Criminal Procedure

Question 1

To waive 5A right to counsel under Miranda, detainee must:

Answer 1

waive knowingly, voluntarily, intelligently

Question 2

Do Miranda warnings need to be given when interrogated by civilian working for the police?

Answer 2

If the detainee does NOT know the civilian is working for the police, then Miranda warnings do NOT need to be given.

Question 3

What is “interrogation” for Miranda purposes?

Answer 3

Any tactic police use that is likely to elicit an incriminating response.

Question 4

What is “custody” for Miranda purposes?

Answer 4

Custody is determined by an OBJECTIVE TEST:

if a REASONABLE PERSON would believe they ARE NOT FREE TO LEAVE, then person is in custody.

Question 5

If D confesses, but no Miranda given, can the confession be used at trial?

Answer 5

If no Miranda, and the confession was VOLUNTARY, it CAN be used at trial, BUT ONLY TO IMPEACH.

Not to prove D’s guilt.

Question 6

When does a D have a right to a jury trial under fed law?

Answer 6

Under fed law, the D has a right to jury trial is offense is serious–meaning could result more than 6 months of imprisonment.

Question 7

How does the court determine whether D’s right to a speedy trial was violated?

Answer 7

The determination is made by an evaluation of the TOTALITY OF CIRCUMSTANCES, and the following factors should be considered:

(i) length of the delay

(ii) reason for the delay,

(iii) whether the defendant asserted his right, and

(iv) prejudice to the defendant

Question 8

What is the remedy for a violation of the right to speedy trial?

Answer 8

Dismissal with prejudice

Question 9

Can a D invoke his 5A right to remain silent to refuse to disclose the identities of other suspects?

Answer 9

No.

The 5A right to remain silent does not include protecting OTHERS from incrimination.

It only applies to self-incrimination.

Question 10

Is a pretextual stop of car valid?

Answer 10

Stopping a car is a seizure.

Arrest is a seizure.

Police can stop a car if they have **probable cause of a traffic violation. **

Police can arrest a person for a traffic violation if state law allows.

It **does not matter that stopping the car was a pretext to investigate something else. **

Question 11

Plain view exception

Answer 11

Under plain view exception, police may make a warrantless search if:

(1) police is in a place where he is lawfully allowed,

(2) **sees in plain view **items that are

(3) **immediately apparent to be

(4) **contraband or evidence, instrumentalities, or fruits of crime. **

Question 12

Miranda

Answer 12

Under 5A, a police must give a person Miranda warnings BEFORE conducting custodial interrogation.

5A Miranda applies to states through the 14th A Due Process Clause.

Police statements of conduct to elicit an incriminating response constitute interrogation.

A person is in custody if a reasonable person would believe they are not free to leave.

Question 13

Whether a confession should be excluded under the fruit of the poisonous tree doctrine

Answer 13

• Under exclusionary rule, evidence obtained against a person’s constitutional right is inadmissible evidence at trial.
• Under the fruit of poisonous tree doctrine, the exclusionary rule applies to evidence derived from unconstitutionally obtained evidence.
• An exception includes when the police fail to give Miranda, and then the detainee VOLUNTARILY confesseses.
• If confession was NOT voluntary, then under fruit of poisonous tree, the exclusionary rule applies to evidence derived from confession.
• If confession WAS VOLUNTARY BUT police purposefully failed to give Miranda, then the confession is inadmissible.

Question 14

What happens if detainee requests counsel? and what language is needed to request?

Answer 14

Under Miranda, is a suspect unambiguously requests counsel, all questioning must stop until counsel is present

This only applies when the **request is clear. **

Police have no duty to seek clarification of an unclear request.

Question 15

To what does the Exclusionary Rule apply?

Answer 15

The exclusionary rules applies to evidence at trial.

It does NOT apply to grand jury proceedings.

Question 16

Dog Sniff

Answer 16

While there is no reasonable expectation of privacy in their smell, bringing a drug-sniffing dog outside a drug dealer’s home in unconstitutional under 4A.

D has a reasonable expectation of privacy in their home. There must be a warrant to enter the home, absent a warrant exception.

Question 17

Terry Stop

and Frisk

Answer 17

• Terry stop is BRIEF detention for purpose of INVESTIGATING conduct
• Reasonable suspicion is required (less than probable cause but still supported by ARTICULABLE FACTS-not a hunch).
  * Length: no longer than necessary to dispel suspicions or becomes a seizure
• Exception: Checkpoint roadblocks: OK for DUI, Border-crossing but have to been neutrally applied. Not ok for drugs.

Terry Frisk:

If officer reasonably believes person is armed and dangeorus, pat down of the outer clothing and body to CHECK FOR WEAPONS

o If officer reasonably believes by plain feel something is a weapon or contraband, admissible.

o Auto stops: if a vehicle is properly stopped & the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may 1. Conduct the frisk of suspected person, 2. May search the vehicle so long as it is limited to the areas in which a weapon may be placed.

Question 18

4A and “open fields”

Answer 18

There is no 4A reasonable expectation of privacy to land or fields if they are no the cutilage of a house, even if they are fenced in.

Question 19

public school warrant exception

Answer 19

A public school search does NOT require probable cause or a warrant.

The search is reasonable if:
1.** moderate chance **of finding evidence of wrongdoing
2. search measures are reasonably related to objective of search
3. and search is **not excessively intruisive. **

Question 20

post-charge lineup

Answer 20

D has the right to counsel’s presence at a post-charge lineup. They must be present for the WHOLE lineup. No exceptions for good faith mistakes by the police.

Question 21

Do Miranda Rights need to be read to driver when police pulls them over?

Answer 21

If police stopped the car for a routine traffic violation, then the police’s questioning is not cutodial because a stop is usually short and doesn’t ahve coercive pressure.

Thus, Miranda not required before interrogating person for routine traffic stop.

Question 22

Arrests + Warrants

Answer 22

Generally, no warrant required for an arrest. To make an arrest, the police just need probable cause.

However, if police are trying to arrest a suspect in their HOME, then a warrant is required absent a warrant exception.

Question 23

Double Jeopary, what ammendment, what is it, when does it apply

Answer 23

NOTE: Double jeopardy does NOT prohibit the imposition of cumulative sentences for two or more offenses specifically with SEPERATE PUNISHMENTS IF AT A SINGLE TRIAL.

Under the** 5A**, a person has the right to be free from double jeopardy– once jeopardy has attached, they cannot be retried for the same OFFENSE.

In a JURY TRIAL, jeopardy attaches when the JURY IS IMPANELED AND SWORN.

In a BENCH TRIAL, jeopardy attaches when the FIRST WITNESS IS SWORN.

Two crimes do NOT constitute the same offense if EACH crime requires proof of elements that the other does not.

Question 24

Competency to Stand Trial - Judge

Answer 24

Under the CONSTITUTION, if the judge suspects that the D is incompentent, then the judge is obbligated to raise the issue of D’s competency and inquire into it.

This is true regardless of whether D is represented by counsel or pro se.

Question 25

5A- what happens if the D invokes their right to remain silent, but does not request counsel - they just don’t say anything?

Answer 25

If D does not request counsel, and just invokes their right to remain silent, then if police carefully honor the request, they can rewarn D and later resume questioning about a different crime.

Question 26

What is a guilty plea and when is it valid

Answer 26

A guilty plea is a waiver right to a jury trial.

To be a valid waiver, the judge must determine on ther record that it is a voluntary and intelligent choice among the alternative courses of action open to the defendant.

Judge should make sure that the defendant is informed of

1. the nature of the charge to which the plea is offered
2. maximum possible penalty
3. that she has a right not to plead guilty
4. that by pleading guilty she waives her right to a trial.

Question 27

If two persons are tried together and one has given a confession that implicates the other, can it be used to convict the implicated person?

Answer 27

Generally, no.

Under the 6A, a defendant in a criminal prosecution has the right to confront adverse witnesses at trial.

But a defendant cannot be compelled to take the stand.

Thus, if co-defendant refuses to take the stand, then D cannot cross examine them.

Thus, D’s 6A right to confront adverse witnesses at trial is violated.

As** exceptions to the general rule, the statement may be admitted if: **

(i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement);

(ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or

(iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.