Criminal Procedure

Question 1

Exclusion:
-fruit of the poisonous tree: definition; exceptions (5 of them); But

Answer 1

-fruit of the poisonous tree: prohibits the introduction of evidence obtained in violation of the 4th, 5th, or 6th Amendments.
-exceptions: (i) statements obtained in violation of Miranda;
(ii) independent source; (iii) inevitable discovery; (iv) intervening act of free will by D; (v) violation of knock and announce
*BUT: voluntary confessions in violation of Miranda are admissible to impeach and evidence from illegal search can impeach D’s trial testimony

Question 2

good faith defense

Answer 2

reliance on (i) judicial opinion; (ii) statute or ordinance; (iii) defective search warrant

Question 3

good faith negated

Answer 3

-if: (i) the affidavit is so lacking in probable cause that no reasonable officer would rely on it; (ii) warrant defective/invalid on its face; (iii) affiant lied or misled the judge; (iv) the judge wholly abandoned his judicial role

Question 4

harmless error

Answer 4

-admission of illegal evidence will overturn conviction unless the government can show beyond a reasonable doubt that the error was harmless

Question 5

Fourth Amendment: Search and Seizure:
-arrest

Answer 5

PC + warrant if D is in his home;
-stop in car requires reasonable suspicion, including checkpoint and pretextual stops

Question 6

valid warrant

Answer 6

-particularity of place searched and things seized AND issued by a neutral and detached judicial officer.

Question 7

challenge if

Answer 7

affiant intentionally and recklessly included a material false statement. *BUT good faith still applies

Question 8

search and seizure analysis: (1); (2); (3)

Answer 8

(1) does the person have a 4th Amendment right? (government conduct and a reasonable expectation of privacy: requires standing, eg. ownership or living in premises search; overnight guest; but not items held out to the public)
(2) search warrant valid?
(3) is there an exception?

Question 9

search incident to lawful arrest

Answer 9

search contemporaneous in time and place;
-limited to the wingspan of the individual

Question 10

automobile search

Answer 10

-incident to arrest: interior compartment of car BUT not trunk
-probable cause: full search, including any containers

Question 11

plain view

Answer 11

officer legitimately on the premises

Question 12

consent

Answer 12

-voluntary and intelligent by someone who has apparent equal right of use and access
-valid search even if the individual did not have authority if the police reasonably believed that they did

Question 13

stop & frisk

Answer 13

-stop if reasonable suspicion of criminal act supported by articulable facts;
-frisk if reasonable suspicion that suspect is armed and dangerous BUT limited to finding weapons

Question 14

hot pursuit / Evanescent Evidence

Answer 14

may follow the suspect into the dwelling if in pursuit (should be within 15 minutes of suspect);
-may seize evidence that is likely to disappear

Question 15

wiretapping

Answer 15

-if probable cause; named persons; description with particularity re: conversations; limited time; terminated when info is obtained; return to the court to show what was intercepted

Question 16

Confessions:
-5th Amendment:

Answer 16

-Miranda is needed for CUSTODIAL interrogations (not free to leave)
-interrogations: reasonably likely to elicit a response
-an unambiguous assertion of right to attorney prohibits questioning unless the accused initiates resumption
*NOT offense specific
*voluntary confessions made in violation of Miranda are admissible to impeach

Question 17

waiver

Answer 17

-must be knowing, voluntary and intelligent

Question 18

6th Amendment

Answer 18

-right to counsel: post-charge at critical stages of the proceeding
*offense specific

Question 19

14th Amendment

Answer 19

requires confession be VOLUNTARY

Question 20

admissibility of co-D’s confession

Answer 20

-redact all portions referring to the other D;
-the confessing D takes the stand and is subject to cross;
-the confession of the non-testifying D is being used to rebut the D’s claim that his confession was obtained by coercion

Question 21

Identifications: Grounds for Attack
-counsel

Answer 21

-6th Amendment for post charge line ups and show ups
*no right to counsel at photo ID

Question 22

denial of due process

Answer 22

if unnecessarily suggestive or substantially likely to present mistake

Question 23

remedy

Answer 23

-exclude in-court ID
*Negated if P can show adequate independent source of identification, including ample opportunity to observe person at the time of the crime

Question 24

Double Jeopardy: definition

Answer 24

-attaches when the jury is sworn or, if no jury, first witness is sworn.
*does not apply to separate sovereigns

Question 25

exceptions to Double Jeopardy

Answer 25

exceptions: hung jury; mistrial from manifest necessity; retrial after successful appeal unless insufficient evidence to support verdict; breach of agreed plea; termination at behest of D on grounds not constituting acquittal

Question 26

Fifth Amendment Privilege Against Self-Incrimination:
-definition; limitations

Answer 26

-any natural person can assert, but only applies to testimonial disclosure
-limitations: doesn’t apply to compulsory disclosure of docs; must be asserted at the first instance of questioning on that subject, including civil trials

Question 27

Fifth Amendment Privilege Against Self-Incrimination:
-effect; eliminated

Answer 27

-effect: P can’t make negative comment on silence, unless D asserts that D wasn’t able to tell his side of the story
-eliminated: if: grant of immunity; no possibility of incrimination (statute of limitations); or waiver

Question 28

Misc:
-pre-trial disclosure

Answer 28

-P: disclose material, exculpatory evidence
-D: disclose use of alibi or insanity

Question 29

jury trial

Answer 29

right if maximum authorized sentence is longer than 6 months

Question 30

jury

Answer 30

-if 6: must be unanimous; 9-3 ok
-jury pool must reflect fair cross section of the community
-in a death penalty case: may exclude a juror with absolute opposition to death penalty that may prevent or substantially impair performance

Question 31

death penalty

Answer 31

-present all relevant mitigating evidence; no automatic DP; only jury can determine aggravating factor imposing DP

Question 32

pleas

Answer 32

-Judge must address D personally re: the nature of the charge, the max possible penalty / mandatory minimum that D has a right to plead guilty but would waive his right to trial

Question 33

overturn plea

Answer 33

-if: plea is involuntary; lack of jurisdiction; ineffective assistance of counsel; P fails to keep agreed plea bargain