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MBE TOPICS > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

Requirements for a valid arrest

A

always need probable cause

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2
Q

two types of seizure of the person:

A

an arrest and a Terry stop

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3
Q

No warrant needed for an arrest UNLESS

A

arresting in a private home, then you need a warrant

EXCEPTIONS to needing a warrant for a private home arrest:
- exigency
- consent to enter the premises

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4
Q

what is a search?

A

conducted by a government official or under their direction, of a place where one has a reasonable expectation of privacy

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5
Q

where do you have a reasonable expectation of privacy?

A

HHOL
H- home
H- hotel
O- office
L- luggage

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6
Q

no reasonable expectation of privacy in:

A

ANYTHING VISIBLE TO THIRD PARTIES!!!!!!!!
- open fields
- garbage on the curb
- aerial observations
- odors

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7
Q

Terry Stop requirements

A

Stop requires reasonable suspicion based on articulable facts that criminal activity is afoot

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8
Q

Terry stop & FRISK requirements

A

The frisk part requires ADDITIONAL suspicion that the person is armed and dangerous!!

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9
Q

If a cop pulls over someone for a traffic violation, where can the cop search in the car?

A

anything in plain view

NOTE: If the cop gets probable cause during the stop, they may search the entire car

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10
Q

If a cop has probable cause before pulling someone over, where can the cop search in the car?

A

ANYWHERE– even closed compartments

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11
Q

requirements of a valid warrant under the 4th amendment

A

must be
- issued based on probable cause,
- by a neutral and detached magistrate, and
- must describe the place to be searched and the item to be seized with particularity

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12
Q

who can execute a warrant?

A

only police and must be executed without unreasonable delay

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13
Q

EXCEPTIONS to the warrant requirement:

A

CAPPESS
C- Consent to search the property by the owner
A- Automobile exception
P- Protective Sweep (cops can only fan out if reasonable belief that more criminals are present, you can only look in areas where a person would fit)
P- Plain View Doctrine (anything in plain view may be seized)
E- Exigent Circumstances (suspect is fleeing or evidence is being destroyed)
S- Stop and Frisk (may stop if reasonable suspicion based on articulable facts that criminal activity is afoot; and may frisk if additional suspicion that the person has weapons)
S- Search Incident to Lawful Arrest (may search the entire person and their wingspan)

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14
Q

EXCEPTION if cop conducts an evidentiary search based on an invalid warrant

A

Good Faith Exception

If the cop reasonably and in good faith believed the warrant was valid, the search is ok

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15
Q

Public School Searches

A

do not need a warrant or probable cause to search students or their possessions

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16
Q

A Defendant’s admission will only be admitted under the 14th amendment if it was

A

VOLUNTARY

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17
Q

A defendant has a 6A right to counsel once

A

they have been formally charged

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18
Q

6A right to counsel is ____ specific. What does that mean?

A

offense specific!

The police can ask about any unrelated, uncharged crimes, because the right to counsel only applies to the specific crime you are charged with.

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19
Q

Miranda Warnings are required when?

A

During a custodial interrogation

NOTE: Only necessary when the detainee knows that they are being interrogated by a government agent, if they do not know an informant questioning then is working for the police, no need to give Miranda because the RP would think they could leave that situation freely.

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20
Q

What is a custodial interrogation?

A

Custodial: where the reasonable person would not believe they are free to leave
Interrogation: words/conduct by police that are likely to elicit an incriminating response

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21
Q

After receiving Miranda warnings, a detainee may:

A
  • do noting
  • waive Miranda rights
  • Assert right to remain silent
  • Assert right to counsel
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22
Q

If a detainee remains silent after being given Miranda, has the detainee asserted any rights under Miranda?

A

No. The police can keep questioning.

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23
Q

If a detainee waives Miranda it must be

A

KNOWING AND VOLUNTARY

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24
Q

If a detainee asserts the right to remain silent it must be: ____.

The police must ____.

A

explicit, unambiguous, and unequivocal

Police MUST STOP QUESTIONING BUT can re-initiate questioning if a significant amount of time has passed and the person was re-Mirandized & the Qs are limited to a crime that wasn’t the subject of the earlier questioning

25
Q

If a detainee wants to assert the right to counsel they must _____.

The police must ____.

A

UNAMBIGOUSLY INDICATE THEY ARE INDICATING THIS RIGHT.

The police MUST STOP ALL QUESTIONING UNTIL COUNSEL ARRIVES!
(Unless the detainee reinitiates questioning or is released from custodial interrogation back to their normal life and 14 days have passed since release)

26
Q

Statements obtained in violation of Miranda may be used to____

A

impeach the Defendants trial testimony but not as evidence of guilt.

27
Q

“Question first, warn later”

A

Police cannot get a confession without giving Miranda, and then give Miranda and get a subsequent confession if the nature of the questioning was intentional

28
Q

Non-testimonial fruits of an unwarned confession

A

If police purposely did not give Miranda, any non-testimonial evidence obtained will be suppressed.

If police fail to give Miranda but not on purpose, non-testimonial evidence will probably come in. (Remember: because the whole point is we want to punish intentional police misconduct)

29
Q

Public Safety Exception to Miranda

A

Police do not have to give Miranda Warnings when they are reasonably prompted by a concern for public safety
(aka- someone is on the loose with a bomb)

30
Q

6A right to counsel before trial

A

VERY LIMITED

Only applies where the Defendant is personally confronted by Witnesses

Post charge line up = YES right to counsel
Photo ID, handwriting exemplars, or fingerprints = NO right to counsel

31
Q

When can a defendant attack identification as denying due process?

A

If it is unnecessarily suggestive and there is a substantial likelihood of misidentification

32
Q

Exclusionary Rule

A

prohibits introducing evidence obtained in violation of the Defendant’s 4A, 5A, and 6A rights

33
Q

When doe the exclusionary rule apply?

A

when evidence or information is obtained AS A RESULT OF GOVERNMENT CONDUCT

(police officers, informants, and security guards deputized by police)

34
Q

Fruit of the Poisonous Tree Doctrine

A

Extension of the Exclusionary Rule that prohibits evidence obtained in violation of the 4A from being admitted

35
Q

Exceptions to Fruit of The Poisonous Tree Doctrine

A

The evidence is going to come in anyways even if 4A violation, if it was only unconstitutional because of one of the following:

1) State procedural limits on an arrest or search are violated

2) Police failed to knock and announce

3) Existence of an independent source

4) Attenuation (the connection between the unconstitutional police conduct and the evidence is remote)

5) Inevitable discovery (police would have discovered it anyway)

36
Q

Live witness testimony under the exclusionary rule

A

Will usually come in

37
Q

In court identification under the exclusionary rule

A

Will come in, even it was obtained as a result of an unlawful detention

38
Q

Out of court identification underthe exclusionary will

A

will only be excluded if the unnecessarily suggestive circumstances were arranged by the police

39
Q

The exclusionary rule does not apply to:

A

grand juries, civil proceedings, violation of state law or agency rules, and parole revocation proceedings

40
Q

Good Faith Reliance Exclusionary Rule

A

Evidence will not be excluded if the officer acted in good faith reliance on:
- judicial approval of a search warrant
- subsequently invalidated statute
- erroneous info in an arrest warrant
- SCOTUS ruling that is subsequently overturned
- reasonable but mistaken belief that D violated the law

41
Q

Harmless error test exclusionary rule

A

If illegal evidence is admitted, the conviction will be affirmed if, on appeal, it can be shown that D would have been convicted anyways

42
Q

Who bears the burden under the exclusionary rule

A

government bears the burden of establishing the admissibility of evidence under the exclusionary rule by a preponderance of the evidence

43
Q

Who must use grand juries?

A

the federal government

44
Q

violation of the 6A right to speedy trial is evaluated by:

A

a totality of the circumstances

45
Q

what does the 6A right to speedy trial attach

A

when the D has been arrested or charged (but the D does not need to know of the charges for the right to attach)

46
Q

Prosecution duty to disclose exculpatory evidence

A

Prosecution must disclose and if they do not, it is grounds for reversal, if D can prove:
- the evidence is favorable to D (because it impeaches or is exculpatory)
- the case would have turned out differently had the evidence been disclosed

47
Q

Right to trial by jury only applies to

A

serious offenses where imprisonment for more than 6 months is imposed

48
Q

max and minimum numbers of jurors required

A

max: 12
minimum: 6

49
Q

the 6A right to counsel includes the right to ___

A

EFFECTIVE COUNSEL

50
Q

The right to confront witnesses is granted under the

A

6A

51
Q

State and Defendant burdens of proof

A

State: must prove beyond a reasonable doubt
Defendant asserted affirmative defense: burden may be shifted to the D to prove that affirmative defense
Defendant asserts a defense that negates an element of the crime: Burden remains on the state to prove the elements of the crime

52
Q

double jeopardy attaches:

A

in a jury trial: when the jury is empaneled and sworn in
in a bench trial: when the first witness is sworn in

53
Q

Exception to double jeopardy

A

separate sovereign rule!! (aka, separate court)

54
Q

A defendant cant be retried for the same crime even if double jeopardy attached if:

A
  • there was a hung jury
  • deep reason of justice requires a new trial;
  • reversal is based on weight of evidence, not sufficiency (but cannot be tried for a greater offense)
55
Q

WHO can assert the 5A privilege against self incrimination

A

any natural person in a civil or criminal trial

56
Q

WHEN can you assert the 5A privilege against self incrimination

A

when your response may furnish a link in the chain of evidence needed to prosecute you

NOTE: in a civil trial, you must claim it in order to prevent waiver of it for a later criminal prosecution

57
Q

5A privilege against self incrimination applies to what kind of evidence?

A

TESTIMONIAL! Does not apply to real, tangible evidence.

58
Q

May an adverse party comment if a party asserts their 5A right against self incrimination?

A

Criminal Trial: cannot do this… if prosecution does, the D is entitled, upon timely motion, to have the judge instruct the jury that they cannot draw an adverse inference from the Ds failure to testify

Civil Trial: can comment… it is proper in a civil trial to draw an inference from one’s assertion of the 5A

59
Q

If a defendant is convicted and on appeal, the conviction is reversed, can the state try the defendant again?

A

the state cannot try the defendant for a greater offense than what he was convicted of in the 1st trial

MBE TOPICS (8 decks)

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