Criminal Procedure

Question 1

Acquittal

Answer 1

Acquittal will be granted only if the evidence presented in the prosecutor’s case-in-chief was so insufficient that NO reasonable jury could conclude that guilt is a rational outcome.

Standard of Proof — Whether the evidence, viewed in a light most favorable to the prosecution, supports a rational finding that all elements of the crime have been established.

Question 2

4th Amendment, in General

Answer 2

Protects from unreasonable searches and seizures by the government in areas in which the complaining individual has a reasonable expectation of privacy.

Question 3

Probable Cause for a Warrant (Presumption)

Answer 3

When police act pursuant to a warrant based on probable cause, their actions are presumptively reasonable. This presumption is rebutted if the defendant can show that there was a warrant defect or a defect in the warrant process.

Question 4

Seizure

Answer 4

Seizure of Property: A government action that results in a “meaningful interference” with a possessory interest.

Seizure of People: If a reasonable person would not feel free to leave, that person has been seized. Can be via a show of force or authority.

Question 5

Search

Answer 5

The 4th Amendment governs searches that occur when police seek to find evidence and physically trespass on one’s person, papers, home, or effects to do so, or intrudes onto a person’s reasonable expectation of privacy.

Question 6

Open Fields

Answer 6

Any private property beyond the curtilage of the home is not protected by the 4th Amendment.

Question 7

Reasonable Expectation of Privacy

Answer 7

Requires:

1. ∆ must manifest a subjective expectation of privacy by making an effort to shield from the public; and
2. That expectation must also be objectively reasonable.

If an item is exposed to a 3rd party, like a cell phone provider, that is considered exposed to the public and there is no expectation of privacy. (Examples: Bank records, conversations with a “false friend”, pen registers, aerial photography, abandoned property, etc.)

Question 8

Use of Animals/Enhancing the Senses

Answer 8

The use of sensory enhancements does not transform a non-search into a search because there is no legitimate expectation of privacy.

However, it is a search if you use the dog/sense-enhancer by bringing it onto the curtilage of one’s home.

Question 9

Invalidating a Warrant

Answer 9

To establish that a warrant is invalid, ∆ must prove that:

1. The warrant was not based on probable cause;
2. The magistrate was not neutral/detached;
3. The warrant was too general (“failed to describe with particularity”); or
4. The affidavit supporting the warrant was so lacking in probable cause that no rookie officer should/would have trusted it.

Question 10

Excluding Evidence from an Invalid Warrant

Answer 10

To exclude evidence obtained under an invalid warrant, ∆ must prove that (1) the warrant was invalid, and (2) that the good faith exception of the exclusionary rule is not applicable.

Question 11

Warrant Execution

Answer 11

Warrant executions that “shocks the conscious” are unreasonable. Example: a warrant to retrieve a bullet embedded in someone’s body.

Question 12

“Knock and Announce” Rule

Answer 12

There is a presumption that the police must knock and announce their identity before entering a home to execute a warrant. However, knock-and-announce is NOT required when police have a reasonable suspicion that doing so will endanger the officers, lead to destruction of evidence, or flight of the suspect.

Violating the knock and announce rule does NOT result in exclusion of evidence.

Question 13

Terry Frisk/Search

Answer 13

A cursory protective search for weapons or anything that might create imminent danger. A terry frisk/search is permitted without a warrant as long as there is reasonable suspicion that they are armed and dangerous.

Frisk is limited to the patting down of the outer clothing. Police can then seize anything they believe is contraband via the “plain touch” variant of the plain view doctrine. Scope of the search is limited to protection/ruling out the risk of a weapon.

Question 14

Administrative Searches

Answer 14

Also known as “agency compliance” inspections, to determine compliance with health/safety/administrative codes and regulations.

No warrant is required for administrative searches, but there must be reasonable suspicion.

Includes airport screenings.

Question 15

Special Needs Doctrine

Answer 15

The police can perform warrantless/suspicion-less limited searches to protect the public from a serious immediate danger. The purpose of the search must be for public safety, and not to produce evidence.

Police can seize evidence found in a special needs search if it is in plain view and the primary purpose was truly to address a specific threat and not to find evidence.

Examples: sobriety checkpoints, searches for escaped inmates, counter-terrorism protections, drug testing pilots, etc.

Question 16

Bases for Challenging the Constitutionality of a Confession

Answer 16

4 ways of proving that a confession was given on unconstitutional grounds:

1. If it was coerced in violation of Due Process rights.
2. If it violates the privilege against self-incrimination and/or Miranda rights.
3. If it violates the 6th Amendment right to counsel.
4. If it was procured as fruit of the poisonous tree (came from an unlawful arrest).

Question 17

Coercion

Answer 17

When government conduct “overbears the free will” of a ∆, the statement is considered involuntary and is inadmissible for any purpose, including impeachment.

Whether a statement was coerced depends on the totality of the circumstances, including —
- The ∆’s age, education, intelligence, etc.
- The location, duration, physical conditions of the interrogations.
- The amount of officers present.
- Whether trickery/deceptions was used by the police (not enough alone).

Coercion is usually found where there is a threat of injury, use of physical force, or relentless psychological pressure.

Governed by 14th Amendment Due Process.

Question 18

5th Amendment Privilege Against Self-Incrimination

Answer 18

“No person shall be compelled in a criminal case to be a witness against themselves.”

A person has absolute privilege under the 5th Amendment when 3 elements are met:
1. The government questioned the ∆ in any context;
2. There was a real and substantial fear that testimony will result in self-incrimination; and
3. There was an assertion of privilege by refusing to testify.

Applies only to testimonial evidence. (Not DN, hair, fingerprints, etc.)

Question 19

Attachment of Miranda Rights and Consequences of Violation

Answer 19

Statements obtained during custodial interrogation in the absence of the proper Miranda warnings and waiver are inadmissible in the prosecution’s case-in-chief. (Are admissible in impeachment)

Miranda warnings/rights are triggered by police custody + interrogation.

“Custody” = When a reasonable/objective person would believe that their freedom has been deprived.

“Interrogation” = If a reasonable officer would anticipate that words/actions are likely to elicit an incriminating response.

Question 20

Invocation of Miranda Rights

Answer 20

Miranda rights are triggered upon police custody + interrogation, and require an unambiguous and unequivocal statement invoking either the right to silence or the right to counsel.

Remaining silent does not constitute a waiver and the police may continue to speak with the ∆.

Post-invocation, the police must stop questioning.

Question 21

Waiver of Miranda Rights

Answer 21

The ∆ must make a knowing and voluntary waiver, otherwise Miranda prohibits using the statements procured in interrogation. A valid waiver is evidence that the subsequent confession/statements were voluntary and in compliance with Due Process.

To establish a waiver, there must have been a showing that:
1. ∆ understood their rights orally or as written; and
2. ∆ made a voluntary decision to waive them.

Prolonged silence may be evidence of understanding the right.

Question 22

Undercover Officers

Answer 22

Undercover questioning does not trigger Miranda warnings. However, be on the look out for 6th Amendment right to counsel protections.

Question 23

6th Amendment Right to Counsel

Answer 23

The 6th Amendment right to counsel is triggered upon the initiation of the “formal adversarial process”. (Initiation includes formal charges, indictment, arraignment, preliminary hearings, etc.)

Under the 6th Amendment a ∆ has the right to counsel during all “critical stages” of prosecution, including physical identification proceedings, trial, etc.

Offense-specific.

The 6th Amendment RTC only applies once a suspect actually becomes a ∆, unlike Miranda!

Question 24

6th Amendment Protections

Answer 24

• The right to a public trial,
• The right to a speedy trial,
• The right to a assistance of counsel,
• The right to an impartial jury, and
• The right to know who your accusers are (the Confrontation Clause).

Question 25

Miranda Warnings

Answer 25

1. The right to remain silent;
2. Anything said can be used against them in court;
3. They are entitled to the presence of an attorney; and
4. That if they cannot afford an attorney, one will be provided.

Question 26

3 Exceptions to the Exclusionary Rule

Answer 26

1. Independent Evidence
2. Attenuation
3. Inevitable Discovery

NOTE: The exclusionary rule is not applicable in grand jury proceedings

Question 27

Grounds for Challenging Admissibility of Identification Evidence

Answer 27

1. Violated Due Process, or
2. Violated the Right to Counsel under the 6th Amendment (doesn’t apply to photo arrays where the ∆ isn’t present)

Question 28

Due Process Standard for Challenging Identifications

Answer 28

Applies to all types of identifications at all stages.

Rule: If the ∆ can prove that the identification process was so unnecessarily suggestive that it created an irreparable risk of mistaken ID, the procedure violates Due Process and is inadmissible.

The ultimate question is reliability.

Exceptions to be made where inherently suggestive procedures may be necessary under the circumstances (i.e., the witness is about to die).

Question 29

Grand Jury

Answer 29

Grand juries are not required for states, although most states choose to implement them.

Grand juries are required to federal cases for any charge with at least a 6 month penalty.

They are not an adversarial hearing, only an investigatory tool. Therefore, the “target” has no right to be present and no right to counsel.

Question 30

Right to a Speedy Trial

Answer 30

Assessed by a totality of the circumstances. ∆ must prove that the delay caused them prejudice, which could include anxiety, oppressive, pre-trial incarceration, or degradation of evidence.

Length — More than one year will trigger an inquiry, but any ∆-requested delays are deduced from the calculation. The clock starts at the time of arrest or charge.

Reason — If the prosecution has no control over the delay, it may be a good reason, and the case will not be dismissed for violation.

Demand — A demand for a speedy trial is not required, but if the ∆ doesn’t make a demand, a court may infer that they are not objecting.

The only remedy is dismissal with prejudice.

6th Amendment

Question 31

Discovery

Answer 31

The prosecution is required to disclose to the ∆ certain evidence that is favorable to the ∆.

If the materials are not requested — only the obviously exculpatory evidence must be disclosed.

If the materials are requested — ANY evidence that would tend to help the ∆ must be disclosed.

Even if the ∆ is able to prove that the prosecution withheld evidence, they must also show that it was material/would have created reasonable doubt to a jury.

FAVORABLE + MATERIAL

Question 32

Ineffective Assistance of Counsel

Answer 32

∆ must prove that their counsel was both ineffective (below the minimum professional standards) and that if their counsel had been effective, there would have been a reasonable probably that the outcome would have been different.

Question 33

Right to a Jury Trial

Answer 33

There is only a right to a jury trial when there is a risk that the penalty could be more than 6 months of confinement.

Jury verdicts must always be unanimous.

Question 34

“Fair Cross Section” Rule

Answer 34

A ∆ has a right to a jury pool comprised of a fair cross section of their community. The actual (“petit”) jury does not have to actually be a fair cross section.

Question 35

6th Amendment Confrontation Clause

Answer 35

The right to confront witnesses and evidence presented against them. Is triggered only by testimonial evidence (emergencies/911 calls are non-testimonial).

Question 36

Double Jeopardy

Answer 36

Intended to prevent undue harassment and expense by eliminating the risk of a defendant being punished twice for the same offense.

A court may not place a ∆ in double jeopardy for the:
1. Same offense,
2. In the same sovereign,
3. More than once.

Double jeopardy attaches when the first witness is sworn in for non-jury trials, or when the jury is sworn in for jury trials.

Question 37

6th Amendment Right to a Jury Trial v. Right to an Attorney (Misdemeanors)

Answer 37

The 6th Amendment right to a jury trial/attorney is applied to the states through the 14th Amendment.

Right to a Jury Trial — Only required for “serious offenses” only; must be a risk of more than 6 months of confinement.

Right to Counsel for Misdemeanors — In order to be required, the ∆ must have been actually sentenced to at least 1 day of confinement.

Question 38

Plea Bargaining

Answer 38

Pleas must be knowing, voluntary, and intelligent.

Defining “intelligent” — The ∆ must be informed of the general nature of the offense that they are pleading guilty to, and the direct consequences (including immigration consequences).

“Alford Plea”: Pleading guilty without admitting guilty; there must be some other evidence in the record to support the guilt.

Question 39

Batson Challenge

Answer 39

3 Step Analysis —

1. The party making the Batson challenge must make a prima facie case of discrimination.
2. The party defending the challenge must have a race/gender neutral reason for striking.
3. The court will then determine if the reason was actually discriminatory.

Question 40

Separate Sovereign Doctrine

Answer 40

Double jeopardy doesn’t prohibit dual prosecution when the prosecutions are by separate sovereigns.

I.e., you can be prosecuted by state and then federal court, or by two separate state courts. (Does not apply to a city within a state)

Question 41

5th Amendment vs. 6th Amendment Rights to Counsel

Answer 41

Question 42

Extended Sentencing/”Apperendi Rule”

Answer 42

Any fact that enhances the sentence of a crime beyond the statutory maximum must be submitted to the jury and proven beyond a reasonable doubt.

Falls under Due Process rights and the 6th Amendment right to a jury.

Question 43

8th Amendment

Answer 43

Cruel and unusual punishment.

If a ∆ is being deprived of basic human needs in the course of his punishment, it is cruel and unusual. This includes access to hot showers, soap, toothpaste, and an environment not infested with vermin.

It is not an excuse that a prison lacks funding.

Question 44

Fruit of the Poisonous Tree Doctrine

Answer 44

Any evidence discovered through the initial illegality falls within the scope of the exclusionary rule. The evidence is presumptively inadmissible absent an exception.

“But for” the illegal/unconstitutional conduct, the government would not have that evidence.

Question 45

Exceptions to the Fruit of the Poisonous Tree Doctrine

Answer 45

1. Independent Source: There is no causal connection between the ∆’s constitutional rights being violated and the discovery of the evidence.
2. Inevitable Discovery: The evidence would have been inevitably discovered via another constitutional search.
3. Attenuation: Evidence was found so distantly from the initial illegality that the “poison has been purged”. Factors include different locations, the passage of time, different officers, and/or a valid Miranda waiver.

Question 46

Exclusionary Rule

Answer 46

A ∆ with standing to invoke the exclusionary rule may do so to prohibit the government from introducing evidence obtained as a direct or derivative result of an unreasonable search or seizure.

Does NOT apply to the use of tainted evidence to impeach a ∆’s testimony. “A shield, not a sword”.

NOTE: The exclusionary rule is NOT applicable in grand jury proceedings.

Question 47

Good-Faith Exception to the Exclusionary Rule

Answer 47

When police rely in good faith on a facially valid warrant that turns out to be invalid, the evidence seized is still admissible.

The purpose of the exclusionary rule is to deter police misconduct, so the exclusionary rule will not apply to misconduct performed by the magistrate/administrative employees.

Test: If the warrant is so facially invalid that a reasonably well-trained officer should have known that it was invalid.

Question 48

Probable Cause

Answer 48

A “fair probability”.

When a reasonable officer (objective standard) is led to conclude that someone committed a crime (probable cause for an arrest) or that evidence related to a crime can be found at a particular location (probable cause for a search).

While an objective standard is used, an officer’s subjective motives will not invalidate probable cause if the objective facts still exist.

Question 49

Informant Tips to Create Probable Cause

Answer 49

A totality of the circumstances test is use to determine if the tip was reasonable/reliable.

An informant’s tip may serve as a basis for probable cause if:
1. The tip contains specific details; and
2. Both the details and the informant are reliable. (AKA, the police can confirm “predictive insider details”.)

Question 50

Arrests

Answer 50

No warrant is required for an arrest in public for a felony. Misdemeanor arrests must have either occurred in the presence of the police, or have a warrant.

Probable cause is ALWAYS required for a valid arrest.

Question 51

Terry Stop

Answer 51

“A brief investigatory seizure.” The 4th Amendment permits detention of an individual for a brief period of time if the police have a “reasonable, articulable suspicion” that the individual has been recently involved in criminal activity.

Only require reasonable, articulable suspicion (as opposed to probable cause) because they are less intrusive than arrests.

Terry stops are limited to the time needed to exercise due diligence and to either confirm or negate the reasonable suspicion.

Question 52

Reasonable Suspicion

Answer 52

Not as strong as probable cause, but must be more than a hunch.

The officer must be able to articulate an objective fact supporting their experience-based instinct or suspicion.

Reasonable suspicion will only justify a Terry stop or frisk.

However, reasonable suspicion can grow into probable cause after a stop.

Question 53

Establishing Reasonable Suspicion

Answer 53

Reasonable suspicion can be created by either:
- Police observation/eyewitness report;
- A person’s flight from a high-crime area; or
- An informant tip/prediction + corroboration.

Unlike probable cause, an anonymous/insider tip does not have to have “insider” access/information, but must be predictive.

Question 54

Plain View Doctrine

Answer 54

If officers are in a lawful position from which they can view an object that has an immediately apparent incriminating nature, and the officers have a lawful right to access it, they may seize it without a warrant.

Three elements —
1. Police observed the property while in a lawful vantage point (i.e. not peeking through a window, etc.)
2. What the police observed created probable cause to justify the seizure (“immediately apparent incriminating nature”); and
3. The officer had lawful access to the point of seizure (aka, the item was truly in plain view).

Exception to the warrant requirement.

Question 55

Exceptions to the Warrant Requirement for a Seizure

Answer 55

You don’t need a warrant to seize property with probable cause during:

• An arrest (search incident to arrest).
• A Terry stop/frisk (must have reasonable suspicion).
• A routine police encounter.
• Items in plain view.

Question 56

Exceptions to the Warrant Requirement for a Serach

Answer 56

You don’t need a warrant to search a person/property with probable cause if there is:

• An exigency;
• A search incident to a lawful arrest;
• A search of an automobile incident to a lawful arrest;
• The search of a car, in general;
• Inventory searches;
• Consent to search;
• Third party consent to search;
• Special Needs Doctrine;
• Border exception;
• An administrative search; or
• A Terry frisk/search.

Question 57

Exigency

Answer 57

If police have probable cause, they may search without a warrant if they reasonably believe that waiting to get a warrant will result in either (1) imminent flight, (2) imminent destruction of evidence, or (3) imminent danger to police or others.

Additionally, when police are in “hot pursuit”, they can go into any home the suspect retreats into without a warrant, and then seize any property in plain view (with P.C.).

Police may create the exigency, but there can never be an exigency for a minor offense.

Case by case assessment.

Question 58

Blood Draws

Answer 58

Drawing blood MAY be justified by exigency to preserve evidence of blood alcohol content, but only if the police reasonably believe that evidence will be lost while waiting for a warrant.

However, this is not a per se exception to the warrant requirement, and must be evaluated on a case by case basis. Any law allowing the police to automatically conduct a warrantless blood draw would be overbroad and in violation of the 4th Amendment.

Question 59

Search Incident to a Lawful Arrest

Answer 59

Police may automatically conduct a warrantless search of an arrestee and the area within their immediate control/lunging distance, including any containers. Search must be contemporaneous to the arrest.

The purpose of this search is for officer safety and preservation of evidence.

NOTE: There is no search incident to a mere citation, only full arrests.

Question 60

Search Incident to a Lawful Arrest (In the Home)

Answer 60

If arrested in the home, the police cannot search the entire home. They may only do a cursory protective sweep and seize anything under the plain view doctrine.

Police may search the entire home if there is reasonable suspicion that the arrestee has armed co-perpetrators in the building.

Question 61

Automobile Searches Incident to Arrest

Answer 61

Depend on if the arrestee still have access to the interior of the car.

If there is still genuine access — a search incident to the lawful arrest extends to the interior of the car and all containers.

If the arrestee is secured/has no access to the car — the search includes the interior of the car ONLY if the police have reason to believe that evidence related to the crime of arrest is in the car.

Searches incident to a lawful arrest will never apply to the trunk.

Question 62

Automobile Exception to the Warrant Requirement

Answer 62

Because a car is inherently mobile and subject to pervasive government regulation, there is a reduced expectation of privacy within one’s car. Police are able to search a car without a warrant as long as they have probable cause.

The scope of the search is limited to what they would have been able to search for with a warrant.

To qualify, the automobile must be able to move “at the turn of a key”, i.e., not a bicycle. Does not apply to immobile vehicles.

Question 63

Inventory Exception for Warrant Requirement

Answer 63

“Inventory” administrative searches are inspections of impounded cars of the arrestee’s property once they have been taken into custody. Do not require a warrant.

Justification of this exception is to protect the arrestee’s property and prevent contraband from entering the jail.

Question 64

Consent to a Search

Answer 64

Voluntary consent allows police to search within the scope of consent even without a warrant or probable cause. Any contraband in plain view can be seized.

There is no requirement to inform the consenter that there is a right to decline consent. A voluntary consent does not have to mean an intelligent one.

The scope of consent is usually implied based on the officer’s request.

One can always refuse, withdraw, or limit consent. Denying consent by itself cannot create probable cause or reasonable suspicion.

Question 65

Third-Party Consent to a Search

Answer 65

Police do not need a warrant if they are reasonably relying on a third party’s consent who has actual or “reasonably apparent authority” over the area.

Third-party consent does not apply to —
- A landlord’s consent to a tenant’s apartment;
- A motel owner’s consent to a guest’s room;
- An employer’s consent to an employee’s private storage area, etc.

The police cannot rely on a third party’s consent when the other party is present and objecting.

Question 66

Expiration of Miranda Invocation

Answer 66

The Supreme Court has held that if a suspect has been released from interrogative custody, the police obligation to honor an invocation of the Miranda right to counsel expires after 14 days.

To resume questioning anew, the police must provide a fresh set of Miranda warnings.

Question 67

Fourteenth Amendment Voluntariness under the Due Process Clause

Answer 67

The standard for excluding a confession under the 14th Amendment Due Process clause is:

1. Whether the police subjected the suspect to coercive conduct and
2. Whether the coercive conduct was sufficient to overcome the will of the suspect.

Neither confessions nor fruits of the confession can be admitted if the 14th Amendment is violated by coercion.

Question 68

Three Elements of a Miranda Waiver

Answer 68

1. Knowing, 2. Intelligent, and 3. Voluntary.

Question 69

Overnight Recess

Answer 69

A criminal ∆ cannot be ordered to refrain from consulting their attorney during an overnight recess. (Geders) An overnight denial of counsel constitutes a deprivation of assistance of counsel under the 6th Amendment, and will amount to a reversal.

Question 70

Massiah Rule

Answer 70

Prohibits the police from using deliberate efforts to acquire incriminating information from a suspect who has been formally charged, unless the suspect’s attorney is present or the right to counsel has been waived.

AKA, the police can’t question a defendant until their attorney is present or their right to counsel has been waived.

Based on the 6th Amendment right to counsel.

Question 71

Death Penalty for Minors

Answer 71

The 8th Amendment prohibits imposing the death penalty on anyone under the age of 18. The age of the defendant is determined by the age that they were at the time that they committed the crime, not at the time of sentencing.

Question 72

Line Ups

Answer 72

If the ∆ has already been indicted, they have a right to an attorney to be present under the 6th Amendment. If their attorney is not present and the right hasn’t been waived, the lineup is inadmissible.

However, the inadmissibility of the lineup does not preclude in-court statements of identification that are made on an independent basis/source.

Question 73

When Can Officers Search a Vehicle Following an Arrest

Answer 73

(1) When the ∆ is still in reaching distance of the car, or
(2) It is reasonable to believe the vehicle contains evidence of the offense of arrest.

Question 74

Double Jeopardy Exceptions

Answer 74

Appeals, and dismissals of a case that are unrelated to the guilt or innocence of the ∆.

If a conviction is reversed on appeal, it will be remanded to the trial court for a re-trial if the prosecution decides to do so.

For example, where a conviction is reversed due to the conviction being against the weight of the evidence (meaning there was sufficient evidence to support conviction, but the appeals court disagreed with the jury’s findings).

Question 75

Indigent Defense on Appeal

Answer 75

The U.S. Supreme Court has held that an indigent criminal defendant does not have the right to court-appointed counsel on a discretionary appeal (the second one), as long as there are provisions for free transcripts of the record below and provisions for reduced or free filing fees.