Criminal Procedure Flashcards
Seizure
Exercise of control by a government agent over a person or thing
Probable Cause
Exists when a reasonably prudent person would believe that a suspect has committed or is committing a crime
Arrest must be based on probable cause
Arrest in a Public Space
Warrant not required
Non-Emergency Arrest of Individual in Her Home
Requires an arrest warrant
Station house dention
Police need probable cause to arrest you and to compel you to come to the police station either for fingerprinting or interrogation
Effect of an Invalid Arrest
Unlawful arrest, by itself, has no impact on any subsequent criminal prosecution
Terry Stops
Police have the authority to briefly detain a person even if they lack probable cause to arrest.
Need reasonable, articulable suspicion of criminal activity
-More than just a vague suspicion and less than probable cause; depends on the totality of circumstances
Informants
When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (incl. predictive information) to be sufficient
Automobile Stops
Police may stop a car if they have at least reasonable suspicion that the law has been violated
Traffic Stops and Police Dogs
During routine traffic stops, a sniff is not a search.
So long as police do not extend the stop beyond normal time needed to issue a ticket or conduct normal inquiries.
A dog alert to the presence of drugs can form the basis for probable cause for a search
NOTE: cannot use drug sniffing dog outside home of a suspected drug dealer
Traffic Stop: Seizure of All Occupants
An automobile stop constitutes a seizure of all occupants (driver and any passengers)
Informational/Checkpoint Roadblocks
If police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional
Traffic Stop: Ordering Occupants Out of the Car
If an automobile is lawfully stopped, an officer may order the occupants out of the car.
Pretextual Stops
An officer’s ulterior motive for stopping an automobile is irrelevant, so long as the stopping of the car was legal.
Government Conduct
Publicly paid police, on or off duty
Private individual acting at the direction of the public police
Privately paid police actions do NOT constitute governmental conduct UNLESS they are deputized with the power to arrest you (store security guards, subdivision police, campus police)
Reasonable Expectation of Privacy/Standing
To object to a governmental search, one must have standing to object to the search.
To have standing, person must have reasonable expectation of privacy in the item or area searched
Automatic Categories of Standing
(1) if you own the premises to be searched
(2) if you live on the premises searched, whether you have ownership interest or not
(3) overnight guests
Standing: Ownership of Property Seized
If you own the property seized, you have standing only if you have a reasonable expectation of privacy in the item or area searched.
“No Standing” Categories
No expectation of privacy in things you hold out to the public every day. No right to privacy in:
(1) sound of your voice
(2) style of your handwriting
(3) paint on the outside of your car
(4) account records held by a bank
(5) monitoring the location of your car on a public street on in your driveway (but NOT installation of a GPS device on car)
(6) anything that can be seen across open fields
(7) anything that can be seen from flying over public air space
(8) odors emanating from your luggage or car
(9) garbage set out on curb for collection
Warrant Requirements
Probable cause and particularity!
(1) Probable cause: a fair probability that contraband or evidence of a crime will be found in the area searched
(2) Particularity: warrant must state with particularity the place to be searched and the things to be seized
Anticipatory Warrant
Warrant can predict when illegal items may be in a suspect’s home/office and the items need not be on the premises at the time the warrant is issued.
Probable Cause and Informants
If an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances.
An informant’s credibility and basis of knowledge are all relevant factors in making this determination.
A valid warrant can be based in part on an informant’s tip even though that informant is anonymous, but cannot be based SOLELY on an anonymous tip
Execution of Warrants
Only the police (and not a private citizen) can execute a search warrant.
When executing a warrant in one’s home, the police may not be accompanied by any third parties (unless the third party is there to aid in identifying stolen property)
Search Incident to Lawful Arrest
Arrest must be lawful. If the arrest is unlawful, then the search is unlawful.
Arrest and search must be contemporaneous in time and place
Search Incident to Lawful Arrest: Geographic Scope
Person and the areas within the person’s wingspan.
Search Incident to Lawful Arrest: Automobiles
Police may search interior of the auto incident to arrest ONLY IF:
(1) arrestee is unsecured and still may gain access to the interior of the vehicle; or
(2) police reasonably believe that the evidence of the offense for which he person was arrested may be found in the vehicle
So long as the search itself is valid, any contraband found may be admissible.
Search of Cell Phone
Police, without a warrant, may not search digital information on a cell phone seized from an arrested individual.
Physical attributes of a cell phone may be searched (but not data)
Automobile Exception
To search anything or anybody under the automobile exception, police must have probable cause
If– before searching anything or anybody police have probable cause– then they can search the ENTIRE car. This includes entire interior compartment, and the trunk.
With probable cause, the police may open (without a warrant) any package, luggage, or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver.
Probable cause necessary to justify the warrantless search of an automobile under the automobile exception CAN arise after the car is stopped.
Probable cause must arise BEFORE anything or anybody is searched.
Plain View
Police officer must be legitimately present at the location where s/he does the viewing of the item seized
It must be immediately apparent that the item is contraband or a fruit of a crime
Consent to Search
For consent to be valid, consent must be voluntary.
Police saying they have a warrant negates consent
Third Party Consent to Search
Where 2 or more people have an equal right to use a piece of property, either can consent to its warrantless search.
If both people are present and one person is objecting, then the one who does not consent controls.
If the objecting occupant who does not consent to a search is removed from the premises for a reason unrelated to the refusal (e.g. a lawful arrest), police may search upon consent of the other occupant.
Anyone with apparent authority can validly consent to a governmental search
Terry Stop
Brief detention for the purpose of investigating suspicious conduct.
Legal standard for stop: reasonable suspicion. This is less than the probable cause standard
Terry Frisk
A pat down of the outer clothing and body to check for weapons
“Plain feel”– cannot manipulate the object
Probable Cause Arises during Investigatory Stop
Detention can become an arrest and the officer could then conduct a full search incident to that arrest.
Terry Frisk: Vehicle
If a vehicle is properly stopped for a traffic violation, and officer reasonably believes that a driver or passenger may be armed and dangerous, officer may
(1) conduct a frisk of the suspected person and
(2) may search the vehicle, so long as it is limited to the areas in which a weapon may be placed.
Evanescent Evidence
Evidence that might disappear quickly if police took the time to get a warranty
NOTE: officers need to get a warrant before taking a blood sample for a DUI arrest (if practical to do so)
Hot Pursuant
Rule of thumb: if police are not within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception
If truly in hot pursuit, can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible
Inventory Searches
Before incarceration of an arrestee, the police may search
(1) the arrestee’s personal belongings and/or
(2) the arrestee’s entire vehicle
Emergency Aid/Community Caretaker Exception
Justifies a warrantless search if an officer faces an emergency that threatens the health or safety or an individual or the public
Public School Searches
Public school children engaged in extracurricular activities can be randomly drug tested. Includes school dances!
Warrantless searches of public school children’s effects, such as purses and/or backpacks is permissible to investigate violations of school rules.
School Search Will be Held to be Reasonable Only if:
(1) offers a moderate chance of finding evidence of wrongdoing and
(2) measures adopted to carry out the search are reasonably related to the objectives of the search, and
(3) searches is not excessively intrusive
Opening International Mail
Permissible border searches include the opening of international mail when there is reasonable cause to believe that the mail contains contraband
Wiretapping and Eavesdropping
All wiretapping and eavesdropping requires a warrant
Wiretapping and Eavesdropping
Unreliable Ear
Everybody in society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired, and therefore no Fourth Amendment objection on the basis that it was a warrantless search
All police cars are wired
Wiretapping and Eavesdropping
Uninvited Ear
A speaker has no Fourth Amendment right if she makes no attempt to keep the conversation private
Shocking Materials
Any act that shocks the conscience used to obtain evidence is unconstitutional
Torture, threatening family
Shocking Inducement
If a crime induced by official actions that shock the conscience, any conviction stemming therefrom is unconstitutional
Confessions: Voluntariness
Fourteenth Amendment
Any confession must be voluntary for it to be admissible at trial
Voluntariness is assessed by the totality of the circumstances
Confessions: Right to Counsel
Sixth Amendment
Defendant is entitled to an attorney during all CRITICAL STAGES of a prosecution after formal proceedings have begun.
Key stages
- post-indictment interrogation
- preliminary hearings to determine probable cause to prosecute
- arraignment
- post-charge lineups
- sentencing
- felony
NOT applicable:
- taking of blood sample
- taking of handwriting samples
- pre-charge lineups
- brief recess during Defendant’s testimony at trial
- parole and probation revocation proceedings
- taking of fingerprints
- photo identification
Right to Counsel: Offense Specific
Sixth Amendment right to counsel only applies to the specific charge for which Defendant has been retained (been given appointed) counsel
Defendant may be questioned on an UNRELATED charge, even though he has counsel for a different charged crime
Pre-Trial Identifications
Due Process Standard
Certain pre-identification techniques are no unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law
Pre-Trial Identifications
Independent Source
The remedy for an unconstitutional pre-trial identification is to exclude the in-court identification unless the State can show that it had an adequate independent source for that in-court identification (independent of that bad lineup)
Most common independent source: victim or witness had an opportunity to observe the Defendant at the time of the crime
Remedy for Violation of the Defendant’s Sixth Amendment Right to Counsel
If Defendant was entitled to a lawyer at trial, the failure to provide counsel will result in an automatic reversal of the conviction
However, at non-trial proceedings, harmless error test applies
Miranda Doctrine
5th Amendment
Required when a suspect is in custodial interrogation.
Warning need not be verbatim, so long as the substance of the warning is conveyed.
Miranda Doctrine: Government Conduct
Only apply to interrogation by the publicly paid police
Does not apply to interrogation where interrogation is by an informant whom the defendant does not know if working for the police
Miranda Doctrine: Custody
Legal standard for custody: in custody if, at the time of the interrogation, a reasonable person would not feel free to leave.
In making this determination, court will determine whether the situation presents the same inherently coercive pressures as a station house questioning
Determining whether one is in custody is an objective test
Miranda Doctrine: Interrogation
Under the Fifth Amendment, interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the subject
Miranda Doctrine: Spontaneous Statement
Miranda warnings are not required prior to admissibility of a spontaneous statement.
Miranda Doctrine:
Invocation v. Waiver
After receiving Miranda warnings, detainee has several options: do nothing, waive his Miranda rights, assert right to remain silent, or assert right to counsel
Miranda Doctrine: Waiver
Must be knowing and voluntary. Courts will employ the totality of circumstances test
Miranda Doctrine: Invoking the Right to Remain Silent
Invoking right to silence must be unambiguous
Police may reinitiate questioning after the defendant has invoked the right to silence if the scrupulously honor the detainee’s request. At very least, may not badger detainee
May reinitiate questioning when police waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning.
Miranda Doctrine: Invoking the Right to Counsel
Right to counsel can be invoked only by an unambiguous request
If accused invokes his right to counsel, all questions must cease until (1) accused is given an attorney or (2) accused initiates further questioning
14-Day Rule
Prohibition against questioning a detainee after he requests counsel lasts the entire time the detainee is in custody, plus 14 days after the detainee is out of custody.
After 14 days, detainee can be questioned regarding the same matter upon receiving a fresh set of Miranda warnings.
Effect of Miranda Violation
Generally, evidence obtained in violation of Miranda is inadmissible at trial
Effect of Miranda Violation: Exception
As an exception to the exclusionary rule, a confession obtained in violation of Miranda may be used to impeach the credibility of the defendant’s testimony if he takes the stand at trial.
Public Safety Exception
If police interrogation is reasonably prompted by concern for public safety, responses to the questions may be used in court, even though a suspect is in custody and Miranda warnings are not given
Exclusionary Rule
a remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or coerced confession can (among other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent prosecution
Exclusionary Rule: Grand Jury Proceedings
Exclusionary rule does not apply to grand jury proceedings
Grand jury witness may e compelled to testify based on illegally seized evidence
Exclusionary Rule: Civil Proceedings
Not an available remedy in civil proceedings
Exclusionary Rule: Parole Revocation Hearings
Not an available remedy in parole revocation proceedings
Exclusionary Rule: Impeachment
Exclusion does not apply to the use of excluded evidence for impeachment purposes/
ALL illegally seized evidence may be admitted to impeach the credibility of the defendant’s trial testimony
ONLY defendant’s trial testimony may be impeached– not the testimony of the other defense witnesses.
Exclusionary Rule: Violations of the Knock and Announce Rule
Exclusion is not an available remedy for violations of the knock and announce rule in the execution of search warrants
Fruit of the Poisonous Tree Doctrine
Will not only exclude illegally seized evidence, but also exclude all evidence obtained or derived from police illegality.
Does not apply to Miranda violations, unless police act in bad faith in obtaining such information
Fruit of the Poisonous Tree Doctrine: 3 Exceptions to Exclusion
Three ways that the government can break the chain between original, unlawful police action and some supposedly derived piece of evidence:
(1) independent source
(2) inevitable discovery
(3) intervening acts of freewill
Independent Source
Government can show that it had an independent source for that evidence, independent of original police illegality
Inevitable Discovery
Police would have inevitably discovered this evidence anyway
Intervening Acts of Free Will
on the part of the defendant
Fruit of the Poisonous Tree Doctrine: Live Witness Testimony
Difficult to have live witness testimony excluded as the fruit of illegal police conduct
Fruit of the Poisonous Tree Doctrine: In-Court Identification
May not exclude witness’s in-court identification on the grounds that it is the fruit of an unlawful detention
Fruit of the Poisonous Tree Doctrine: Good Faith Exception
Officer’s good faith reliance on an invalid arrest or search warrant overcomes defects with the probable cause or particularity requirements– subject to 4 exceptions
Fruit of the Poisonous Tree Doctrine: Good Faith Exception
4 EXCEPTIONS
(1) Affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied upon it
(2) Affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it
(3) Police officer or prosecutor lied to, or misled the magistrate when seeking a warrant
(4) if the magistrate is biased and, and therefore has wholly abandoned his or her neutrality
Harmless Error Test
Conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial.
Conviction will be upheld if conviction would have resulted despite the improper evidence
Government bears the burden of showing beyond a reasonable doubt that admission was harmless
Trial
Prosecutor’s Pre-Trial Duty to Disclose
Prosecutor has duty to disclose exculpatory information.
Prosecutor’s failure to disclose evidence, whether willful or inadvertent, violates the Due Process Clause and may be grounds for reversal of a conviction if:
(1) the evidence is favorable to the defendant and
(2) prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed
Right to Trial by Jury: Serious Offenses
Constitutional right to a jury trial attaches anytime the defendant is tried for an offense for which the maximum authorized sentence exceeds 6 months
If maximum authorized sentence is up to or including 6 months, there is no constitutional right to jury trial
Right to Trial by Jury: Number
Minimum number of jurors permissible is 6.
If 6 jurors, verdict must be unanimous
Right to Trial by Jury: Unanimity
There is no federally protected constitutional right to unanimous 12 juror verdict.
10-2 and 9-3 is fine
Right to Impartial Jury
Have right to have jury pool reflect a fair cross-section of the community, BUT you have no right to have the empaneled jury reflect a fair cross section of the community
Right to Impartial Jury: Impair or Prevent Performance
Will the juror’s views prevent or substantially impair the performance of her duties?
Right to Counsel
Applies to all critical stages of prosecution, including trial
Waiver of Counsel/Right to Defend Oneself
Defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent, and he is competent to proceed pro se.
A defendant can be mentally competent to stand trial but incompetent to represent himself, as determined by the trial judge’s discretion
Ineffective Assistance of Counsel
There must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different
Such a claim can only be made out by specifying particular errors of trial counsel. More than vague allegations of inexperience or bad trial tactics.
Right to Confront Witnesses
Absence of face-to-face confrontation between defendant and accuser does not violate 6th Amendment when preventing such confrontation serves an important public purpose (i.2. insulating children from the trauma of testifying in sex abuse case) and the reliability of the witness is otherwise assured
Defendant who is disruptive may be removed from the courtroom, thereby relinquishing right of confrontation
Co-Defendant Confession
A confession implicating a co-defendant is prohibited and inadmissible at their trial.
Under Confrontation Clause, prior testimonial evidence may not be admitted, unless
(1) declarant unavailable
(2) defendant had an opportunity to cross-examine the declarant at the time the statement was made
Burden of Proof
Must prove every element beyond a reasonable doubt
Burden of Proof: Affirmative Defenses
i.e. insanity, self-defense
shift the burden of proof to the defendant
Prior Act Evidence
Prior act evidence is generally admissible for various reasons if it is probative and relevant
Ex: prior injury to show repeated/serious injuries by non-accidental needs to infer not an accident
Death Penalty for Felony Murder
Death penalty may not be imposed for felony murder where defendant, as an accomplice, did not take or attempt or intent to take life.
Death penalty may be imposed on a felony murderer where he participated in a major way in a felony that resulted in a murder and he acted with reckless indifference to the value of human life
When Jeopardy Attaches: Jury Trial
When jury is sworn
When Jeopardy Attaches: Bench Trial
When the first witness is sworn
When Jeopardy Attaches: Civil Proceeddings
Jeopardy does not generally attache when proceedings are civil
When Jeopardy Attaches: Exceptions Permitting Retrial
(1) jury is unable to agree upon a verdict
(2) mistrials for manifest necessity
(3) retrial after a successful appeal is NOT double jeopardy. Upon retrial after a successful appeal, Defendant cannot be retried for more serious offense than he was convicted of at the first trial
Ex: if defendant is convicted of manslaughter and then successfully appeals to new trial, most serious offense Defendant can be convicted of is manslaughter
(4) Breach of an agreed upon plea bargain by defendant. Plea and sentence can be withdrawn and original charges reinstated
Blockburger Test
Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not
Lesser included offenses
Being put in jeopardy for a greater offense bars retrial for any lesser included offense
Lesser included offenses: Exception
If defendant is tried and convicted on a charge of battery and the victim of the battery later dies due to injuries, the person can also then be prosecuted for murder
Double Jeopardy: Dual Sovereignty
Double jeopardy bars retrial for the same offense by the same sovereign
Privilege Against Self-Incrimination
Fifth Amendment privilege.
Can be asserted by anyone asked a question under oath in any type of case, wherein the response might tend to incriminate her.
Must assert privilege the first time the question is asked or it is waived for all subsequent criminal prosecutions
Privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution
Scope of Fifth Amendment Protection
Protects citizen from compelled testimony.
Does not protect citizens from having the government use physical evidence in ways to incriminate them
Non-Testimonial Evidence: Examples
Blood sample
Handwriting sample
Voice sample
Hair sample
DNA swab on arrest
Constitutionally valid to take a DNA cheek swab after an arrest for a serious crime
Seizure of incriminating documents
Fifth Amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person.
Privilege protects against being compelled to communicate information, not against disclosure of communication made in past.
Fifth Amendment and Prosecutorial Conduct
Unconstitutional for prosecutor to make a negative comment on defendant’s failure to testify or on a defendant choosing to remain silent after being given the Miranda warnings
Fifth Amendment and Prosecutorial Conduct: Exception
Prosecutor CAN comment on the defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain her side of the story.
Where prosecutor impermissibly comments on defendant’s silence, harmless error test applies
Silence Before Miranda
If suspect chooses to remain silent before police read him Miranda rights, that silence can be used against him in court
Elimination of Fifth Amendment Privilege
(1) under grant of immunity
(2) no possibility of incrimination (i.e. statute of limitations has run on underlying crime)
(3) waiver: criminal defendant who takes the witness stand waives the Fifth Amendment privilege as to all legitimate subjects of cross-examination
Grand Juries
Proceedings are secret.
Defendant has no right to appear and no right to send in witnesses
Grand Juries: Right to Counsel
Witness subpoenaed to testify before grand jury has no right to have an attorney present
Grand Juries: Miranda Warnings
Witness subpoenaed to testify before grand jury has no right to receive Miranda warnings
Grand Juries: Evidence
A grand jury may base its indictment on evidence that would not be admissible at trial
Habeas Corpus
After Defendant has exhausted her appeals, she may generally still attack her conviction(s) collaterally by beginning a new and separate civil proceeding, known as an application for writ of habeas corpus.
Focuses on the lawfulness of the Defendant’s detention
Search and Seizure Essay Analysis (5 Questions)
(1) is there governmental conduct?
(2) is there a reasonable expectation of privacy (standing)
(3) valid warrant (probable cause, particularity)
(4) officers good faith defense
(5) exceptions to the warrant requriement
Confessions and Miranda Essay Analysis (4 Questions)
(1) custody
(2) interrogation
(3) waiver (valid)
(4) invocation of rights (timely, unambiguous)
