Criminal Procedure

Question 1

Government Conduct

Answer 1

Police Action?

If police directs a private citizen to act on their behalf, that citizen’s conduct is equivalent to gov conduct.

Question 2

Expectation of Privacy

Answer 2

(1) Did D actually expect privacy (subjective)

(2) Does SOCIETY consider there to be privacy (objective)

Surveillance or searches in open areas don’t violate 4th

Question 3

Terry Stop and Frisk

Answer 3

(1) REASONABLE suspicion
(2) Supported by ARTICULABLE facts
(3) of CRIMINAL activity

FRISK is pat down for WEAPON

Question 4

Police Checkpoints

Answer 4

(1) Cars stopped on NEUTRAL, ARTICULABE standard

(2) Serve purposes closely related to a particular problem related to cars (sobriety, border, etc.)

Question 5

Valid Warrant

Answer 5

(1) Must DESCRIBE the place and objects of the search with reasonable particularity

(2) May not be based on willfully false statements

Question 6

Warrant Exceptions

Answer 6

SPACE PIE II

SILA, Protective Sweep, Automobile, Consent, Exigent Circumstances, Plain View, Inventory Booking, Emergency, Independent Source, Inevitable Discovery

Question 7

Consent

Answer 7

Knowing, valid, and intelligent

Has to have authority to say yes

Question 8

Automobile

Answer 8

Police can search car if there is probable cause, but only limited to search areas that the item can be in

Question 9

Plain View

Answer 9

In PLAIN VIEW in which individual is arrested

Question 10

Lawful Arrest

Answer 10

(1) Warrant obtained by probable cause, or

(2) Officer sees D committing felony or has probable cause that D is or has committed or

(3) Officer sees D committing misdemeanor

Question 11

Incident to Lawful Arrest

Answer 11

(1) Takes place IMMEDIATELY after arrest
(2) In CONNECTION with it
(3) WINGSPAN
(4) but NOT if accused is secured

Question 12

Protective Sweep

Answer 12

Facts indicate PROBABLE CAUSE that accomplice is nearby

Question 13

Inventory Search

Answer 13

Booking process - established police procedure

Question 14

Exigent Circumstances

Answer 14

Threat evidence will be destroyed

Law enforcement cant create the exigent circumstance tho

Question 15

Emergency Aid

Answer 15

Police sees someone injured or threated with injury

Question 16

Inevitable Discovery

Answer 16

Police WOULD HAVE discovered it even if they didn’t act illegally

Question 17

Independent Source

Answer 17

Admissible IF Prosecutor can show it was obtained independent of the original illegal conduct

Question 18

4th Amendment Violations Remedies

Answer 18

(1) Exclusion of Evidence - Fruit of the Poisonous Tree

(2) Good Faith

(3) Impeachment - even if illegally obtained, can use to impeach

Question 19

Confessions

Answer 19

14th: Voluntary and not coerced

6th: Right to Counsel at ALL stages, attaches post charge

5th: Privilege against SELF INCRIMINATION and right to Counsel - MUST be mirandized before custodial interrogation

Question 20

Custody

Answer 20

Accused not free to leave or reasonably believes not free to leave (traffic stop is not custody)

Question 21

Interrogation

Answer 21

Questions, statement, or conduct designed to elicit incriminating information

Question 22

Re-Initiation of Questioning

Answer 22

Right to remain silent = initiated ONLY after reasonable amount of time has passed ONLY on separate crime

Right to counsel - may NOT be re-initiated absent counsel, unless released into prison for 14 days and re-mirandized

Question 23

Confessions - Impeachment

Answer 23

Illegally obtained confessions and statements admissible to IMPEACH accused as a prior inconsistent statement, but not admissible for their truth

Question 24

Pre-Trial Identification

Answer 24

6th: Right to counsel attaches post charge

14th:
(1) CANNOT BE unreasonable suggestive (“look closely, are you sure its not him”)

(2) cannot be a substantial likelihood of misidentification (D the ONLY one dressed a certain way)

Question 25

Co-Defendant Confessions (6th Amendment)

Answer 25

Admissible ONLY IF

(1) statements concerning accused are redacted OR

(2) co-defendant is crossed

Question 26

Informants (5th and 6th)

Answer 26

5th
- Miranda does not need to be given when interrogation is by an informant who D DOES NOT KNOW is working for police

6th:
Violated when
(1) the government informant put in D’s cell
(2) AFTER D has been charged; and
(3) deliberately elicits statements regarding the charged crime.

“blurting” is ok

Question 27

Right to Speedy Trial

Answer 27

To determine if denied, consider
(1) LENGTH of delay,
(2) REASONS for the delay,
(3) whether defendant ASSERTED his right to a speedy trial (if D requested the delay, D can’t claim denial of speedy trial),
(4) PREJUDICE to the defendant.

Question 28

Bail

Answer 28

Accused is entitled to bail, in some APPROPRIATE amount, in non-capital cases, and an amount that is designed to make it UNLIKELY that D will FLEE.

Question 29

Pleas

Answer 29

VOLUNTARY & INTELLIGENTLY MADE
Judge MUST inform D of:
(1) the NATURE of the charge,
(2) the critical ELEMENTS of the offense,
(3) the MAXMIN possible penalty
(4) the right to plead not guilty and that by pleading guilty D WAIVES right to jury trial.
(5) ON RECORD

Question 30

Ineffective Assistance of Counsel

Answer 30

(1) the attorney’s exercise of judgment and representation fell SIGNIFICANTLY below the reasonable standard of care and

(2) causation

failure to seek bail probably ineffective

Question 31

Right to Testify

Answer 31

Right to testify based on 5th Amendment due process right to a fair trial. CANNOT be prevented by lawyer

Question 32

Right to Represent Self

Answer 32

On request, court determines whether request is
(1) knowing & intelligent and
(2) competent to represent self

Court should still appoint standby counsel

Question 33

Double Jeopardy

Answer 33

(1) Right to be from more than one trial for the same offense

(2) Attaches at the empaneling and sewaring in of jury

(3) two crimes are NOT the same if EACH crime has an element the other does not

Question 34

Double Jeopardy Exceptions

Answer 34

(1) a hung jury,
(2) a mistrial,
(3) a retrial after defendant successfully appeals, or
(4) breach of a plea bargain agreement