Criminal procedure

Question 1

General approach to crim pro questions

Think big picture

Answer 1

Look at the facts as a timeline!
* what was the 1st interaction with cops/defendant?
* WHY did the cops stop the car?
* WHY did they enter the house?

DONT concentrate on what they found! Always look as to WHY were they looking initially!

Question 2

Does it matter who conducts the search?

Who should be conducting the search?

Answer 2

Yes, b/c if a govt official (i.e. cop) OR someone under the direction of the govt (i.e. undercover cop, informant) conducts a search, could lead to a 4th Am. claim

Question 3

What is a search?

and what is not

Answer 3

When cop/govt official conducts an inspection in/of a place you expect to have privacy

Think: opening closed doors, drawers, closet - search

Compare: looking at your property but open fields property (like your uncovered backyard) - no search b/c there is no expectation of privacy

Question 4

When can they search?

Answer 4

When there is probable cause = reasonable person could conclude that crime-related things/items can be found at the location

Question 5

What is required for a valid warrant?

Can you conduct a search without one?

Answer 5

1. neutral and detached magistrate determining probable cause was issued timely
2. particularity: scope of the warrant details when/where/what is being searched

• probable cause can come from cops info or informant’s info IF reliable
• If cops rely on info that turns out not to be valid, search is still okay

Search will be okay IF cops were acting in good faith

Question 6

When will a cop exceed the warrant’s scope?

Answer 6

If the cops found what the searh detailed to look for (i.e. the brown briefcase) and they continue to conduct the search – exceeded
BUT remember, if they continue to walk around the house and find something in plain sight – fair game

Question 7

Are there exceptions to warrant searches?

Answer 7

Yes, but remeber the default is you need a warrant for the search to be valid. Nonetheless, there can be a warrantles search if the facts give you any of the following:

1. consent
2. hot pursuit
3. auto exception
4. exigent circumstances
5. search incident to a lawful arrest
6. protective sweep
7. stop and frisk

Question 8

Consent

Warrant exception

Answer 8

Either the owner of the property OR a 3rd party w/actual or apparent authority over the premise consented to the search

3rd party w/actual or apparent = joint control or shared use of the premises

Question 9

Stop and frisk

Warrant exception

Answer 9

Cops need REASONABLE suspicion that criminal activity is afoot (that there are weapons)

Question 10

Protective sweep

Warrant exception

Answer 10

Allowed if there is REASONABLE belief that other suspects are in the house.

Question 11

Search incident to a lawful arrest

Warrant exception

Answer 11

You get a freebie to look at within the person/area WINGSPAN

Question 12

Exigent circumstances

Warrant exception

Answer 12

If there is a reasonable belief that evidence may be lost or destroyed or that the D may flee - search allowed w/o warrant (“an emergency”)

Question 13

Auto-exception

Warrant exception

Answer 13

First, PO needs to lawfully stop you (i.e. a traffic stop)

Then, PO need probable cause that the car has contraband to conduct the search.

They cannot get into additional closed spaces w/o additional probable cause

Question 14

When are your Miranda rights needed?

Answer 14

When you are in a CUSTODIAL INTERROGATION = you are in custody AND you are being interrogated

+ look at the facts, both things have to be present!
+ if D asks for attorney, all questions must STOP

Question 15

When are you in custody?

Answer 15

When you are not free to leave (objective standard - reasonable person standard)

Question 16

When are you being interrogated?

Answer 16

Cops know or should know that the question(s) is resonably likely to elicit incriminating response

NOTE: if the D gives a voluntary statement (talks on their own) – Miranda does not apply

Question 17

Can you waive your Miranda rights?

Answer 17

The defendant must voluntarily (knowingly + aware of consequences) waive.
CANNOT be coerced, duress.
Look @age, education, experience

Question 18

What is double jeopardy?

Answer 18

Defendant cannot be tried twice for the same crime.
So D had to have trial #1

Note, pre-trial (arraignments, grand jury failing to indict, line-ups, etc.) does NOT count for double jeopardy

Question 19

When does trial #1 begin?

Jury and non-jury trials

Answer 19

Jury trial – when jury is impaneled and sworn

Non-jury trial - when 1st witness is sworn in

Question 20

When does trial #1 end?

Answer 20

When there is a final judgment/verdict on the merits

Question 21

Is there an exception to trying the same case twice?

Separate sovereign rule

Answer 21

Yes, the separate sovereign rule! The same case can be tried again IF it is tried in: (1) another STATE; (2) a different level court (i.e. went from state to federal court).

Question 22

Estoppel

D’s Double jeopardy Defense?

Answer 22

If you need the elements of trial #1 (where D was found not guilty) to convict in trial #2 – you are estopped from being tried!

Think of the felony murders! (if you are found not guilty for arson, you cannot be found guilty for the murder-arson)

Question 23

Right to jury trial rule

Answer 23

You have a right to an impartial jury where imprisonment of 6+ months is possible

Question 24

Right to counsel

generally

Answer 24

You have a right to counsel at all critical stages of proceedings (first appearance, appeal, etc)

Question 25

Right to counsel

Before indictment

Answer 25

You have a 5th Amendment right to counsel

Question 26

Right to counsel

after indictment

Answer 26

You have a 6th Am right to counsel