Criminal Procedure

Question 1

what is required for info given by a 1) known informant and 2) anonymous informant to constitute probable cause?

Answer 1

• 1) reliable, known informant –> probable cause
• 2) info from unknown informant + independently verified –> probable cause

Question 2

general requirements for asserting 5th Amendment privilege against self incrimination

Answer 2

• natural person/sole proprietorship
• testimonial communication (NOT physical evidence like blood, urine, handwriting)
• self-incriminating (civil liability does NOT count)

Question 3

what is considerered a testimonial communication, thereby classifying it as potentially protected under 5th Amendment privilege against self incrimination?

Answer 3

• oral testimony
• act of producing document

Question 4

when a company is targeted for investigation, are corporate officers protected by the privelge against self incrimination if documents would incriminate them personally?

Answer 4

The privilege against self-incrimination applies only to individuals—not corporations. This means that when a corporation is the target of an investigation, the custodian of corporate records (or other corporate officer) cannot refuse to produce subpoenaed documents by citing this privilege. This is true even if the documents would incriminate the custodian (or officer) personally.

Question 5

can incriminating statements made in custodial interrogations without Miranda warnings be excluded?

Answer 5

yes.

Question 6

can physical evidence obtained during a custodial interrogation without a Miranda warning be excluded?

Answer 6

No. Physical evidence obtained as a result of a non-Mirandized statement is admissible so long as that statement was voluntary (i.e., not coerced).

Question 7

what is the appropriate remedy for an illegal arrest?

Answer 7

suppression of any evidence obtained as a result of the arrest (does NOT prevent the subsequent prosecution of the arrestee)

Question 8

warrant requirements

Answer 8

• based on probable cause
• supported by a sworn oath or affidavit
• issued by a neutral and detached magistrate
• particularly describe the place to be searched and the items to be seized (particularity in the supporting documents will NOT suffice, UNLESS the warrant cross-referenced the supporting documents in the warrant)

Question 9

what are the rules relating to anticipatory search warrants?

Answer 9

anticipatory search warrant—i.e., a warrant that becomes effective only upon the occurrence of a triggering condition—the probable cause requirement is met if:
* at the time of issuance, there is probable cause to believe that the triggering condition will occur and
* if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found at the place to be searched.
* not void for lack of particularity when they fail to state the triggering condition if the supporting affidavit provides sufficient information to evaluate both prongs of the probable cause requirement

Question 10

what is required for school officials acting independently of law enforcement to conduct a search a student?

Answer 10

• reasonable suspicion
• that student violated law or school rules
• the methods used to conduct the search must be (1) reasonably related to the objective of the search and (2) not excessively intrusive considering the student’s age, sex, and the nature of the infraction.

Question 11

Does probable cause that a vehicle contains evidence of a crime justify searching a person who is, or has been, a passenger in the vehicle?

Answer 11

No. Probable cause to believe that a vehicle contains evidence of a crime does not justify a warrantless search of a person who is, or had been, a passenger in the vehicle. Police must have probable cause to believe that evidence is on the passenger before searching the passenger.

Question 12

when are checkpoints valid?

Answer 12

A checkpoint that serves a special law enforcement need unique from the general interest in crime control can justify an automobile stop absent individualized suspicion (e.g. asking for info about a specific crime)

Question 13

does the 5th amendment privilege against self-incrimination prevent law enforcement from searching for and seizing a document pursuant to a valid warrant?

Answer 13

No, because the suspect against whom the search is directed is not required to aid in the discovery, production, or authentication of the incriminating document.

Question 14

What is considered a “critical stage” of proceedings at which a defendant is entitled access to his attorney under the 6th Amendment?

Answer 14

A critical stage is an event where the absence of counsel may prejudice the defendant’s right to a fair trial, including:
* interrogations by jailhouse informants or undercover officers
NOT a critical stage:
* taking of a handwriting exemplar
* revocation of probation (bc treated as imposition of prior sentence)

Question 15

What is the Sixth Amendment** right to counsel of choice**? What is the remedy if denied this right?

Answer 15

• Rule: The Sixth Amendment right to counsel protects non-indigent criminal defendants’ right to choose the attorney who will represent them (exceptions: not barred, conflict of interest, serious potential for a conflict of interest)
• Remedy: The erroneous denial of a defendant’s choice of counsel constitutes structural error and requires automatic reversal of the defendant’s conviction

Question 16

What are the rights and privileges that can be invoked at grand jury proceedings?

Answer 16

Constitutional rights:
* Privilege against self-incrimination (Fifth Amendment)
* Equal protection (Fifth/Fourteenth Amendment)
* Congressmen’s privilege not to be questioned about legislative activities (speech or debate clause)

Privileges:
* Attorney-client privilege
* Spousal privilege
* Marital communications privilege
* Psychotherapist-patient privilege

NO right to cross examine, present evidence, challenge illegal obtained evidence, etc.

Question 17

Are mandatory presumptions allowed against criminal defendants?

Answer 17

No. Mandatory presumptions cannot be used against a criminal defendant to establish an element of the charged crime. Such use would violate the defendant’s **due process rights **by relieving the prosecution of its burden to prove every element of the charged crime beyond a reasonable doubt.

Question 18

Double jeopardy

Answer 18

• the jury is impaneled and sworn (jury trial) or the first witness is sworn in (bench trial)
• aquittal, conviction, or mistrial (no manifest necessity)
• second prosecution involves: identical elements or all elements of one crime are elements of the other
• EXCEPTION: Double Jeopardy Clause does not prohibit such prosecution where the defendant had been charged with the greater offense at the time that the defendant pleads guilty to the lesser included offense

Question 19

When must Miranda be read?

Answer 19

• custodial - arrest OR reasonable person would have believed he could not leave under the totality of the circumstances
• interrogation - a) questioning OR any words or actions that the police know or should know are reasonably likely to elicit an incriminating response b) initiated by a known (as opposed to undercover) law-enforcement officer

Question 20

When does a criminal defendant have a Sixth Amendment right to a jury trial?

Answer 20

There is a constitutional right to a jury trial for non-petty offenses—those that carry an authorized sentence of **more than six months **of imprisonment, regardless of the actual penalty imposed.

Question 21

Does a criminal defendant have an absolute right to a bench trial?

Answer 21

No, the defendant does not have an absolute right to a bench trial. The court or prosecutor may compel the defendant to submit to a jury trial, unless the defendant would be denied a fair trial.

Question 22

When is a Gerstein hearing (to determine probable cause) required?

Answer 22

• within 48 hours of arrest
• if no probable cause determination by grand jury or judicial issuance of warrant

Question 23

Are traffic stops considered custodial for Miranda purposes?

Answer 23

No, because they are brief and temporary.

Question 24

use immunity

Answer 24

• a grant of use immunity by a state or by the federal government prevents the use of testimony given under that grant by another U.S. jurisdiction in prosecuting the witness
• use immunity is all that is required to compell the testimony of a witness

Question 25

when is the use of a drug sniffing dog a search?

Answer 25

• physical intrusion onto constitutionally protected property

Question 26

when is a dog sniff around a car appropriate?

Answer 26

• prolongs traffic stop –> unreasonable
• does not prolong the stop –> dog sniff conducted outside a car for the presence of drugs inside the car does not constitute an unreasonable search when conducted as part of a valid traffic stop, even if the police do not have reasonable suspicion that the car contains illegal drugs

Question 27

Can inconsistent jury verdicts be challenged on the basis of their inconsistency?

Answer 27

No. The rationale behind this rule is that the jury may have reached its decision to acquit through mistake, compromise, or leniency and that its decision should not be disturbed.*

Question 28

What must a criminal defendant show to challenge their conviction based on ineffective assistance of counsel?

Answer 28

Under the Sixth Amendment, all criminal defendants have the right to effective assistance of counsel. To protect that right, a defendant can have his/her conviction overturned by showing:
* deficient performance – the attorney’s representation fell below an objective professional standard of reasonableness and
* prejudice – there is a reasonable probability that, but for that deficiency, the trial’s outcome would have been different.

Question 29

What are the exceptions to the warrant requirement?

Answer 29

• Search incident to lawful arrest
• ADministrative search
• Stop and frisk
• Plain view
• Automobile exception
• Consent
• Exigent Circumstances
• Special government purpose (searches conducted during routine booking procedures after arrest - swab for felony)
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