Criminal Procedure

Question 1

seizure

Answer 1

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

Question 2

arrest

Answer 2

when the police take a person into custody against their will for purposes of criminal prosecution or interrogation

Question 3

probable cause

Answer 3

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

Question 4

Terry stop

Answer 4

if the police have a reasonable suspicion of criminal activity or involvment in a completed crime, supported by ARTICULABLE FACTS (not a hunch), they may detain a person for investigative purposes.

Question 5

Frisk

Answer 5

the police also have reasonable suspicion at a Terry stop that the detainee is armed and dangerous, they may frisk the detainee for weapons

Question 6

reasonable suspicion

Answer 6

more than just a vague suspicion but is less than probable cause

Question 7

informational checkpoint

Answer 7

must have a neutral, articulable standard and designed closely to the purpose

Question 8

Fourth Amendment Search & Seizure

Answer 8

1) is there governmental conduct?
2) is there standing?
3) is there a valid warrant
4) are there exceptions to the warrant requirement?

Question 9

search

Answer 9

the defendant must have a reasonable expectation of privacy

Question 10

Valid Warrant must be…

Answer 10

based on probable cause, precise on its face, issued by a neutral and detached magistrate OR the police officer’s reliance on the warrant was in good faith

Question 11

Properly executed warrants are . . .

Answer 11

exercised without unreasonable delay, after knock and announce (unless officers or evidence would be endangered) and the person or place searched seized was within the scope of the warrant

Question 12

what are the warrant exceptions?

Answer 12

incident to a constitutional arrest, automobile exception, stop and frisk, hot pursuit, exigent circumstances, evanescent evidence, emergency air, plain view, consent

Question 13

Standing

Answer 13

person owned or had a right to possession of the place to be searched, the place searched was in fact their home, the person was an overnight guest

Question 14

automobile warrant exception

Answer 14

incident to arrest - can search only passenger compartment if arrestee is unsecured or police reasonably believe the evidence of the offense for which the person was arrested may be found in the vehicle

if police have probable cause to believe that a vehicle contains fruits, evidence of a crime, instrumentalities - they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search

Question 15

Plain view exception

Answer 15

police may make a warrantless seizure when they are legitimately on the premises, discover evidence, fruits, contraband, see that evidence in PLAIN VIEW, and have probable cause to believe that the idem is evidence (must be immediately apparent)

Question 16

evanescent evidence

Answer 16

evidence that might disappear quickly if the police took the time to get a warrant

Question 17

hot pursuit

Answer 17

police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling

misdemeanor crimes don’t always justify a warrantless entry into a home

Question 18

Emergency Aid

Answer 18

a police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public

Question 19

6th Amendment right to counsel applies at …

Answer 19

post-indictment interrogation, preliminary hearings to determine probable cause, arraignment, post-charge lineups, guilty pleas and sentencing, felony trials, misdemeanor trials where jail sentence is imposed, appeals as a matter or right and appeals of guilty pleas

Question 20

6th amendment waivers must be…

Answer 20

knowing and voluntary. harmless error for non-trial proceedings and automatic reversal of the conviction if at trial

Question 21

Can 6th amendment violation statements be used to impeach?

Answer 21

yes - but not any statements made in violation as a part of the prosecution’s case in chief

Question 22

miranda warnings

Answer 22

right to remain silent, anything you say can and will be used against you, you have the right to an attorney and if you cannot afford one, one will be appointed for you

must be made prior to interrogation by the police

Question 23

How do you know if something is custodial?

Answer 23

1) requires the court to determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave and 2) whether the relevant environment presents the same inherently coercive pressures and the type of station house questioning at issue in miranda.

Question 24

interrogation

Answer 24

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

Question 25

invocation of right to counsel

Answer 25

must unambiguously indicate that they wish to speak with counsel and ALL questioning must cease.

Question 26

public safety exception to miranda

Answer 26

SCOTUS has allowed interrogation without miranda warnings when it was reasonably prompted by a concern for public safety.

Question 27

when does the sixth amendment right to counsel?

Answer 27

a suspect has a right to the presence of an attorney at any post-charge lineup or showup

no right to counsel at a photo identification or when police take physical evidence (handwriting, etc.)

Question 28

How do you attack an identification as denying due process?

Answer 28

if the identification is unnecessarily suggestive and there is a substantial likelihood of identification

Question 29

what is the exclusionary rule?

Answer 29

prohibits introduction of evidence obtained in violation of a defendant’s 4th, 5th, or 6th amendment rights

Question 30

Fruit of the poisonous tree

Answer 30

evidence obtained from exploitation of unconstitutionally obtained evidence - must be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct

Question 31

exceptions to the fruit of the poisonous tree doctrine

Answer 31

1) fruits developed from statements obtained in violation of Miranda
2) evidence obtained from a source independent of the original illegality
3) act of free will (interrupting by some intervening circumstance so the causal link between the police misconduct and evidence is broken
4) inevitable discovery
5) violations of the knock and announce rule

Question 32

good faith reliance - police

Answer 32

exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking they are acting pursuant to a valid arrest warrant, search warrant, or law

Question 33

exceptions to good faith reliance on a defective warrant

Answer 33

1) affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it
2) the affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it
3) the police officer lied to or mislead the magistrate
4) the magistrate was biased and therefore has wholly abandoned their neutrality

Question 34

violation of the knock and announce rule - can you exclude evidence then?

Answer 34

No - exclusion is not an availably remedy

Question 35

harmless error test

Answer 35

if illegal evidence is admitted, a resulting conviction should be overturned on appeal absent a showing by the government can show that the error was harmless by a reasonable doubt!

right to counsel at trial is NEVER harmless… evidence obtained in violation of this rule will never come in. only can be used for impeachment if the D takes the stand.

Question 36

grand jury and criminal trial differences

Answer 36

1) defendant (grand jury “witness”) has no right to have counsel present during their grand jury testimony
2) grand jury may consider evidence not admissible at trial
3) the “defendant’ must appear if called, but they may refuse to answer questions if the answers may be incriminating

Question 37

how to quash a grand jury indictment?

Answer 37

exclusion of minority groups

Question 38

How to determine whether the 6th amendment right to a speedy trial is violated? When does it attach?

Answer 38

1) Length
2) Reason for delay
3) Asserted
4) Prejudice

LRAP

attaches when the D is arrested or charged

Question 39

Prosecutor’s duty to disclose exculpatory evidence

Answer 39

gov. has a duty to disclose material, exculpatory evidence to the D. D must prove the evidence is favorable, and prejudice has resulted - there is a reasonable probability that the result of the case would have been different

Question 40

When is there a Constitutional right to a jury?

Answer 40

only for serious offenses (if imprisonment for more than 6 months is authorized)

Question 41

How many jurors are necessary?

Answer 41

at least 6

Question 42

is the right to counsel available in misdemeanor cases?

Answer 42

only if imprisonment is actually imposed!

Question 43

Ineffective assistance of counsel

Answer 43

D must point out specific deficiencies and cannot base the claim on inexperience, lack of time to prepare, the complexity of defenses, accessibility of witnesses to counsel, or the gravity of charges

Question 44

Co-defendant’s confession implicates the other . . . how can it be admitted?

Answer 44

1) all portions relating to the other defendant can be eliminated
2) the confessing defendant takes the stand and subjects themselves to cross examination
1) the confession of the non-testifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively

Question 45

Is there a federal constitutional right to an appeal?

Answer 45

NO! However - indigents must be given counsel during a first appeal granted as a matter of right and for appeals of guilty pleas and nolo contendere. NO right at habeus corpus proceedings.

Question 46

Prison due process standard

Answer 46

prison regulations impinge on due process rights only if the regulations impose “atypical and significant hardship” in relation to the ordinary incidents of prison life.

Question 47

When are two crimes not the same offense?

Answer 47

unless each crime requires proof of an additional element that the other does not require

Question 48

what test applies if a prosecutor impermissibly comments on a defendant’s silence?

Answer 48

harmless error

Question 49

are civil fines subject to the excessive fines clause of the 8th amendment?

Answer 49

No. Only fines imposed as punishment. Penal forfeitures are subject but civil forfeitures are not.