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Bar Exam > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

4th Amendment Issues

A
  • Government Conduct/State Action
  • Reasonable Expectation of Privacy
  • Seizure of Persons
  • Warrant Requirement and Exceptions
  • Exclusionary Rule (Fruit of Poisonous Tree & Exceptions)
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2
Q

5th Amendment Issues

A
  • Miranda Rights and Custodial Interrogation
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3
Q

6th Amendment Issues

A

Right to Counsel

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4
Q

Due Process Clause Issues

A

Lineups

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5
Q

Trial Consideration Issues

A
  • Burden of Proof
  • Sentencing enhancement issues
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6
Q

Post-Trial Consideration Issues

A

Double Jeopardy

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7
Q

Addt’l Issues

A
  • Confrontation Clause
  • Guilty Pleas
  • Right to Discharge Atty & Substitute New Atty
  • Right to represent oneself
  • Right to separate trial from Co-Def
  • Right to speedy trial
  • Right to testify at trial
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8
Q

Fourth Amendment prohibits …

A

Unreasonable searches and seizures

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9
Q

What must Defendant show for claim under 4A?

A
  1. Government/police agency action (not private actors)
  2. Violation of Def’s reasonable expectation of privacy as to the places searched or items seized
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10
Q

What is a seizure of person?

A

Freedom of movement restrained by physical force or show of authority

Ask: Under totality of circumstances, would reasonable person not feel free to leave?

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11
Q

Types of Seizures

A
  1. Arrest
  2. Stop and Frisk (Terry)
  3. Police Checkpoint
  4. Traffic Stops
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12
Q

Warrants and Arrest

A

Usually requires warrant, unless officer has probable cause to believe felony has been committed

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13
Q

Stop and Frisk (Terry)

A

Reasonable suspicion someone engaged in criminal activity

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14
Q

Police Checkpoint

A
  1. Done in non-discriminatory manner
  2. Automobile-related reason for checkpoint
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15
Q

Traffic Stop

A

Reasonable suspicion or probable cause that traffic law has been violated

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16
Q

What is a search?

A

Government conduct that violates defendant’s reasonable expectation of privacy

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17
Q

Warrant Requirements

A
  1. Probable Cause
  2. Oath/Affidavit
  3. Neutral and detached magistrate
  4. Describe w/ particularity the places to be searched and items to be seized
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18
Q

Execution of Search Warrant

A

Knock and announce: police must knock and announce presence

Defective warrant: Good faith execution = no violation

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19
Q

Exceptions to Warrant requirement (ESCAPES)

A
  1. Exigent circumstances
  2. Search incident to lawful arrest (probable cause)
  3. Consent
  4. Automobiles
  5. Plain view
  6. Evidence from administrative search
  7. Stop and Frisk
20
Q

Examples of Exigent Circumstances

A
  1. Hot pursuit
  2. Police/public safety
  3. Danger of destruction of evidence
21
Q

Scope of search incident to lawful arrest

A

Defendant and immediate area (wingspan)

  • Arrestee’s home, areas within reach or where others may be hiding
  • Vehicle: Glovebox if within def’s reach or it is reasonable evidence of offense of arrest may be found
22
Q

Automobile Exception

A

If probable cause to believe vehicle contains evidence of crime, police can search any part of vehicle believed to have contraband

23
Q

Plain View Exception Requirements

A
  1. Lawful presence
  2. Item’s incriminating nature immediately apparent
24
Q

Consent requirement

A

Voluntary

25
Q

What is the exclusionary rule?

A

Evidence obtained as a result of government violation of 4th Amendment is excluded

  • Extends to “fruit of the poisonous tree” evidence
26
Q

Exceptions to Exclusionary Rule

A
  1. Inevitable Discovery
  2. Independent Source
  3. Passage of Time (Attentuation)
  4. Good Faith
27
Q

What does the 5th Amendment guarantee?

A

No person shall be compelled to testify against himself in a criminal case (self-incrimination)

  • Applies to testimonial evidence coercively obtained by police
28
Q

When are Miranda warnings required

A

Prior to custodial interrgations

  1. Custody: reasonable belief not free to leave or otherwise deprived of freedom
  2. Interrogation: express questioning OR words/actions likely to elicit an incriminating response
29
Q

Waiver of Miranda Rights

A
  1. Knowing
  2. Voluntary (no gov coercion)

-Requires affirmative statement; silence insufficient

30
Q

Voluntary Statements

A

Miranda waived if given after warning read

  • Def not required to be informed attorney trying to reach him
31
Q

Invoking Miranda Rights

A

Right to counsel
Right to remain silent

32
Q

Right to counsel (5th Amendment)

A

Must be unambiguously asserted; police must stop all questioning

  • Police have no duty to clarify or provide counsel if invocation of right is ambiguous
33
Q

Right to Remain Silent (5th Amendment)

A

Must be unambiguously asserted

34
Q

Re-Approaching Defendant (5th Amendment)

A

After right invoked, police may not re-approach later (applies to counsel, not silence)

Exception: break in custody for 14+ days, police may re-approach Defendant, re-Mirandize, and try for waiver

35
Q

Excluding voluntary confession

A

Not protected by Miranda; admissible

36
Q

Excluding involuntary confession

A

Inadmissible for any purpose

37
Q

How to determine voluntary vs. involuntary confession

A

Totality of circumstances

  1. Police conduct
  2. Def characteristics (age, edu, exp)
  3. Timing of statement
38
Q

Excluding second confession

A

May be admissible if initial confession result of good faith mistake

  • confession obtained in violation of Miranda, rights later read, Defendant waives and confesses again
39
Q

Excluding voluntary statements in violation of Miranda

A

Inadmissible as substantive evidence, but can be used to impeach if inconsistent with later testimony

40
Q

Excluding physcial evidence

A

Physical “fruits” of a voluntary confession can be admissible evidence

41
Q

What does the 6th Amendment guarantee?

A

Right to counsel at all critical stages of prosecution AFTER formal proceedings begin; does not prevent police from police questioning re: other crimes that haven’t been charged

-Formal proceedings = indictment or formal charge
-Critical stage examples: post-charge in-person line-ups, questioning by gov informant

42
Q

Requirements for waiving 6th Amendment rights

A
  1. Knowing
  2. Voluntary
43
Q

Limits on Line-ups under Due Process

A

Must not be conducted in a manner that is

  1. Impermissively suggestive
  2. Provides substantial likelihood of misidentification
44
Q

Trial Considerations - Sentencing

A

Any fact used to increase sentence beyond the statutory maximum must be charged and proved beyond a reasonable doubt

Exception: prior conviction

45
Q

What does double jeopardy prevent?

A
  1. Prosecution for same offense after conviction or acquittal
  2. Multiple punishments for the same offense
46
Q

Double Jeopardy; What is the Blockburger test?

A

Determines same vs. separate offenses

A separate offense means each crime contains an element the other does not

47
Q

What is the purpose of the Blockburger test?

A

Prohibits multiple prosecutions of greater and lesser-included offenses

Defendant can be charged with greater and lesser-included offenses in same action, but cannot be convicted of both; lesser merges

Bar Exam (16 decks)

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