in writing and approved by the court. A verdict by 11 jurors is permitted if the 12th juror is excused for good cause after deliberations begin.

Question 46

When are presumptions constitutionally permitted in criminal trials, and when are they unconstitutional?

Answer 46

A permissive presumption regarding an element of an offense does not violate due process unless the presumption is irrational (i.e., it is more likely than not to flow from the proven fact on which it depends).

A mandatory presumption regarding an element of an offense violates the due-process requirement.

Question 47

When may police stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law?

Answer 47

The stop must be based on neutral, articulable standards and its purpose must be closely related to an issue affecting automobiles.

A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not.

Question 48

What are the three protections provided by the Fifth Amendment Double Jeopardy Clause?

Answer 48

(i) Protection against a second prosecution for the same offense after acquittal;
(ii) Protection against a second prosecution for the same offense after conviction; and
(iii) Protection against multiple punishments for the same offense.

Question 49

What is an “inventory search?”

Answer 49

Inventory searches are administrative-type searches of items in official custody, such as impounded vehicles. After lawfully taking custody of property, police may conduct a warrantless search of other property to protect the owner’s property while in custody, to protect police from claims of theft, and to protect officers from danger.

Note: Inventory searches must be performed according to standardized criteria and procedures. Subjective intent of the officer is irrelevant.

Question 50

What are (1) transactional immunity, and (2) use and derivative use immunity?

Answer 50

(1) ““Transactional”” (i.e., “blanket” or “total”) immunity fully protects a witness from future prosecution for crimes related to her testimony.
(2) “Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness.

Note: “Use and derivative-use” immunity is all that is constitutionally required to compel the testimony of a witness, and testimony encouraged by a promise of immunity is considered coerced and involuntary.