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CA Bar Exam Essay Rules > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

4th Amendment - Arrest

A
  • Need warrant if in home
  • Warrant based on probable cause
  • Probable cause is reasonable belief law was violated
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2
Q

Three Types of Allowed Routine Stops?

A
  1. Automobile: if reasonable suspicion based on objective standard
  2. Fixed checkpoints for compliance with laws
  3. Stop and Frisk: if reasonable suspicion supported by articulable facts
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3
Q

4th Amendment - Search and Seizure?

A

Prohibits unreasonable search and seizure; without warrant presumed unreasonable.

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4
Q

Three Reasonable Expectation of Privacy Scenarios?

A
  • Open fields/flyover: generally fine because outside home in view of public
  • Sensory Enhancing: only ok if availble to public and not invasive
  • Dog Sniffing: cannot extend beyond reasonable time required unless reasonable suspicion
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5
Q

4th Amendment - Warrant Requirements?

A
  1. Probable cause
  2. Neutral magistrate
  3. Particularity

Generally, must knock and announce.

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6
Q

No Warrant Exceptions?

A

SPACES
1. Search Incident to Arrest: lawful arrest, within reach
2. Plain View
3. Automobile: only with probably cause it contains evidence/contraband; impound if arrested
4. Consent
5. Exigent Circumstances: destruction of evidence, injury to persons, hot pursuit
6. Stop and Frisk: reasonable suspicion, based on articulable facts, pat down only for weapons; plain feel doctrine

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7
Q

5th Amendment - Miranda Warnings?

A
  1. Right to remain silent
  2. Anything said may be used against
  3. Right to attorney
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8
Q

5th Amendment - Miranda Required If:

A

Custodial interrogation.
* Custodial = reasonable person would beleive not free to leave
* Interrogation = words/actions by police that they should know are reasonably likely to elicit incriminating response.

Suspect must be aware. Undercover agent is not custodial.

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9
Q

5th Amendment - Miranda Exception?

A

Public Safety prompted and related questions

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10
Q

5th Amendment - Re-Mirandize?

A

Only after 14 days after custody

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11
Q

5th Amendment - Waiver of Miranda?

A

Voluntary, knowlingly, intelligently. May be express or implied.

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12
Q

5th Amendment - Right to Counsel - How to invoke and result?

A
  • Unambigious requirest by accused to invoke
  • Police must stop all questioning without lawyer present
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13
Q

5th Amendment - Right Against Self-Incrimination?

A

Applies only to:
1. Testimony or communicative evidence
2. That could expose her to criminal liability

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14
Q

5th Amendment - Double Jeopardy?

A
  • Cannot be tried for same offense twice
  • Applies if jury or first witness sworn in
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15
Q

5th Amendment - Due Process

A
  • Confession must be voluntary
  • No unneccessarily suggestive identification
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16
Q

6th Amendment - Right to Counsel?

A
  • Counsel at post-charge line up, show up, or sentencing.
  • NOT for photo id, handwriting, fingerprints, physical evidence
17
Q

6th Amendment - Ineffective Assistance of Counsel?

A
  • Counsel performance deficient
  • Based on reasonably competent attorney
  • Requires different result but for deficient performance
18
Q

6th Amendment - Confront Witnesses?

A
  1. Adverse/hostile witness
  2. Compel testimony or cross-examine
  3. Only for testimonial statements (not testimonial during on-going emergency)
  4. For co-defendant (if one confesses): redact statement or other D takes the stand for cross
19
Q

6th Amendment - Right to Jury Trial When?

A
  1. Serious offenses
  2. With potential imprisonment of > six months
20
Q

6th Amendment - # of Jurors?

A
  • At least 6 but may be 12
  • If 6, must be unanimous
  • Federal crime: unanimous
21
Q

6th Amendment - Not Fair Cross Section If:

A
  1. Group excluded is distinctive
  2. # in represented group not reasonable compared to # in community; and
  3. Systemic exclusion
22
Q

6th Amendment - Right to Speedy Trial Balancing Factors?

A
  1. Length of delay
  2. Reason for delay
  3. Prejudice to D
  4. Time and manner in which D asserted right
23
Q

6th Amendment - Right to Preliminary Hearing?

A

Right to if probably cause not established. May waive. Varies by jurisdiction.

24
Q

Exclusionary Rule?

A
  • Cannot use evidence if found in violation of D’s 4th, 5th, or 6th Amendment rights.
  • D needs standing - must be her own rights violated (not someone else’s)
25
Q

Fruit of the Poisonois Tree Doctrine?

A

Other evidence stemming from violation of 4th, 5th, and 6th Amendment rights also inadmissible.

26
Q

Fruit of the Poisonous Tree Doctrine Exceptions?

A
  1. Indepedent Source - Could have been obtained
  2. Inevitable Discovery - Would have been obtained
  3. Purged taint - enough intervening factors to remove taint
27
Q

Exlusionary Rule Limitations?

A
  1. Still can be used for impeachment
  2. Does not apply in civil, parole, or grand jury hearings
28
Q

Good Faith Warrant Exception?

A
  • Improper warrant results in 4th Amendment violation but evidence not barred if officers acted in good faith.
  • Not applicable if lie, no probable cause, or defective on face
29
Q

Voluntary Confessions?

A
  • No police coercion
  • Totality of the circumstances
  • Mental illness irrelevant
30
Q

Due Process: Identification?

A
  • No unnecessarily suggestive ID of D
  • Totality of circumstances
  • ID unfair to defendant
31
Q

Plea Bargain?

A
  • Voluntary, intelligent
  • No obligation to plea
  • Judge does not have to accept
32
Q

8th Amendment - Bail

A

Not excessive/unduely high.
Court considers:
1. Seriousness of offense
2. Weight of evidence against D
3. D’s financial abilities
4. D’s character

33
Q

8th Amendment - Cruel and Unusual Punishment?

A
  • Cannot be grossly disporoprtionate to crime
  • No death for mentally handicap or minor
  • Victim statemetns allowed during penalty phase
  • Jury considers mitigating circumstances against death

CA Bar Exam Essay Rules (16 decks)

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