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Criminal Procedure Flashcards

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1
Q

Basic Rules

A
  1. Governmental conduct- not campus police or security guards
  2. Standing- reasonable expectation of privacy
  3. 2 P’s: Probable cause and particularity
    . If not valid: try to find good faith defense
    . If not, exceptions to warrant requirement
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2
Q

Overview of Amendments

A

4th Amendment:
. Searches and Seizures
5th Amendment:
. Self-incrimination
. Double Jeopardy
6th Amendment:
. Right to Speedy Trial
. Public Trial
. Jury Trial
. Confront Witnesses
. Compulsory Process to Obtain Witnesses
. Assistance of Counsel
8th Amendment:
. Cruel and unusual punishment
. Excessive Fines

5th v 6th am right to counsel: 5th- before formal charges filed against you 6th- offense specific police cannot talk about anything related to that charge but can for other charges

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3
Q

Seizure

A

. Free from unreasonable searches and seizures
. Seizure is any exercise of control by a government agency, under the totality of the circumstances a reasonable person would not feel like they could leave

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4
Q

Arrest

A

. Probable Cause Requirement: must have probable cause based on the totality of the circumstances or trustworthy facts or knowledge that a reasonable person believes the suspect has committed a crime that authorizes arrest
. Warrant generally not required except for home arrests
. Must have probable cause to bring suspect to station for questioning of fingerprinting

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5
Q

Investigatory Detentions: Terry Stops

A

. Police have authority to briefly detain even if they lack PC to arrest, if they have reasonable suspicion supported by articulable fact—not a hunch—to detain for investigative purposes
. Armed and dangerous: if they believe the person is armed, they may frisk for weapons—pat down, no manipulation
. Reasonable suspicion: more than vague suspicion but less than PC
. Informant: if there is a indicia of reliability which may but is not required to have predictive information
. WISCONSIN: relaxed informant test of reliability-observational- if the police find some aspects corroborated, informant is good
. Duration & Scope: must act in diligent and reasonable manner in confirming or dispelling suspicions
. Property Seizures: brief seizures are valid if based on reasonable suspicion

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6
Q

Investigatory Detentions: Automobile Stops

A

. May stop if they have reasonable suspicion to believe that a law has been violate
. Sniff is not a search- must be in reasonable time for stop, and dog alert can be basis for PC for a search in car not home
. Police’s Mistake of Law: if mistake was reasonable, the stop is valid-thought it was illegal to not have 2 brake lights
. Seizure of all occupants: stop constitutes a seizure of all in the car so they have standing to sue for wrongful stop and to suppress evidence
. Checkpoints; Must: stop on neutral, articulable standard (every car), and have a purpose closely related to a particular problem pertaining to automobiles- e.g. drunk driving or to get information at certain time of day
. Occupants ordered out: if lawful stop they can order out in the interest of officer safety and may frisk if they believe armed
. WISCONSIN: to order out ct balances facts against the public interest in the intrusion
. Pretextual Stops: ulterior motive is ok

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7
Q

Search & Seizure Analysis

A

Government conduct
Standing
Valid Warrant
-Probable Cause
-Particularity
Exceptions
Execution

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8
Q

Government Conduct

A

Must be:
. Only police or other government officials, or private individuals acting at the direction of the police (police ask roommate to search)
. Not government officials: security guards, campus police, private individuals

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9
Q

Standing

A

. Must have reasonable expectation of privacy in place or item based on the totality of the circumstances
. Automatic Standing: cell-site location, home
. No Right to Privacy: information in third party hands—bank records, sound of voice, handwriting, paint on car, location of car without a GPS–if police tail you, anything seen in open fields, public airspace, odors from car or luggage, garbage at the curb, not at the house
. WISCONSIN: uses 2 part test: 1) requires actual subjective expectation of privacy, 2) objective factors: property interest, legitimately on premises, complete dominion and control w/right to exclude others, took precautions of privacy, private property use, historical notions

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10
Q

Valid Warrant: Probable Cause

A

. Circumstances that enable magistrate to believe evidence will be found
. Informant: totality of circumstances of reliability and credibility
. Wisconsin Informants: to disclose identity, must show the testimony is necessary to the defense
. Facially Valid: invalid if obtained with 1) false statements, 2) affiant intentionally or recklessly included the false statement, AND 3) the false statement was material to finding of PC—hard threshold to meet, if police believed statement- it is valid
. Good Faith: Police may reasonably rely on facially valid warrant that prosecutor can use even if not supported by PC

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11
Q

Valid Warrant: Particularity

A

. Precise on its face: in the place to be searched and the items to be seized
. May Be Anticipatory: warrant can predict when items may be in subject’s home or possession- drug drops
. 3rd Party Premises: may be searched if they are a nonsuspect and PC is believed that evidence will be found there
. Neutral & Detached Magistrate: state atty general is not neutral

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12
Q

Exceptions: Types

A

Search Incident to Constitutional Arrest
Automobile Exception
Plain View
Consent
Stop & Frisk
Hot Pursuit
Administrative Inspections & Searches
Unreliable & uninvited Ear

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13
Q

Exceptions: Search Incident to Constitutional Arrest

A

. Police may search the person and areas within the wingspan
. Protective Sweep of area if belief of accomplices, Wisconsin: only if officers believe the area harbors a dangerous individual
. Contemporaneous: must be in time and place with arrest, not hours later
. Automobiles: can search passenger compartment incident to arrest if arrestee was unsecured or Gant rule—the police reasonably believe the evidence for which they were arrested may be found in the vehicle- NOT TRUNK
. Tech Searches: court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy to which the degree is needed to promote legitimate gov. interests
. DUI: breath but not blood tests unless unreasonable to perform
. Cell phone: physically may be inspected but not data

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14
Q

Exceptions: Automobile Exceptions

A

. If police have PC to believe vehicle contains fruits of a crime they may search the whole vehicle and trunk proportional to what they are looking for. PC CAN arise after they are stopped but BEFORE search
. If warrantless search is valid- they may tow the vehicle to station and search
. Cannot be searched if in curtilage of home without a warrant
. Passenger’s Belongings: can be searched
. Container Warrant: if PC to search container, cannot search the rest of the vehicle

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15
Q

Exception: Plain view

A

. Warrantless seizure if 1) legitimately on premises 2) discover evidence 3) in plain view, and 4) immediately apparent (have PC ) it is fruit of a crime
. Cannot search in containers- must be plain view

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16
Q

Exception: Consent

A

. Consent: if they have voluntary consent—even if the right to withhold consent is not known—the search is valid. If they say they have a warrant but have lied, that negates consent
. Authority to Consent: any person with equal right to occupy property may consent, if co-occupant objects, search must stop, if objecting co-occupant is lawfully arrested for something else, can search.
. Parent can consent to search of home unless child’s room is always locked and they do not have key- still undecided

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17
Q

Exception: Stop & Frisk

A

. Terry stop: frisk pat-down of outer clothing and body to check for weapons- no manipulation
. Must have articulable and reasonable suspicion of criminal activity
. May reach in an seize any item that is reasonably believed to be a weapon
. May have terry frisk during traffic stop- frisk of person and areas in which weapon may be placed

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18
Q

Exception: Hot Pursuit

A

. Evanescent Evidence: fleeting, only allowed if evidence might disappear quickly- scrape under fingernails, blood test for DUI only if impractical to get a warrant first
. Hot Pursuit: pursuit of a fleeing felon may make search and seizure into private dwelling, but not for a misdemeanor crime. Must be within 15 minutes
. Emergency Aid/Community Caretaker: police may enter premises without a warrant if emergency that threatens the health and safety of an individual or public- does not allow search of home though

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19
Q

Exception: Administrative Inspections & Searches

A

. General and neutral enforcement plan justifies searches of airline passengers
. Public school searches: children in extracurricular activities (not limited to sports, includes dances) and may search children and possessions if: moderate change of finding evidence, reasonably related to the search, not excessively intrusive

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20
Q

Exception: Unreliability & Uninvited Ear

A

. Spearer assumes the right that a person to whom they are talking either consents to the government monitoring the conversation or is an informed that is wired
. Speaker has no claim unless they attempt to make conversation private

21
Q

Warrant Execution Requirements

A

. Only police may execute a warrant
. May not be accompanied by 3rd party unless to aid with identification of stolen property
. Violations of Knock and Announce will NOT result in the suppression of evidence
. Authorizes police to detain occupants during a search but does not allow them to be searched if they were not named in the warrant
Shocks the Conscious
. Evidence obtained in a manner that shocks the conscious or offends a sense of justice is inadmissible under the DPC

22
Q

Confessions: Issues

A

Voluntariness
Right to Counsel
Self-Incrimination/Miranda
Pretrial Identification

23
Q

Confession: Voluntariness

A

. Must be voluntary by the totality of the circumstances
. Harmless Error: if involuntary confession is admitted the harmless error test is applied- conviction will not be overturned if there is other overwhelming evidence of guilt

24
Q

Confessions: Right to Counsel

A

. At all critical stages after judicial proceedings have begun
. 6th amendment right
. NO VIOLATION BEFORE FORMAL PROCEEDINGS: must be charged, not just arrested
. Stages for right to counsel to apply: post-indictment interrogation, preliminary hearings for PC to prosecute (not to detain), arraignment, post(not pre) charge lineups, guilty pleas, misdemeanor with jail time above 6 months, appeals, overnight recesses during trial
. Stages the do not apply: blood sampling, handwriting or voice exemplars, photo ids, pre-charge lineups, discretional appeals, parole and probation revocation hearings, post-conviction proceedings
. Offense Specific: can be questioned in unrelated, uncharged offenses
. Waiver: must be knowingly and voluntarily
. Harmless error applies if there was a violation to right of counsel
. Impeachment: statement obtained in violation of right to counsel is not admissible in case in chief but can be used for impeachment

25
Q

Confessions: Miranda Warnings

A

. Required for 1) Custody and 2) Interrogation
. Need not be verbatim if substance is covered
. 5th amendment right- not 6th
. Inapplicable at GJ hearing- do not apply to uncharged witness testifying before GJ even if under a subpoena
. CUSTODY: when a reasonable person would not feel free to leave based on totality of circumstances
. INTERROGATION: Must be given prior to interrogation by police and must know they are being interrogated by gov agency, not police informant- any words or conduct that would likely elicit an incriminating response
. Spontaneous statements: routine booking questions are not interrogation

26
Q

Miranda: Right to Terminate

A

following a Miranda warning, detainee can
1) Do nothing: if the detainee does not respond, they will not presume waiver of rights but will not presume that they have asserted right to remain silent
2) Waive Right: must be knowingly and voluntary under totality of circumstances
3) Assert Right to Remain Silent: must be explicit, unambiguous and unequivocal and police must scrupulously honor request. May reinitiate questioning after a significant amount of time with new warning
4) Assert Right to Counsel: unambiguously indicates they want counsel, all questioning must cease unless 1) they later waive the right or 2) have been release and 14 days have lapsed since release

27
Q

Miranda: Effect of Violation

A

1) Impeachment; may be used to impeach the defendant’s trial testimony but not as evidence of guilt
2) Nontestimonial Fruits: may be used if the failure to issue was not purposeful, thought cop A gave it
3) Public Safety: allowed interrogation without warning when reasonably prompted by concern for public safety- hidden gun

28
Q

Pretrial Identification

A

. Prohibits introduction of evidence obtained in violation of 4, 5,or 6th amendment rights and excludes all fruit off of the poisonous tree
. **Exceptions that are still admissible
. Fruits derived from statements in violation of Miranda (if not purposeful violation)
. Evidence obtained from a source independent of the original illegality
. Evidence that has a remote connection to the unconstitutional conduct or attenuated from the wrong
. **Acts of free will of the defendant: if the d leaves and come back voluntarily- intervening act
Breaks the chain: 3 In’s that will get evidence in:
1) Independent source
2) Intervening act of free will
3) Inevitable discovery
. Inevitable discovery
. Violations of knock and announce rule
. Live witness testimony: if there was a witness the information will come in
. Identifications: in court: will be let in

29
Q

Exclusionary Rule: Limitations

A

. Inapplicable to grand juries unless law tapping, civil proceedings
. Good faith rule: does not apply when the police arrest someone erroneously, but they think it is valid, exceptions:
1) Affidavit was so lacking no police officer would have relied on it
2) Warrant so lacking in particularity they would not have relied on it
3) Police lied to magistrate to get warrant
4) Magistrate is bias
**Impeachment
. Some illegally obtained information can be used to impeach the defendant’s statements
. Question does not have to say for impeachment, just will it come in, always list this exception
Harmless Error
. Conviction should be overturned but gov can show beyond reasonable doubt they would have been convicted anyway

30
Q

Pretrial: Preliminary Hearing

A

. If there is no probable cause must have hearing within 48 hours

31
Q

Pretrial: Grand Juries

A

. 5th am right has not been incorporated, so they are not required
. Conducted in secret
. Defendant has not right to notice, to be present, miranda warnings, have evidence excluded, right to atty, no right to challenge subpoena or question witnesses
. Exclusion of minorities: conviction resulting from and indictment issued by GJ that members of a minority group have been excluded will be reversed without regard to harmlessness of error

32
Q

Pretrial: Speedy Trial

A

. 6th am right based on totality of circumstances
. LRAP: length, reason, asserted (if defendant asserted right), prejudice
. Remedy is dismissal with prejudice
. **If speedy issue- check whether the defendant has been arrested or charged- if not no speedy trial issue

33
Q

Pretrial: Brady Rule

A

. Duty to disclose exculpatory evidence
. Failure to disclose whether willful or inadvertent violates the DPC and is grounds for reversing a conviction if proof that
1) Evidence is favorable to defendant
2) Prejudice has resulted and reasonable probability that the result of case would have been different if the undisclosed evidence was at trial

34
Q

Pretrial: Competency

A

. Insanity is the mental condition at the time they committed the charged crime
. Competency: mental condition at the time of trial, and is not a defense for the crime charged and does not bar trial

35
Q

Trial: Right to Unbiased Judge

A

. DP violated if judge is shown to have actual malice against defendant or has financial interest
. Not just- if I see you in my court again- not actual malice

36
Q

Trial: Right to Jury Trial

A

. Only for serious offenses, not petty offenses
. Serious if imprisonment for over 6 months is authorized
. No jury trial right for juveniles

37
Q

Trial: Jury

A

. Must be at least 6
. No right to 12
. Must be unanimous
. Cross-section of community: d needs to show underrepresentation but no right to final jury being representative
. Forbidden use of preemptory challenges for racial and gender discrimination
. Impartial standard: juror should be excluded for cause if juror’s views would prevent or substantially impair the performance of duties

38
Q

Trial: Right to Trial

A

. Right to question on racial bias is entitled if race is issue or capital crime
. Right to counsel at trial- but no right in misdemeanor cases without jail time
. Waiver: must be knowing and intelligent and competent to stand trial

39
Q

Trial: IAC

A

Must show
1) Deficient performance and
2) But for, the result would have been different

40
Q

Trial: Confrontation Clause

A

. Right to confront adverse witnesses
. **NOT ABSOLUTE- face to face is not required when preventing confrontation serves and important government purpose-insulating a child witness from testifying

41
Q

Trial: Co-defendant Confession

A

Generally not allowed except:
1) When portions referring to the defendant can be eliminated
2) Confessing defendant takes the stand
3) Used to rebut the defendant’s claim that confession was obtained coercively

42
Q

Trial: Burden of Proof

A

. State must prove beyond reasonable doubt
. May shift burden for affirmative defenses

43
Q

Guilty Pleas

A

. Must be voluntary and intelligent and be on record
. Judge must tell: maximum possible sentence, mandatory minimums, waiving rights to appeal, and has the right not to plead guilty
. Judge does not have to accept plea

44
Q

Sentencing & Punishment

A

. Right to counsel during sentencing
. DP:
1) Murder: jury makes determination of death penalty and all mitigating evidence
2) Rape or Felony Murder: prohibits imposition of DP if the rape was neither intended to result in death or did result in death
3) Sanity is required even at trial, no DP for minors

45
Q

Appeal

A

. No right to appeal
Collateral attack on conviction
. Indigent has no right to counsel in Habeas
. Petitioner has burden of proof by preponderance of the evidence
. Civil action
Rights During Punishment
. Revocation of probation gets counsel unless the sentence is just imposed, then only if representation is necessary to a fair hearing
Prisoner Rights
. DP: regulations impinge if they impose a atypical and significant hardship
. No expectation of privacy in cells

46
Q

Double Jeopardy

A

. May not be retried for the same crime under 5th
. Attachment:
. Jury: empaneling and swearing in of jury
. Bench: first witness sworn
. Juvenile: commencement
. Civil- does not attach except for juvenile
. **Exceptions:
. Hung jury in state trial
. Manifest necessity to abort original trial *Medical emergency
. May retry if there has been a successful appeal unless the ground for reversal was insufficient evidence , based on the weight of evidence but not retried for a higher crime
. Breach of plea bargain
. Could have multiple charges in a single trial but d wants them separately
. Same Offense
. When two crimes are not the same offense unless each crime requires proof of an additional element the other does not require- even though some of the same facts may prove both crimes
. Lesser included offenses: bars retrial for a greater offense bars retrial for lesser included offense unless, there is new evidence if unlawful conduct that is subsequently used to prove the greater offense that 1) has not occurred a the time of prosecution for the lesser offense or 2) has not been discovered despite due diligence
. Separate Sovereigns
. Same conduct can be tried for federal and state, or by 2 different states, or 2 different federal tribunals
. **Can try d for same offense, do not let them distract you with attachment, it does not matter bc different sovereigns
. **Municipalities are part of state so state and municipality cannot try the d

47
Q

Self-Incrimination

A

. Can be asserted by anyone in any type of case, only people not corporations
. Privilege is personal so may be asserted when it might incriminate them
. Must invoke privilege in civil to prevent being waived later in criminal prosecutions
. Defendant has right to not to take witness stand
. Witness must be sworn in and listen to question, then invoke
. **Being required to give one’s name during a Terry stop does not violate the 5th amendment
. Scope: protects only testimonial evidence not real or physical evidence- voice, hair, cheek swab
. Compulsion of documents: must comply is not testimonial evidence
. Occurs when person’s compelled statements are used against them in criminal court
. Prosecutor cannot comment on defendant’s silence at time of arrest or during trial, only if d says they were not even allowed to defend themselves in closing and silence before the miranda can be used against them- but then apply harmless error test

48
Q

Juvenile

A

. No right to trial by jury
. If court adjudicates, jeopardy has attached and cannot be tried as an adult

49
Q

Forfeiture

A

. Excessive fines clause only applies to fines imposed as punishment, not civil fines
. Monetary forfeitures are not subject to 8th amendment

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