Criminal Procedure

Question 1

What is the Exclusionary Rule?

Answer 1

Evidence obtained in violation of defendant’s constitutional rights is inadmissible.

Question 2

What is Fruit of the Poisonous Tree Doctrine?

Answer 2

All evidence derived from inadmissible evidence is inadmissible.

Question 3

What are exceptions to the ER (i.e., when does the taint of derivative fruit “dissipate” and such evidence may be used?)

Answer 3

• Grand jury hearing
• Good faith reliance on warrant
• Certain knock and announce violations
• Independent evidence source or “rediscovery”
• Inevitable discovery
• Intervening act of free will by D
• Use for impeachment
• Attenuation from initial illegality
• Miranda violations (evidence only)

Question 4

What does the 4th A do?

Answer 4

Protects against unreasonable search and seizure by govt and its agents

Question 5

What must an informant’s tip meet?

Answer 5

Totality of the circumstances test: practical, common-sense considerations showing probability of criminal activity based on informant’s veracity, basis of informant’s knowledge, and corroboration from police investigation predictive information showing insider knowledge.

Question 6

What must a defendant show to attack warrants?

Answer 6

Material false statements made intentionally or recklessly (negligently is ok), and facts must be recent and not based on a hunch or reputation

Question 7

What is the mere presence doctrine?

Answer 7

People present on premises of a search are excluded without probably cause, reasonable suspicion, or identification in the warrant

Question 8

What is knock and announce?

Answer 8

Police must give notice and wait a reasonable time before entering to execute a warrant unless they have reasonable suspicion that announcing will lead to endangering officers, evidence destruction, or futility

Question 9

What is a seizure warrant?

Answer 9

A judge issues a search warrant to authorize law enforcement officers to search a particular location and seize specific items.

Question 10

What is necessary for a Terry Stop and Frisk?

Answer 10

Stop: reasonable suspicion - specific and articulable facts that lead to a rational inference that criminal activity is afoot
Frisk: suspect the person may be armed and dangerous

Question 11

When may deadly force be used in seizure (of a suspect)?

Answer 11

• Objectively reasonable circumstances are necessary to prevent escape
• Probable cause to believe that the suspect poses a significant threat of death or serious injury
• Warning given when feasible

Question 12

When may police search a vehicle incident to arrest?

Answer 12

• Can search inside the vehicle incident only when arrestee is unsecured and within reaching distance of a compartment (excluding the trunk unless there is PC)
• Whole vehicle if reasonable belief that evidence relevant to the crime might be found in the vehicle

Question 13

What is the 5th A?

Answer 13

privilege against self-incrimination protects against government-coerced confessions

Question 14

What are derivative and transactional immunity?

Answer 14

Derivative: testimony and evidence derived therefrom cannot be used against D

Transactional: complete protection from prosecution for self-incriminating testimony

Question 15

14th A and voluntariness

Answer 15

For a self-incriminating statement (such as Δ’s admission) to be admissible under 14th Amendment DPC, it must be free and voluntary as determined by TOTC (not motivated by police coercion or official pressure)

Question 16

What is a custodial interrogation?

Answer 16

In custody = reasonable person in PO’s presence feels he is not free to leave or end the encounter

Interrogation = reasonable PO knows/should know he is reasonably likely to elicit incriminating response

Question 17

When does an offense merge into another offense?

Answer 17

Two crimes are the same offense, unless each crime requires proof of a unique element.

Jeopardy attaching to greater offense bars retrials for lesser included offenses (robbery → larceny not permitted – “same offense”)

Jeopardy attaching to lesser included offense bars retrial for a greater offense, unless Π could not have tried the 2nd crime at the time (battery conviction → V later dies as a result → retrial for murder permitted)

Question 18

When does jeopardy attach?

Answer 18

Jeopardy attaches when 1st witness sworn in (non-jury trial) or jury is impaneled (jury trial). Does not attach in civil proceedings (OK to have criminal and civil proceedings for same offense)

Question 19

Can D be prosecuted for the same offense in separate jdx?

Answer 19

Δ can be prosecuted for the same offense in different jx – fed/state/crim/civil levels

Question 20

What is the 6th A?

Answer 20

prevents elicitation of incriminating statements by government after formal charge. Δ has the right to counsel at critical stages of prosecution, e.g., post-indictment interrogation and lineup, guilty plea (NOT investigatory stages). Any crime that results in imprisonment meant that Δ had the right to counsel

Is OFFENSE SPECIFIC

Question 21

When is assistance of counsel ineffective?

Answer 21

Deficient performance: Show particular acts/omissions reasonably competent practitioner would not make

Actual prejudice: Reasonable probability (20-25%) that the result would have been different but for errors

Question 22

When can D represent themself?

Answer 22

Right to self-representation is available to Δ as long as there is a voluntary waiver of the right to counsel at trial by Δ

Judge must consider Δ’s waiver to be knowing + intelligent, and Δ competent to proceed pro se.

EXCEPTION: Δ does not have right to self-rep on appeal (Δ may not waive right to counsel)

Question 23

What is D’s right to a speedy trial?

Answer 23

Attaches under 6A once Δ arrested or charged (knowledge of charges is irrelevant). Remedy for violation is dismissal of case.

Violation factors: unreasonable length of delay (e.g., 1 year), reason for delay (no due diligence by Π), whether Δ asserted right, prejudice to Δ (e.g., destruction of evidence, oppressive incarceration)

Question 24

What are the requirements for D to make a guilty plea?

Answer 24

Guilty pleas must be voluntary + intelligent. Judge must ensure on the record that Δ understands (1) nature of charge and critical elements, (2) maximum and minimum possible penalties, (3) the right not to plead guilty, and (4) that by pleading guilty he waives the right to trial.

Remedy for not meeting above standards: Withdraw plea and plead anew