Criminal Procedure Flashcards
Government Conduct
Police Action?
If police directs a private citizen to act on their behalf, that citizen’s conduct is equivalent to gov conduct.
Expectation of Privacy
(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
Terry Stop and Frisk
(1) REASONABLE suspicion
(2) Supported by ARTICULABLE facts
(3) of CRIMINAL activity
FRISK is pat down for WEAPON
Police Checkpoints
(1) Cars stopped on NEUTRAL, ARTICULABE standard
(2) Serve purposes closely related to a particular problem related to cars (sobriety, border, etc.)
Valid Warrant
(1) Must DESCRIBE the place and objects of the search with reasonable particularity
(2) May not be based on willfully false statements
Warrant Exceptions
SPACE PIE II
SILA, Protective Sweep, Automobile, Consent, Exigent Circumstances, Plain View, Inventory Booking, Emergency, Independent Source, Inevitable Discovery
Consent
Knowing, valid, and intelligent
Has to have authority to say yes
Automobile
Police can search car if there is probable cause, but only limited to search areas that the item can be in
Plain View
In PLAIN VIEW in which individual is arrested
Lawful Arrest
(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
Incident to Lawful Arrest
(1) Takes place IMMEDIATELY after arrest
(2) In CONNECTION with it
(3) WINGSPAN
(4) but NOT if accused is secured
Protective Sweep
Facts indicate PROBABLE CAUSE that accomplice is nearby
Inventory Search
Booking process - established police procedure
Exigent Circumstances
Threat evidence will be destroyed
Law enforcement cant create the exigent circumstance tho
Emergency Aid
Police sees someone injured or threated with injury
Inevitable Discovery
Police WOULD HAVE discovered it even if they didn’t act illegally
Independent Source
Admissible IF Prosecutor can show it was obtained independent of the original illegal conduct
4th Amendment Violations Remedies
(1) Exclusion of Evidence - Fruit of the Poisonous Tree
(2) Good Faith
(3) Impeachment - even if illegally obtained, can use to impeach
Confessions
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
Custody
Accused not free to leave or reasonably believes not free to leave (traffic stop is not custody)
Interrogation
Questions, statement, or conduct designed to elicit incriminating information
Re-Initiation of Questioning
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
Confessions - Impeachment
Illegally obtained confessions and statements admissible to IMPEACH accused as a prior inconsistent statement, but not admissible for their truth
Pre-Trial Identification
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)
Co-Defendant Confessions (6th Amendment)
Admissible ONLY IF
(1) statements concerning accused are redacted OR
(2) co-defendant is crossed
Informants (5th and 6th)
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
Right to Speedy Trial
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.
Bail
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.
Pleas
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
Ineffective Assistance of Counsel
(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
Right to Testify
Right to testify based on 5th Amendment due process right to a fair trial. CANNOT be prevented by lawyer
Right to Represent Self
On request, court determines whether request is
(1) knowing & intelligent and
(2) competent to represent self
Court should still appoint standby counsel
Double Jeopardy
(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
Double Jeopardy Exceptions
(1) a hung jury,
(2) a mistrial,
(3) a retrial after defendant successfully appeals, or
(4) breach of a plea bargain agreement
