Criminal Procedure

Question 1

HIGH

**4th AMENDMENT SEARCHES

Define

Answer 1

Under the 4th Amendment, a person is granted protection from unreasonable government searches.

A search occurs: when government conduct violates a person’s reasonable expectation of privacy.

Absent an exception, a warrantless search performed by the government is unlawful.

Question 2

HIGH

**SEARCH WARRANT EXCEPTIONS (7)

Answer 2

Absent any of the seven exceptions listed below, a warrantless search performed by the government that violates a reasonable expectation of privacy is unlawful.

Evidence obtained without a warrant is usually excluded unless an exception applies. Think of the seven exceptions to the warrant requirement as seven E.S.C.A.P.E.S. from the warrant requirement:

1. Exigent circumstances
2. Search incident to lawful arrest (SILA)
3. Consent
4. Automobiles
5. Plain View
6. Evidence obtained from administrative searches
7. Stop and frisk

Question 3

HIGH

**CUSTODIAL INTERROGATIONS

DEFINE

Answer 3

Under Miranda, any incriminating statement obtained as a result of custodial interrogation (i.e., suspect is in custody and subject to police interrogation) may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights.

1. Custodial. A person is in custody when he reasonably believes that he is not free to leave (e.g., in the back of a police cruiser).
2. Interrogation. A person is subject to an interrogation when the police know or should know that their words or actions are likely to elicit an incriminating response.

Question 4

HIGH

**MIRANDA RIGHTS

LIST (4)

Answer 4

When a person is in custody, the police MUST inform the person of her Miranda rights BEFORE subjecting her to a police interrogation. This includes informing the subject:

1. She has the right to remain silent;
2. Any statement she makes may be used against her in court;
3. She has the right to consult an attorney and to have the attorney present during questioning; AND
4. She has the right to have an attorney appointed if she cannot afford one.

Question 5

HIGH

**MIRANDA WAIVER

Answer 5

A defendant may knowingly and voluntarily waive his Miranda rights.

The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily.

Question 6

HIGH

**INVOCATION OF THE 5th AMENDMENT RIGHT TO REMAIN SILENT

Answer 6

The police MUST cease their interrogation if the party being questioned affirmatively invokes her right to remain silent.

After a substantial period of time, police can go back to the suspect, give Miranda warnings again, and seek to interrogate her further.

Question 7

HIGH

**INVOCATION OF THE 5th AMENDMENT RIGHT TO COUNSEL

Answer 7

The police MUST cease their interrogation if the party being questioned affirmatively invokes her right to counsel.

The interrogation cannot resume until the lawyer is present, the suspect reinitiates the interrogation, or 14 days have passed since the suspect was released from custody.

Question 8

HIGH

**MIRANDA VIOLATIONS

Answer 8

A statement obtained in violation of Miranda is inadmissible in the prosecution’s case-in-chief,

BUT can be admitted to impeach the defendant.

Evidence obtained from a voluntary statement taken in violation of Miranda is admissible. Miranda is violated if:

1. The police fail to give Miranda warnings before a custodial interrogation; OR
2. The police fail to cease interrogation of a person after she has affirmatively invoked her right to remain silent or her right to counsel.

Question 9

HIGH

**MIRANDA EXCEPTIONS

Answer 9

There are three main exceptions to the Miranda requirement. The police are NOT required to give Miranda warnings before questioning a suspect:

1. When the public’s safety is at risk;
2. When the suspect being questioned is not aware that the interrogator is a police officer (e.g., undercover police officers); OR
3. If the questioning is biographical for routine booking purposes.

Question 10

HIGH

**HARMLESS ERROR RULE

Answer 10

If evidence in violation of Miranda is admitted at trial, a guilty verdict will be upheld if the prosecution can prove beyond a reasonable doubt that the error was harmless because the defendant would have been convicted even without the tainted evidence.