Criminal Procedure

Question 1

Seizure

Answer 1

when, under the totality of circumstances, a reasonable person would feel they were not free to decline the officer’s requests or otherwise terminate the encounter.

Question 2

Investigatory stops

Answer 2

police have the authority to briefly detain a person even if they lack probable cause to arrest if they have REASONABLE SUSPICION of criminal activity or involvement in a completed crime, supported by ARTICULABLE facts.

Question 3

Reasonable suspicion

Answer 3

More than vague suspicion, less than probable cause; look to totality of circumstances.

Where reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (including predictive information)

Question 4

Investigatory stops

Answer 4

police have the authority to briefly detain a person even if they lack probable cause to arrest if they have reasonable suspicion (more than vague suspicion, less than probable cause) of criminal activity or involved in a completed crime, supported by articulable facts.

Question 5

When can the police search without a warrant?

Answer 5

1. incident to lawful arrest
2. automobile search
3. plain view
4. consent
5. stop and frisk
6. hot pursuit, exigent circumstances, evanescent evidence, or emergency aid

Question 6

Standing

Answer 6

A person must have standing to object to a governmental search. To have a Fourth Amendment right, a person must have a reasonable expectation of privacy with respect the place or item searched.

Question 7

Where does the defendant have a reasonable expectation of privacy?

Answer 7

1. the person owned or had a right to possession of the place searched
2. the place searched was their home.
3. the person was an overnight guest of the owner of the place searched

If a person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched.

Question 8

Where does the defendant NOT have a reasonable expectation of privacy?

Answer 8

A person does not have a reasonable expectation of privacy in objects HELD OUT TO THE PUBLIC, including information in the hands of third parties, the sound of your voice, the style of your handwriting, the location of your car, anything seen across open fields, anything seen flying over public airspace, odors emanating from your luggage or car, or garbage set out on curb for collection.

Question 9

Search incident to constitutional arrest

Answer 9

Police may search person and areas into which person might obtain weapons or destroy evidence. Police may make protective sweep of area if they believe accomplices to be present.

Car passenger compartment may be searched if
- arrestee is unsecured and may still access interior of vehicle, or
- police reasonably believe evidence for the arrest may be found in car.

Question 10

Stop and frisk

Answer 10

Stop permissible if officer as reasonable suspicion based on articulable facts of criminal activity.

Frisk: officer can pat down outer clothing if they have reason to believe detainee is armed and dangerous. During pat down, officer may seize any item they reasonably believe, based on “plain feel” is a weapon or contraband.

Question 11

Automobile exception

Answer 11

If police have PROBABLE CAUSE to believe a vehicle contains FRUITS, INSTRUMENTALITIES, or EVIDENCE of a crime, they may search the whole vehicle and any container which may reasonably contain the item for which they have probable cause to search.

Probable cause may arise after stop but before anything is searched.

Question 12

Plain view

Answer 12

Police may make a warrantless seizure when
- they are legitimately on the premises
- discover evidence, fruits or instrumentalities of crime or contraband-
- see such evidence in plain view, and
- have probable cause to believe that the item is evidence, contraband, or a fruit or instrumentality of crime (must be immediately apparent)

Question 13

Consent

Answer 13

Police may make a warrantless search if they have voluntary consent. Knowledge of the right to withhold consent is not a prerequisite to establishing voluntary consent.

Question 14

Public schools

Answer 14

Public school officials may search public school students if they have reasonable grounds, in that
- the search offers a MODERATE chance of finding evidence of wrongdoing
- the measures adopted are REASONABLY RELATED to the objectives of the search, and the search is not EXCESSIVELY INTRUSIVE in light of the age and sex of the student and the nature of infraction.

Question 15

Voluntary self-incriminating statement

Answer 15

For a self-incriminating statement to be admissible under the DPC, it must be voluntary, as determined by the totality of the circumstances.

Question 16

Is the person in custody?

Answer 16

1. whether a reasonable person under the circumstances feel they were free to terminate the interrogation and leave
2. whether the environment presents the same inherently coercive pressures as the type of stationhouse questioning at issue in Miranda

Question 17

Interrogation

Answer 17

an interrogation includes any words or conduct by police that they should know would likely elicit an incriminating response from the detainee

Question 18

Waiver of Miranda rights

Answer 18

to be valid, government must show by a preponderance of the evidence that the waiver was knowing and voluntary, considering the totality of the circumstances.

Question 19

Invocation of right to remain silent

Answer 19

To be effective, detainee’s invocation must be explicit, unambiguous, and unequivocal.

Police may resume after waiting a significant amount of time, and re-Mirandizing if questions were limited to a different crime.

Question 20

Invocation of right to counsel

Answer 20

If detainee unambiguously indicates they wish to speak to counsel, all questioning must cease until counsel has been provided unless detainee then waives by reinitiating OR they were released for 14 days.

Question 21

Sixth Amendment right to counsel

Answer 21

A suspect has the right to counsel at all critical stages of criminal prosecution after judicial proceedings have begun, including post-charge lineup or show up (but not at photo id or taking of physical evidence).

Question 22

Due process attack to identification

Answer 22

A lineup violates due process only where the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification. To meet this test, the identification must have been extremely suggestive, like where only one suspect is shown to the witness.

Question 23

Exclusionary rule

Answer 23

All unconstitutionally obtained evidence is inadmissible at trial and all “fruit of the poisonous tree” must also be excluded unless the costs of exclusion outweigh the deterrent effect the exclusion would have on police misconduct

Question 24

Exceptions to the fruit of the poisonous tree doctrine

Answer 24

• fruits derived from statements obtained in violation of Miranda: if police fail to give warnings and detainee gives info that leads to non-testimonial evidence, evidence will be allowed if failure to give warnings was not purposeful.
• evidence obtained from a source independent of original illegality
• evidence for which the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by an intervening event, including defendant’s acts of free will (attenuation)
• evidence that the prosecution can show the police would have inevitably discovered
• violations of knock and announce

Question 25

Harmless error test

Answer 25

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond a reasonable doubt that the error was harmless.

Question 26

Speedy trial

Answer 26

considering the totality of the circumstances: length of delay, reason for delay, whether defendant asserted his right, and prejudice to defendant

Question 27

Guilty plea

Answer 27

Judge must be aware defendant knows and understands the nature of the charge and the crucial elements
the maximum possible penalty and any mandatory minimum and his right not to plead guilty and if he does, he waives the right to trial

Question 28

Due process (judge)

Answer 28

Due process is violated if the judge is shown to have actual malice against the defendant or to have had a financial interest in having the trial result in a guilty verdict

Question 29

Ineffective assistance of counsel

Answer 29

Effective assistance of counsel is generally presumed. Claimant must show: deficient performance by counsel and that but for the deficiency, the result of the proceeding would have been different

Question 30

Bruton rule

Answer 30

If two persons are tried together and one gives a confession that implicates the other, the right of confrontation prohibits the use of that statement. However, the statement may be admitted if
- all portions referring to the other defendant can be eliminated
- the confessing defendant is cross-examined, or
- the confession of the non-testifying co-defendant is being used to rebut defendant’s claim that their confession was obtained coercively

Question 31

Testimonial evidence (Confrontation Clause)

Answer 31

Prior testimonial evidence is inadmissible unless the declarant is unavailable and the defendant had an opportunity to cross examine the declarant

Question 32

Double jeopardy

Answer 32

Under the Fifth Amendment, a person may not be retried for the same offense once jeopardy has attached. Jeopardy attaches in a jury trial at the empaneling and swearing in the jury and when the first witness is sworn in at a bench trial.

Question 33

Exceptions permitting retrial even when jeopardy has attached

Answer 33

• where first trial ended in hung jury
• where trial was discontinued due to manifest necessity
• successful appeal of conviction unless insufficient evidence for guilt
• defendant breaches plea bargain
• defendant elects to have offenses tried separately

Question 34

When are two crimes not the same offense?

Answer 34

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require

Question 35

probable cause

Answer 35

trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law. based on the totality of circumstances

Question 36

Warrant

Answer 36

Warrant will be issued if there is PROBABLE CAUSE to believe that seizable evidence will be found on person or premises. Police must submit affidavit to magistrate. Warrant must describe with PARTICULARITY the place to be searched and the items to be seized

Warrant may still be invalidated if defendant establishes (very narrow):
- false statement by applying officer in affidavit
- false statement was included intentionally or recklessly
- false statement was material to finding of probable cause.