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Bar Exam > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

1
Q

When is an officer entitled to conduct a Terry Stop?

A

When the officer has a reasonable suspicion, based on articulate facts to believe the suspect is or is about to be engaged in criminal behavior.

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2
Q

What is the burden hierarchy for conviction, arrest, and stop?

A
  1. Beyond a reasonable doubt –> conviction
  2. Probable cause –>arrest
  3. Reasonable suspicion –> stop
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3
Q

What physical contact can an officer make with a suspect during a Terry stop and can they take the evidence?

A

An officer may pat down a detainee for weapons, but may not frisk for evidence. If the pat down reveals an object which makes the shape obvious (like a gun or knife), the officer can seize those objects. If probable cause arises during a Terry stop, the officer can make an arrest.

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4
Q

What are the consequences of a stop that is not based on adequate suspicion?

A

If the initial stop is unlawful, but the officer develops the basis for a lawful arrest, the evidence seized can be used at trial
If the arrest is unlawful, the evidence cannot be used at trial.

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5
Q

What is required for an officer to make a traffic stop? Once there is a lawful stop, may the officers search the individual?

A

Officers must have reasonable suspicion to stop a car. If lawful, officers may pat down an occupant for weapons if they have reasonable suspicion that the person has a weapon.

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6
Q

What are the requirements of a valid arrest warrant?

A
  • issued by a neutral and detached magistrate
  • based on a finding of probable cause to believe the individual has committed a crime
    must name the person and identify the property
    allows the officer to enter the individual’s home and arrest them
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7
Q

Does a valid arrest warrant allow officers to search an individual’s home or arrest them in a 3rd party home?

A

Officers must have a search warrant to search the property for the individual. Officers may not enter a third party’s home or business

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8
Q

What are the two circumstances where an officer may arrest someone in a dwelling without an arrest warrant?

A

If there are exigent circumstances or if there is consent to enter the dwelling.

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9
Q

When may an officer make a warrantless arrest? Distinguish between felonies and misdemeanor crimes.

A

an officer may make an arrest in a public place, either for a misdemeanor or felony committed in their presence, or if they have probable cause to believe the individual committed a felony.

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10
Q

What areas are an officer allowed to search incident to a lawful arrest? Home, street, car, surrounding areas.

A

Permits the officer to make a search of the person arrested and the immediate surrounding areas. Any evidence found during a search incident to a lawful arrest may be used against the defendant.
Street: search the suspect’s wingspan and person
Home: search the suspect and IMMEDIATE surrounding area
Car: search passenger compartment as long as the person has access to the vehicle. Officers cannot arrest, put them in squad car, then go back and search the vehicle UNLESS it is reasonable to believe that the car has evidence of the offense of the arrest

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11
Q

What is the special rule for cell phones incident to a lawful arrest?

A

Officers may seize the phone, but they need a warrant to search its contents for digital information.

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12
Q

Where do you have a reasonable expectation of privacy against the government?

A 
homes
offices
hotel/motel rooms
luggage
backyard and curtilage of your home
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13
Q

where do you NOT have a reasonable expectation of privacy against the government?

A

Public streets
open fields even if private property
garbage cans on street
abandoned property
Remember, government’s actions are valid unless the DEFENDANT has the reasonable expectation of privacy
- Bank records
- Things exposed to public view (eg, open fields, abandoned property)
- Physical characteristics (eg, handwriting, vocal sound)
- Conversations with undercover officers & informants
- Pen registers (ie, records of dialed telephone numbers)
- Smells emanating from cars & other items
- Prison inmate’s cell
- Automobile’s vehicle identification number (VIN)

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14
Q

What is the consequence of an invalid search warrant?

A

Items seized pursuant to it will be excluded from the prosecutor’s case in chief.

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15
Q

What are the seven major exceptions to the search warrant requirement? ESCAPES

A 
Exigent circumstances
search incident to arrest
consent
automobiles
plain view
evidence obtained from admin search
stop and frisk
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16
Q

what is the standard used to determine if a conviction should be overturned due to an involuntarily obtained statement?

A

Harmless error standard.
Evidence obtained as a result of an involuntary statement (“tell us where the body’s buried” while at gunpoint) is fruit of the poisonous tree and is presumptive inadmissible.

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17
Q

Consequence of statements obtained in violation of Miranda?

A

Inadmissible in the prosecution’s case, but may be admitted in order to impeach the defendant to challenge his credibility.
Evidence obtained as a result of a voluntary statement taken in violation of Miranda is also admissible.

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18
Q

When does the 6th Amendment right to counsel attach?

A

When the defendant is formally charged, indicted, informed, or other formal charges. Regardless of whether the defendant knew about it.

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19
Q

What charges does the 6th Amendment right to counsel apply to?

A

Only to the offense for which he has actually been charged and any lesser-included offenses. With respect to unrelated charges, the defendant can be questioned either expressly or through undercover agents.

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20
Q

What kinds of charges does the 6th Amendment right to counsel apply?

A

Felony prosecutions and any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed.

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21
Q

What stages of the prosecution does the 6th Amendment right to counsel apply?

A

all critical stages

  • evidentiary hearings
  • post-indictment lineups
  • post indictment interrogations
  • all parts of the trial, including guilty pleas and sentencing
  • appeals as of right but this comes from the equal protection clause not the 6th amendment
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22
Q

Does a defendant have a right to counsel present at a photo array?

A

No, but the police must turn over the array to the defendant to make sure it’s not overly suggestive.

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23
Q

What is the exclusionary rule and when does it apply?

A

Rule: illegally obtained evidence, either physical obtained by an illegal search or a statement obtained through an illegal interrogation is inadmissible at criminal trial.
It applies at TRIAL, not to pretrial proceedings (grand jury)

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24
Q

Who has standing to challenge bad evidence IAW the exclusionary rule?

A

The defendant’s rights must have been violated.
Example: Lucy is arrested but police do not give her Miranda warnings. If she makes a statement that she robbed a bank with you, you cannot suppress her statements at your trial because it was a violation of Lucy’s 4th amendment rights and not yours.

25
Q

What are the 5 1/2 exceptions to the exclusionary rule?

A
  1. Knock and announce; failure to knock and announce does not require evidence to be suppressed (so long as they had standing to enter in the first place)
  2. Inevitable discovery
  3. Independent source: evidence discovered on the basis of an independent source is admissible
  4. Attenuation in the causal chain: intervening events/passage of time
  5. GOOD FAITH: relying on an existing law that changes after the fact or a warrant that they believed was good but turned out to be bad.
  6. 5 Isolated negligence by police
26
Q

what is the requirement of the 5th Amendment’s Presentment clause as to initiate felony charges

A

all felony charges must be initiated by indictment by a grand jury unless waived by the defendant. An indictment requires probable cause to beleive the defendant committed the crimes charged.

27
Q

when proceeding by information rather than grand jury what must happen first?

A

States may choose to indict by information. If so, there must be a preliminary hearing before a neutral judge to determine whether there is probable cause.

28
Q

Does a grand jury proceeding have to be a unanimous jury?

A

NO - majority vote is ok

29
Q

Does a defendant have the right to testify before the grand jury or call witnesses?

A

Nope

30
Q

what’s the test to determine if a defendant is competent to stand trial?

A

Does defendant understand the nature of the proceedings against him and can assist his lawyer in his defense.
If a defendant is competent to stand trial, he’s also competent to plead guilty or waive the right to trial.

31
Q

When a defendant pleads guilty, what does he waive his right to?

A

Waiver of trial rights, including right to put the prosecution to its proof, to confront and produce witnesses, to trial by jury, to challenge evidence, and to appeal if there’s a conviction.

32
Q

What does a judge have to inform a defendant when he pleads guilty?

A

Plea allocution, the judge must:

  • inform of rights and ensures the defendant understands them
  • informs of possible sentences
  • informs of immigration consequences
  • MUST inquire to ensure there’s a factual basis for the plea
  • determines the guilty plea was not coerced, forced, threatened, etc.
33
Q

When does the 6th Amendment right to a jury trial attach?

A

For all serious offenses for which the authorized punishment may exceed 6 months of jail.

34
Q

What’s the jury size / unanimous requirement for federal and state criminal trials?

A

Fed: 12 jurors and must be unanimous
States: 6 or more jurors and requires unanimous vote

35
Q

What’s the requirement for a venire of potential jurors?

A

Fair representation / cross-section of the community from which no distinctive group is excluded.
Note the actual jury must be impartial but does not have to reflect a fair cross-section of the community.

36
Q

what are for-cause challenges to jury selection and how many do you get?

A

They ensure an impartial jury. Jurors may be removed for cause when they reveal something that prevents them from being impartial and deliberating fairly. No LIMIT

37
Q

What are peremptory challenges and how many is each side entitled to?

A

Generally made for any reason, including hunches. Cannot be made on basis of race or gender (BATSON doctrine).

Each side is statutorily limited in the number of challenges.

38
Q

When does a crime’s statute of limitations begin to run?

A

When the crime occurs or when the conspiracy ends for ongoing crimes.

39
Q

What are the four factors used to examine a speedy trial claim?

A

Delay that occurs between the time of arrest/indictment and trial.

  1. length of the delay
  2. reasons for the delay
  3. did defendant assert his right to a speedy trial
  4. risk of prejudice to the defendant
40
Q

What is the Crawford Doctrine as it applies to evidence/criminal procedure?

A

Testimonial statements made outside of court are barred admission if:

  1. the declarant is unavailable to testify at trial and
  2. the defendant had no prior opportunity to cross-examine the witness
41
Q

Define “testimonial” under the Crawford Doctrine

A

A statement made under circumstances which would lead a reasonable person to believe that the statement would be used at a later trial.

42
Q

What is the Bruton doctrine as it applies to a defendant’s statements and his/her co-defendant’s statements?

A

A defendant’s own statements are always admissible against him.
If there are co-defendants, a non-testifying co-defendant’s statements are NOT admissible against the other defendant.

43
Q

What are the burden of proof requirements on the prosecution with regards to the elements of a crime? Distinguish from the requirements for elements of an affirmative defense.

A

Constitutionally, P must prove every element of a crime beyond a reasonable doubt.
The government can place the burden of proof with regards to affirmative defense on the defendant or eliminate them entirely.

44
Q

Under the Brady doctrine, what must the prosecution turn over to the defense?

A

All exculpatory evidence, including:

  1. evidence that tends to show the defendant is not guilty; and
  2. evidence that would allow the defense to impeach the credibility of the prosecution’s witnesses
45
Q

What is material evidence under the Brady doctrine?

A

Any material evidence could change the outcome of the case. It includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses. All evidence within the control of the government, including the police

46
Q

If a defendant pleads guilty after negotiations, is the prosecution required to present brady evidence?

A

No. But many DAs have an open door policy and will allow the defense to see all of their information.

47
Q

How might a prosecutor violate a defendant’s 6th and 5th amendment rights?

A

By talking to a defendant (or directing someone to talk to a defendant) outside of his counsel.
May also not comment on a defendant’s failure to testify at trial or make unfair remarks to the jury.
CAN comment on a defendant’s silence before miranda rights attached.

48
Q

What are two potential consequences of prosecutorial misconduct?

A

If it had the possibility of affecting the verdict, it may require a retrial or reversal of conviction.

49
Q

What is the effect of a defense counsel’s conflict of interest as it pertains to co-defendants?

A

a judge must warn the defendants of the conflict and provide them the opportunity to seek separate counsel. Defendants must provide written and affirmative waiver.

50
Q

What is the two step Strickland test regarding ineffective assistance of counsel?

A

Performance: did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in?
Prejudice: there is a reasonable probability that had counsel performed effectively, the result would have been different.

Note: there is a presumption of reasonable competence.
Note: Tactical choices rarely fail to meet the standard of reasonableness so long as the attorney does have a tactical reason for making such a choice.

51
Q

What must happen in the event that a defendant can accurately prove he was denied ineffective counsel?

A

His conviction MUST be reversed.

52
Q

What must a defendant prove for ineffective assistance of counsel when (1) a case goes to trial, and (2) a guilty plea

A

Trial: d must show there was a reasonable probability that he would not have been indicted had the lawyer done a proper job
Guilty: D must show that he would not have plead guilty if his lawyer had not given bad advice

53
Q

Who is not subject to the death penalty?

A

Persons under 18
Cognitively impaired persons
Defendants who are legally insane at the time of execution

54
Q

What are the three separate protections of the double jeopardy clause?

A
  1. Protection against prosecution for the same offense after acquittal.
  2. Protection against prosecution for the same offense after conviction.
  3. Protection against multiple prosecutions or punishments for the same offense
55
Q

What is the Blockburger test for “same offense”?

A 
If a defendant's conduct may be prosecuted as two or more crimes, the test is applied to determine whether the crimes constitute the "same offense" for jeopardy purposes. Eac crime must require the proof of an element that the other does not in order to be a separate offense.
Ex. 1 (no jeopardy): D shoots and kills a store clerk and robs the store. D is prosecuted and acquitted of premeditated murder. The state then charges D with robbery. Robbery and premeditated murder each have separate elements.
Ex 2 (jeopardy): D robs, shoots and kills a store clerk. D is acquitted of felony murder. State cannot bring up robbery charges because robbery is a lesser included offense of felony murder. In the first trial, prosecution would have had to prove that defendant committed robbery.
56
Q

When does jeopardy attach?

A

When the jury is sworn in or at a bench trial, when the first witness is sworn in. Before this the prosecutor may add, drop or change the charges against a defendant without double jeopardy problems.

57
Q

What are the two types of mistrials and what is the effect on the defendant?

A

Manifest necessity: defendant can be retried. (deadlocked jury or counsel misconduct)
No manifest necessity: defendant cannot be retried by that jurisdiction.

58
Q

What is the Apprendi doctrine under the Sixth Amendment?

A

Prohibits the judge from enhancing criminal sentences beyond the statutory maximums based on facts other than those decided by a jury beyond a reasonable doubt. UNLESS the sentence enhancement was based on prior criminal convictions.

Bar Exam (8 decks)

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