Criminal Procedure

Question 1

What rights does a person have under the Fourth Amendment?

Priority: High

Answer 1

Under the 4th Amendment, a person is granted protection from unlawful government searches and seizures.

Question 2

When is a person seized?

Priority: High

Answer 2

A person is seized by the police when the officer restrains freedom of movement in such a way that a REASONABLE PERSON WOULD BELIEVE THAT THEY WERE NOT FREE TO LEAVE.

Question 3

When can the police detain someone for a brief period as a stop and inquire?

Priority: High

Answer 3

The Fourth Amendment permits detention of an individual for a brief period of time if the officer has a REASONABLE SUSPICION BASED ON ARTICULABLE FACTS that the individual in question has been RECENTLY INVOLVED IN CRIMINAL ACTIVITY.

Question 4

How is reasonable suspicion determined?

Priority: High

Answer 4

Whether reasonable suspicion exists is based on the totality of the circumstances.

There must be sufficient knowledge to induce an ordinarily prudent person to believe that criminal activity is at hand

Question 5

How does the 5th amendment privilege against self-incrimination protect statements obtained during custodial interrogation?

Priority: High

Answer 5

Under the Fifth Amendment, a person in police custody has a constitutional right to receive Miranda warnings prior to being interrogated in order to secure the privilege against self-incrimination.

Any statement obtained as the result of custodial interrogation may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards to secure the privilege against self-incrimination by informing the suspect of their miranda rights.

Prior to a custodial interrogation a person must be given Miranda warnings to secure the privilege against self-incrimination.

Question 6

What is an interrogation for fifth amendment purposes?

Priority: High

Answer 6

An interrogation refers not only to questioning, but also to any words or actions that the police know or should know are likely to elicit an incriminating response.

Interrogation is either express questioning by the police or any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.

Question 7

When is a person in custody for fifth amendment purposes?

Priority: High

Answer 7

A person is in custody when they reasonably believe they are not free to leave or are otherwise deprived of their freedom in any significant way.

Custody is established if a reasonable person under similar circumstances would believe she was not free to leave.

Custody for Miranda purposes is either a formal arrest or a restraint on freedom.

Question 8

What confessions are not protected by Miranda?

Priority: Medium

Answer 8

Voluntary confessions are not protected by Miranda.

Question 9

When is a confession involuntary?

Priority: Medium

Answer 9

A confession is involuntary if the police coerced the defendant to make the confession by overbearing the suspect’s free will.

Whether a statement is voluntary or coerced is determined based on the totality of the circumstances, including the characteristics of the interrogation, and the characteristics of the defendant.

Question 10

What is the exclusionary rule, and the fruit of the poisonous tree doctrine?

Priority: High

Answer 10

Evidence obtained in violation of a defendant’s constitutional rights is inadmissible in a criminal case. And all derivative evidence stemming from those violations is inadmissible under the fruit of the poisonous tree doctrine.

Question 11

When is an arrest proper?

Priority: High

Answer 11

A proper arrest is one that is based on probable cause.

Facts supporting probable cause may come from a number of different sources including a police officer’s personal observations.

Question 12

What is the plain view doctrine?

Priority: Medium

Answer 12

Under the plain view doctrine, if an item is in public view it may be seized without a warrant since there is no reasonable expectation of privacy for such an item.

Question 13

What is a search incident to lawful arrest?

Priority: Medium

Answer 13

A warrantless search is valid if it reasonable in scope and if it is made incident to a lawful arrest. This search is limited to the suspect’s person or the area within their immediate control.

Question 14

What is the automobile exception?

Priority: Medium

Answer 14

The Fourth Amendment does not require police to obtain a warrant to search a vehicle if they have probable cause to believe it contains contraband or evidence of a criminal activity.

Question 15

What is custodial interrogation?

Priority: Medium

Answer 15

Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody.

A person under arrest is, by definition, in custody and any police questioning of the person under arrest would thus be custodial interrogation.

Question 16

When is questioning of a suspect proper after an arrest?

Priority: Medium

Answer 16

Questioning of a suspect by a police officer subsequent to an arrest must be preceded by Miranda warnings and a waiver otherwise the suspect’s Miranda rights are violated.

Question 17

When does interrogation of an arrestee need to stop?

Priority: High

Answer 17

Interrogation of an arrestee must stop once the arrestee invokes the right to counsel under the fifth amendment.

The interrogation must stop until counsel is present.

Question 18

How is the right to counsel under the fifth amendment invoked?

Priority: High

Answer 18

The right to counsel under the Fifth Amendment is not automatic. In order to invoke this right, the defendant must make a specific, unambiguous statement that they wish to have counsel present.

If a suspect makes an ambiguous statement regarding the right to counsel, the police are not required to end the interrogation or clarify whether the suspect wants to invoke the right.

Question 19

What is the protection against double jeopardy?

Priority: Medium

Answer 19

The Fifth Amendment protection against double jeopardy applies to the states through the Due Process Clause of the Fourteenth Amendment and protects against multiple punishments for the same offense.

Question 20

How does a court determine whether two crimes are the same offense?

Priority: Medium

Answer 20

If a defendant’s conduct may be prosecuted as two or more crimes, then the blockburger test is applied to determine whether the crimes constitute the same offense for double jeopardy purposes.

Question 21

What is required under the blockburger test for two crimes to be separate offenses?

Priority: Medium

Answer 21

Each crime must require the proof of an element that the other does not in order for each to be considered a separate offense.

Question 22

What is a lesser included offense?

Priority: Medium

Answer 22

A lesser included offense is one that does not require proof of an element beyond those required by the greater offense.

The double jeopardy clause generally bars successive prosecutions for greater and lesser included offenses.

Question 23

What is the burden of proof in a criminal case?

Priority: High

Answer 23

The Due Process Clause requires that the prosecution prove all of the elements of the case beyond a reasonable doubt.

Question 24

When does a presumption in a jury instruction violate the due process requirement?

Priority: Medium

Answer 24

A mandatory presumption regarding an element of an offense violates the due-process requirement.

This could include either a conclusive presumption that cannot be rebutted (which would relieve the prosecution of having to prove an element of their case) or a rebuttable mandatory presumption (which shifts the burden of proof regarding the element of the offense).

Question 25

What facts must be submitted to the jury?

Priority: Medium

Answer 25

Any fact, other than a prior conviction, that can be used to increase a sentence beyond the statutorily prescribed maximum must be charged in an indictment, submitted to a jury, and established beyond a reasonable doubt.

Question 26

When is a fact considered an element of a crime?

Priority: Medium

Answer 26

A fact is considered an element of a crime, as opposed to a sentencing enhancement, when it can increase the maximum sentence imposed.

Question 27

How is custody of an imprisoned person determined for the fifth amendment?

Priority: Medium

Answer 27

Imprisonment alone does not necessarily create a custodial situation within the meaning of Miranda. The questioning of a prisoner, who is removed from the general prison population, about events that took place outside the prison is not categorically “custodial” for Miranda purposes.

A standard, objective “totality of the circumstances” analysis applies when an inmate is interviewed, including consideration of the language that is used in summoning the prisoner to the interview and the manner in which the interrogation is conducted.

Question 28

When can police reopen interrogation of a subject who has asserted their right to counsel?

Priority: High

Answer 28

Police may re-open interrogation of a suspect who has asserted their Fifth Amendment right to counsel if there has been a 14 day or more break in custody, the defendant has reinitiated contact, or counsel is present.

In those circumstances, the officers must give fresh Miranda warnings and get a valid waiver before questioning.

Question 29

What warnings are necessary under Miranda?

Priority: High

Answer 29

Law enforcement officials must inform suspects of their right to remain silent and that their statements can be used against them, their right to consult an attorney, to have the attorney present during an interrogation, and that an attorney will be appointed to represent indigent defendants.

The warnings need not be a verbatim repetition of the language used in the Miranda decision, but simply must “reasonably convey” the rights requried by Miranda.

Question 30

What is the rule on competence?

Priority: Medium

Answer 30

A defendant’s incompetency is a bar to trial. The judge has a constitutional duty to investigate and determine the competence of the defendant to stand trial if such evidence is apparent to the judge.

Question 31

When is a defendant incompetent?

Priority: Medium

Answer 31

The test for whether a defendant is competent to stand trial is the same test for determining whether the defendant is competent to plead guilty: whether the defendant comprehends the nature of the proceedings against him and has the ability to consult with a lawyer with a reasonable degree of rational understanding.

Question 32

What happens if the police fail to inform a suspect of their Miranda rights?

Priority: Medium

Answer 32

If the police fail to inform the suspect of their Miranda rights, any incriminating statement obtained as the result of custodial interrogation generally may not be used against the suspect at a subsequent trial.

Question 33

What is the public safety exception to Miranda?

Priority: Medium

Answer 33

One exception to the Miranda requirement permits the police to question a suspect without Miranda warnings when the public’s safety is at risk.

e.g., weapons