Criminal Procedure

Question 1

Govt. Action – 4th Amend.

Answer 1

Grants a person protection from unlawful government searches and seizures.

−Acts by private individuals are NOT protected.

Question 2

Probable Cause

Answer 2

(1) trustworthy facts or knowledge,
(2) sufficient to warrant a reasonable person to believe,
(3) that the person committed a crime.

− Officer DOES NOT need firsthand knowledge (it may be based on informant’s information).

− An arrest in/at someone’s home requires a warrant (unless exigent circumstances).

Question 3

Stop & Inquire

Answer 3

Police must have:
(1) a reasonable articulable suspicion,
(2) that criminal activity is afoot.

− Allows a brief detention for questioning.

Question 4

Stop & Frisk

Answer 4

Police must have:
(1) a reasonable articulable suspicion,
(2) that criminal activity is afoot, and
(3) that the person has a weapon.

Question 5

Plain Feel Doctrine

Answer 5

→during the frisk, police may only seize items reasonably believed to be contraband or a weapon.

Question 6

Reasonable Suspicion

Answer 6

1) quantum of knowledge
2) sufficient to induce an ordinarily prudent and cautious person to believe
3) that criminal activity is at hand.

Question 7

Warrant Requirement

Answer 7

– a warrant is required for all searches and seizures unless an exception applies.

A valid search warrant requires:
1) Probable cause – reliable info that evidence of illegality will be found;
2) It must state with particularity the place and items to be searched/seized; AND
3) Be issued by a neutral and detached magistrate.

Question 8

Exigent Circumstances

Answer 8

– allows a warrantless search if:
a) evidence is evanescent (it will dissipate or disappear);
b) it’s necessary to prevent the imminent destruction of evidence;
c) the police are in hot pursuit of a felon and evidence is in plain view; OR
d) the emergency aid exception applies.

Question 9

Miranda Rights

Answer 9

– attach when a suspect is in a custodial interrogation.

Question 10

Custodial Interrogation

Answer 10

− Custody = the person reasonably believes they are not free to leave.

− Interrogation = police knew (or should have known) they were likely to elicit an incriminating response.

Question 11

Statements / Acts Protected

Answer 11

– only protects statements and acts that are communicative or testimonial in nature.

− Crying is NOT a testimonial communication.

− Miranda rights DO NOT apply to spontaneous statements.

Question 12

Public Safety Exception

Answer 12

– a limited interrogation without Miranda warnings IS ALLOWED when police ask questions reasonably prompted by a public safety concern or safety of the officer (i.e. to secure a weapon).

Question 13

Invoking Miranda Rights

Answer 13

– it must be clear and unambiguous.
− Once invoked, police must stop ANY questioning. Additionally, D’s silence CANNOT be commented on at trial.

Question 14

Police may reinitiate questioning if:

Answer 14

1) Suspect is re-advised of his Miranda rights;
2) Has provided a knowing and intelligent waiver; AND
3) Either
(a) counsel is present;
(b) suspect initiates the communication; or
(c) 14-days have passed since the suspect was released from custody.

Question 15

Waiver of Rights

Answer 15

– a valid waiver must be made:
1) knowingly,
2) intelligently, AND
3) voluntarily.

− D must understand the nature of the right being waived and the consequence for waiving it.

Question 16

Right to Counsel (6th Amend.)

Answer 16

– the accused has the right to counsel in ALL criminal prosecutions.

− Attaches→once formal adversarial judicial proceedings are commenced (formal charge, preliminary hearing, indictment, arraignment).

− Once rights attach, a suspect CANNOT be questioned without a lawyer, and anything said is inadmissible (unless a valid waiver occurs).

Question 17

Right to Counsel (5th Amend.)

Answer 17

− Attaches when a suspect is in a custodial interrogation (Miranda rights).

− Suspect has the right to consult with an attorney and have one present during questioning.

Question 18

Effective Assistance of Counsel (6th Amend.)

Answer 18

– D has the right to effective assistance of counsel.

− Includes the effective aid in preparation and trial of a criminal case.

Question 19

Ineffective Assistance of Counsel

Answer 19

– D must show:
1) Counsel’s performance was deficient; AND
2) But for the deficiency, the result would be different.

*If shown, the verdict MUST be reversed, and D is entitled to a new trial.

Question 20

Line-Ups

Answer 20

Due Process Clause (14th Amend.)→violated when a line-up is (1) unnecessarily suggestive, (2) resulting in a substantial likelihood of misidentification.

If violated→identification is inadmissible at trial. Absent improper police influence, an out-of-court identification is ADMISSIBLE.

Question 21

Independent Source Rule regarding lineups

Answer 21

→an in-court identification is admissible at trial (even if a line-up is tainted) when it’s:
1) based on a witness’s previous knowledge;
2) trustworthy; AND
3) based on a previous transaction (i.e. the crime).

Question 22

Limitations on Miranda Violations

Answer 22

▪ Limitation #1→Not required to suppress the physical evidence found because of D’s statements (as long as statement was voluntary).

▪ Limitation #2→Subsequent statements made after Miranda warnings are admissible UNLESS a previous statement was obtained through the use of inherently coercive police tactics offensive to Due Process.

▪ Limitation #3→Statements in violation of Miranda may be used to impeach D on cross- examination.

Question 23

Right to a Jury Trial – 6th Amend.

Answer 23

guarantees a criminal defendant the right to a jury trial for offenses where imprisonment is greater than 6 months.

− Minimum of 6 jurors is required, and a verdict MUST be unanimous.

− Any fact (other than a prior conviction) that increases the maximum penalty for a crime MUST be submitted to a jury and proven beyond a reasonable doubt.

Question 24

Competence to Stand Trial

Answer 24

D is competent to stand trial if he has:
1) a sufficient present ability to consult with his lawyer (able to assist in preparing a defense); AND
2) a rational and factual understanding of proceedings.

*D cannot be tried if deemed incompetent (but competence can be reassessed at a later date).

Question 25

Burden of Proof

Answer 25

→ Prosecution MUST prove every element of a crime beyond a reasonable doubt.

− Burden of proof CANNOT be shifted to D.

− Making D prove affirmative defenses is allowed.

Question 26

Presumptions for Jury Instructions

Answer 26

2 types:
− Rebuttable Presumption (one that may be disputed or overcome by additional evidence)→ violates the Due Process Clause if it shifts the burden of proof to D.

− Irrebuttable Presumption (one that cannot be disputed or overcome)→is a per se violation of the Due Process clause.

Question 27

Sufficiency of Evidence

Answer 27

A court MUST enter a Judgment of Acquittal if the evidence is insufficient to sustain a conviction (when a reasonable jury would not find that each element was proven beyond a reasonable doubt).

− D may move for a Judgment of Acquittal either: (a) at the close of its case-in-chief; OR (b) after the close of all evidence.

Question 28

Harmless Error Rule

Answer 28

– even if evidence is improperly admitted at trial, a guilty verdict will stand if the Prosecution can prove that the error was harmless (that D would have been convicted anyway).

Question 29

Plea Bargains

Answer 29

A D may enter a plea bargain, but doing so waives his 6th Amendment right to a jury trial.

Question 30

Requirements for a valid plea bargain:

Answer 30

1) Judge must determine plea is voluntarily and intelligently made; and
2) Judge must ensure that D understands:
a) Nature of the charge and its critical elements;
b) Maximum authorized penalty and any mandatory sentence;
c) That D has a right to plead not guilty; and
d) That D is waiving his right to a jury trial.

Question 31

Appellate courts will not disturb valid pleas unless:

Answer 31

a) Plea was made involuntarily (includes misunderstanding);
b) The court that took the plea lacked jurisdiction;
c) D had ineffective assistance of counsel; or
d) The prosecutor failed to honor the plea.

Question 32

Confrontation

Answer 32

D has a right to have adverse witnesses testify in-person and subject to cross-examination
Not required if:
1) Exclusion is necessary for public policy; and
2) Reliability of the testimony is otherwise assured.

(D can be removed from court for disruptive behavior)

Question 33

Co-defendant confessions

Answer 33

a co-D’s confession implicating D is inadmissible against D at a joint jury trial (OK at bench trial).

Exceptions- confession of a co-D is admissible if either:
a) Confessing co-D testifies subject to cross-examination;
b) D’s have separate trials;
c) Confession is redacted so that all portions referring to the co-D are eliminated; or
d) Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively.

Question 34

Right to a Speedy Trial

Answer 34

The 6th Amendment guarantees D the right to a speedy trial.

Protects D from unreasonable delay between the time charges are filed and the beginning of trial.

Right attaches once D has been arrested or charged.

Question 35

Right to Speedy Trial Violations

Answer 35

Determined by the totality of the circumstances.

Courts look at the following factors:
1) Length of delay;
2) Reason for delay (did D contribute to the delay?);
3) Whether D asserted his right to a speedy trial; and
4) Whether the delay has prejudiced D.

Remedy for violation = dismissal of case with prejudice.

Question 36

Requirements for death penalty

Answer 36

1) Statute allowing death penalty must not be unconstitutionally vague;
2) Jury must be allowed to consider mitigating circumstances; and
3) There must be at least one “aggravating circumstance” (prior convictions) supporting the sentence.

Question 37

5th vs 6th Amendment Right to Counsel

Answer 37

5th Amendment right to counsel:
Not Automatic- accused must invoke the right by unambiguously requesting presence of counsel (applies to any custodial interrogation)
Not offense-specific- once invoked, police must stop questioning on all subjects.

6th Amendment right to counsel:
Automatic- attached once charges have been filed and at all subsequent stages
Offense-specific- Police can question D about any other crimes.

Question 38

Exceptions to the Search Warrant Requirement

Answer 38

1) Search incident to arrest;
2) Plain view search;
3) Automobile Search;
4) Valid consent to search;
5) Exigent circumstances; and
6) Stop & frisk.

Question 39

Reasonable Expectation of Privacy

Answer 39

4th Amendment only applies if a person has a reasonable expectation of privacy (REOP) regarding the thing or place searched and/or the items seized.
-Standing to challenge a government search requires a REOP.
-REOP is determined by the totality of the circumstances.

No REOP for inherently public things (handwriting, voice, location, odors, public records, things viewable form public space, garbage placed outside).

Question 40

Automatic Standing- REOP always exists if D either:

Answer 40

a) Owns, has a right to possess, or lives on the premises to be searched; or
b) Is an overnight guest of the premises to be searched.

Question 41

Requirements for a valid search warrant

Answer 41

1) Based on probable cause
-usually a police affidavit demonstrating probable cause that the search or seizure will produce evidence.
-Affidavits- must contain facts showing probable cause
-May include information from anonymous sources
-If based on false information, warrant is invalid.

2) Precise on its face- warrant must describe, with reasonable precision, the place to be searched and/or items to be seized.

3) Issued by a neutral and detached magistrate.

Question 42

Good Faith Exception

Answer 42

Exclusionary rule does not apply if police act in good faith on an invalid search warrant.

-Exceptions to good-faith reliance- police cannot rely on a defective warrant obtained in good faith if:
a) Affidavit completely lacks probable cause (no reasonable police officer would have relied on it);
b) Warrant is defective on its face;
c) Police or government official lied or misled magistrate; or
d) Magistrate has “wholly abandoned her judicial role”

Question 43

Search Incident to Lawful Arrest

Answer 43

Police may search a lawfully arrested person and his immediate surrounding area without a warrant.
Requirements:
1) Arrest must be lawful;
2) Search must be contemporaneous with the arrest; and
3) Search must be limited to the area within the suspect’s reach or movement (where he could obtain weapons or destroy evidence).

Question 44

SILA Protective Sweeps

Answer 44

Police may sweep an area for officer safety or with reasonable belief that accomplices may be present.

Question 45

SILA Inventory Search

Answer 45

Police may search arrestee’s belongings or seized property when jailing an arrested suspect.

Question 46

SILA Automobiles

Answer 46

After arresting occupant, police may search the vehicle’s interior, including glove box, if at time of the search:
a) Arrestee is unsecured and may access the vehicle interior, or
b) They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle.

-Police cannot search trunk without probable cause or consent

-Breathalyzer- a warrantless breathalyzer test is valid following a lawful arrest based on probable cause of drunk driving.

May not search digital information on a phone seized during an arrest without a warrant.

Question 47

Plain View Searches

Answer 47

Police may seize evidence without a warrant if:
(1) it is observed in plain view (with any of the five senses),
(2) from a place the officer is lawfully permitted to be (e.g. a warrant exception applies), AND
(3) probable cause exists to believe that the items are evidence of a crime or contraband (it must be immediately apparent).

Question 48

Consent to Search

Answer 48

Requirements for valid consent:
1) Voluntarily and intelligently made
-Police cannot falsely claim legal cause to search
-Police have no obligation to inform suspects that they have a right to refuse consent;
2) Person giving consent has authority to consent
-Authority to consent must be reasonably apparent.

Question 49

Scope of Consent

Answer 49

Can be limited by consenting party.
-Violation of scope renders the entire search non-consenting.

Question 50

Third-party Consent

Answer 50

allowed if there is authority to consent.
-Where multiple people have property rights, any single one can consent to the search of any area where they have authority to consent.
-A resident’s right to consent trumps a non-resident (tenant over landlord)
-Scope of consent is dictated by the person present with the highest authority to consent.
(No consent if two persons with equal right to possession disagree on consent).

Question 51

Public School Searches

Answer 51

To conduct a search, school officials must have reasonable grounds to believe the search is necessary (less burdensome than probable cause).
School search is reasonable if:
1) Search offers a moderate chance of finding evidence of wrongdoing;
2) Procedure for searching is reasonably related to the objectives of the search; and
3) Search is not excessively intrusive.

Drug tests- random urinalysis permitted for public school students participating in extracurricular activities.

Question 52

Warrant requirements for electronic surveillance:

Answer 52

1) Probable cause that a specific crime is being or has been committed;
2) Warrant must name suspects subject to surveillance;
3) Warrant must describe with particularity the subject of conversations that can be surveilled;
4) Surveillance must be limited to short periods of time; and
5) Surveillance must terminate when desired information is obtained and must be turned over to the court.

Question 53

Exclusionary Rule

Answer 53

Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial.

Question 54

Fruit of the Poisonous Tree Doctrine

Answer 54

Evidence derived or obtained from illegal government conduct is excludable against D.
-Arises when illegal police action leads to evidence.

Question 55

Exclusionary Rule Exceptions (“break the chain”)

Answer 55

illegally obtained evidence is admissible if government can “break the chain” between the illegal government conduct and the seized evidence;

Common ways to break the chain:
1) Independent source- government had an independent source for obtaining the evidence (independent from the original illegality;

2) Inevitable discovery- government would have discovered illegally derived evidence even without illegal conduct;

3) Attenuation- where evidence challenged is too remote and attenuated from unlawful search or seizure
-Includes intervening acts of free will by D (after initial illegality, D consciously leads police to the evidence).

Question 56

Limitations on the Exclusionary Rule

Answer 56

Does not apply to:
1) Grand Jury Proceedings, civil proceedings, parole hearings, or administrative cases;
2) Violations of the “knock and announce” rule; or
3) Evidence seized as a result of Miranda violations.

May be used to impeach D’s testimony.

Question 57

When Jeopardy Attaches

Answer 57

Jury trial- once jury is impanelled and sworn in.

Bench trial- once the first witness is sworn in.

Question 58

Double Jeopardy: Exceptions Permitting Retrial

Answer 58

Once Jeopardy has attached, retrial is allowed if either:
a) Hung jury;

b) Mistrial due to manifest necessity
(occurs when D’s original trial is aborted for some reason (D is too ill to continue));

c) Retrial after successful appeal by D
(D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict);

d) D breaches a plea bargain agreement;

e) Separate sovereigns
-D can be tried for the same crime in different states
-D can be tried for the same crime in federal and state court.

Question 59

Double Jeopardy

Answer 59

Prevents a D from being prosecuted twice for the “same offense”.

− Under Blockburger Test→two crimes are NOT the “same offense” if each crime requires proof of a fact which the other does not.

− A final judgment on a lesser offense bars prosecution of a greater offense on the same facts UNLESS the greater offense: (a) did not exist at the time of trial; OR (b) was not discovered despite due diligence.

Question 60

Good Faith Defense:

Answer 60

a) A reasonably relied upon but defective search warrant; or
b) A judicial opinion or statute that was later changed or declared invalid.