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CA Bar Exam > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

4th Amendment

A

The 4th Amendment applicable to the states via the 14th Amendment protects against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.

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2
Q

4th Amendment - Search

A

A person has a reasonable expectation of privacy where there is a physical intrusion by the government (government action) into a constitutionally protected area to obtain information.

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3
Q

4th Amendment - Search In Public

A

There is no reasonable expectation to privacy in things held out to the public, such as conversations.

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4
Q

4th Amendment - Search of Possessions

A

Courts have held that individuals have a reasonable expectation of privacy in that of which they own or possess. Overnight guests have this right to privacy.

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5
Q

4th Amendment - Search with Warrant

A

Issue of a search warrant requires probable cause. The warrant must state with particularity the place to be searched and the items seized, and it must have been issued by a neutral and detached magistrate.

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6
Q

4th Amendment - Search with Warrant Exception: Exigent Circumstances

A

Police may conduct a search or seizure without a warrant if they have probable cause and it is necessary to prevent 1) imminent destruction of evidence, 2) imminent injury to persons, or 3) search for a felony suspect of whom the police are in hot pursuit and reasonably believe has entered particular premises.

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7
Q

4th Amendment - Search With Warrant Exception: Search Incident to a Lawful Arrest

A

When the police are making a lawful arrest, they may search the area within the arrestee’s immediate control (wingspan).

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8
Q

4th Amendment - Search With Warrant Exception: Protective Sweep

A

Police may conduct a protective sweep of all or part of the premises where an arrest takes place if they have a reasonable belief based on specific and articulable facts that other dangerous individuals may be present.

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9
Q

4th Amendment - Search With Warrant Exception: Vehicle Search Following Lawful Arrest

A

Police may search a car and its compartments if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense causing the arrest.

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10
Q

4th Amendment - Search With Warrant Exception: Auto Search In General

A

If police have probable cause to believe that a vehicle contains contraband or evidence of a crime, they may search the whole automobile and any container therein that might contain the objects for which they are searching.

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11
Q

4th Amendment - Search With Warrant Exception: Plain View

A

The police may make a warrantless search if they see an object or contraband in plain view, so long as they are legitimately on the premises or have a right to be in the position to obtain the view.

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12
Q

4th Amendment - Search With Warrant Exception: Stop and Frisk

A

Requires reasonable suspicion (based on the totality of the circumstances) of criminal activity or involvement that is supported by articulable facts. The brief detention may include a pat-down search of outer clothing for weapons and contraband may be seized if discovered and immediately apparent.

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13
Q

4th Amendment - Search With Warrant Exception: Terry Stop

A

A police officer may stop a person without probable cause if they have an articulable and reasonable suspicion of criminal activity. If the officer also reasonably believes the person may be armed and dangerous, they conduct a protective frisk.

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14
Q

4th Amendment - Seizure

A

The exercise of dominion/control by the government over a person (arrest) or thing (seizure of property).

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15
Q

4th Amendment Arrest with Warrant

A

An arrest warrant based on probable cause is required - reasonable belief that the person violated the law - to arrest someone at home.

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16
Q

4th Amendment - Arrest without Warrant

A

There is no warrant required when arresting someone in a public place. If probable cause exists, arrest may be made on reasonably belief that a felony was committed and that suspect in fact did it, or for a misdemeanor committed in presence of the officer.

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17
Q

4th Amendment - Standing

A

No evidence seized in violation of the 4th Amendment may be admitted at trial regardless of its reliability.

Defendant must establish that he/she was directly aggrieved by the illegal conduct.

C/L: Must have had a proprietary or possessory interest in the evidence seized or place searched.

Modernly, individuals have a reasonable expectation of privacy in what they own or possess.

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18
Q

5th Amendment

A

The 5th Amendment applicable to the states via the 14th Amendment provides that no person shall be compelled in any criminal case to be a witness against themselves.

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19
Q

5th Amendment - Custodial Interrogation Statement

A

A statement obtained during a custodial interrogation may not be used against a suspect unless the police inform the suspect of their Miranda Rights.

20
Q

5th Amendment - Public Safety Exception: Limited Interrogation w/o Miranda

A

Under a Public Safety Exception, limited interrogation without Miranda warnings is allowed when police officers ask questions reasonably prompted by a concern for public safety or the safety of the officer.

21
Q

5th Amendment - Privilege Against Self-Incrimination

A

Applies only to testimonial communicative evidence; may be invoked by any witness compelled to testify; D may not refuse to stand up or go through any identification procedure in court.

22
Q

5th Amendment - Waiver

A

Where the defendant takes the stand in his own defense this is an automatic waiver of the 5th, except for preliminary facts.

Once a witness answers a question relating to a subject which admits liability, this admission is a waiver.

23
Q

5th Amendment - Double Jeopardy

A

Protection against prosecution for the same offense. Attaches:

*

24
Q

5th Amendment - Double Jeopardy

A

Protection against prosecution for the same offense.

25
Q

5th Amendment - Effect of Double Jeopardy

A
  • When double jeopardy attaches:
    • Jury trial – Swearing in of jury.
    • Nonjury trial – First witness sworn in
    • When presiding judge ends trial on own motion
  • When double jeopardy does not attach:
    • Mistrials (no intent to cause a mistrial by the prosecution)
    • Hung juries
    • Separate sovereign concept: violate both state and federal law.
      1. Multiple State successive prosecutions.
      2. Does not bar a 2nd prosecution for the same conduct.
  • Appeals
    • Waives the bar against double jeopardy, but when the defendant wins a reversal for insufficiency of evidence, double jeopardy will bar.
26
Q

5th Amendment - Standing

A

5th Amendment rights are personal to the accused. Look for 5th Amendment Violation: Confessions, Miranda Warnings, Interrogations.

27
Q

5th Amendment - Confessions

A
  1. Voluntariness – Due Process: Look to voluntariness of the confession based on the totality of the circumstances.
  2. Admission of coerced confessions: The U.S. Supreme Court ruled that state appeals courts are to determine whether coerced confessions were “harmless error,” rather than simply reversing them because of the constitutional violation.
28
Q

5th Amendment - Miranda Warnings

A

Miranda rights attach only when there is a custodial interrogation of a suspect. A person is in custody when they reasonably believe they are not free to leave. A person is subject to interrogation when the police know or should know their conduct was likely to elicit an incriminating response. When invoking or waiving a Miranda right, the statement must be clear and unambiguous. The defendant must know they are being interrogated by the government in order for Miranda to apply.

29
Q

5th Amendment - Miranda Warnings: Interrogation (Right to Counsel)

A

Once Miranda rights are invoked the police must stop questioning. However, a custodial interrogation may be reinitiated if: 1) the suspect has been re-advised of their Miranda rights; 2) has provided a knowing and voluntary waiver; and 3) either (a) counsel is present; (b) the suspect initiates the communication; or (c) at least 14 days have passed since the suspect was released from custody.

30
Q

6th Amendment - Right to Counsel

A

The accused has the right to counsel in all criminal prosecutions during all critical stages of the proceedings. This right attaches once proceedings have commenced and applies where incarceration may be imposed.

Police may not use deception to elicit statements related to a crime. (Putting an informant in the same cell, even if they don’t ask questions, is a violation, evidence will be suppressed).

31
Q

6th Amendment - Right to Effective Counsel

A

A claim of ineffective counsel requires the defendant show counsel was deficient, and but for the counsel’s errors the trial would have ended differently.

32
Q

6th Amendment - Right to Confront Witness

A

The 6th Amendment applicable to the states via the 14th Amendment gives a criminal defendant the right to confront witnesses against them. An out of court statement violates this right when 1) the statement is testimonial; 2) the declarant is unavailable; 3) the defendant did not have an opportunity to cross-examine the witness before trial.

33
Q

6th Amendment - Right to a Speedy Trial

A

The 6th Amendment guarantees a speedy trial, post-accusation. Factors considered include 1) length of delay; 2) reason for delay; 3) whether the defendant asserted their right; and 4) any potential prejudice to defendant.

34
Q

6th Amendment - Standing

A

Massiah Rule: Statements made in violation of the 6th Amendment right to counsel are inadmissible.

35
Q

8th Amendment - Bail/Excessive Fines

A
  1. Bail
    • Not binding on states.
    • Purpose to assure presence at trial. Bail is excessive if its amount is higher than an amount reasonably calculated to assure presence.
    • Not available in capital cases.
    • Can be denied to defendants considered dangerous to society or likely to flee, if such is shown by clear and convincing evidence.
  2. Excessive Fines
    • Not binding on states.
    • A criminal forfeiture is excessive if it is grossly disproportionate to the law broken.
36
Q

8th Amendment - Cruel and Unusual Punishment

A

Must be both cruel - intent to cause pain or a deliberate indifference that pain will occur and unusual - singled out for prisoner in the state and no other state uses this particular form of punishment.

37
Q

4th/5th/6th Amendment - Exclusionary Rule Analysis: Fruit of the Poisonous Tree Doctrine

A

Evidence seized as a result of an illegality or police misconduct.

38
Q

4th/5th/6th Amendment - Exceptions to the Exclusionary Rule: Dissipation of the Taint

A

Illegality and the evidence is “so attenuated so as to dissipate the taint.”

39
Q

4th/5th/6th Amendment - Exceptions to the Exclusionary Rule: Independent Source Rule

A

Evidence will be admitted where it is obtained from a source independent of the 4th/5th/6th amendment violation.

40
Q

4th/5th/6th Amendment - Exceptions to the Exclusionary Rule: Inevitable Discovery Rule

A

Evidence would have been inevitably discovered through the normal course of police investigation.

41
Q

4th/5th/6th Amendment - Limitations to the Exclusionary Rule: Good Faith Reliance on Warrant

A

Evidence gathered by police acting in good faith who reasonably rely on a search warrant that turns out not to be based on probable cause or technically defective.

42
Q

4th/5th/6th Amendment - Limitations to the Exclusionary Rule: Exception to Good Faith Reliance on Warrant

A

Affiant knew 1) the information he was providing in the affidavit was false, 2) there was lack of probable cause, or 3) warrant was defective on its face.

43
Q

4th Amendment Approach

A
  1. Isolate Evidence
  2. IRAC 4th Amendment
  3. Analyze Procedure
  4. Standing
  5. EX Rule Analysis
  6. Exceptions to EX Rule
  7. Lim on EX Rule
  8. Harmless v. Rev Error
44
Q

Exceptions to 4th Amendment Approach

A
  1. School-Child
  2. Exigent Circum
  3. Search Incident
  4. Auto Search
  5. Impoundment
  6. Inventory
  7. Plain View
  8. Stop & Frisk
  9. Consent
  10. Public Policy
  11. Licensing/Admin
  12. Probation/Parole
45
Q

5th Amendment Approach - Confessions

A

Voluntariness – Due Process

46
Q

5th Amendment - Miranda Warnings Approach

A
  1. Warnings Invoked
  2. Custody
  3. Interrogation
  4. Waiver
  5. Standing
  6. Effect Of Third Party Statements
  7. Effect of Violation
47
Q

6th Amendment Approach

A
  1. Isolate Evidence
  2. IRAC 6th Amendment
  3. Analyze Procedure
  4. Standing
  5. EX Rule Analysis
  6. Exceptions to EX Rule
  7. Lim on EX Rule
  8. Harmless v. Rev Error

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