Criminal Procedure Flashcards
Search and seizures
- Government action: S&S must be by government agent/direction of the government
- Search: government search of a location with a reasonable expectation of privacy
- Open field doctrine: open areas with no expectation of privacy is not a search - probable cause: reasonable person would conclude it is more probable than not that a crime has taken place
- Warrant requirement
Warrant requirement
i. Issued by a neutral and detached magistrate
ii. Facts must be fresh/current
iii. Person/place must be specific
iv. Cannot exceed the scope
- Informants: police can rely on informants for probable cause/to get warrant
- Plain view: police can seize what is in plain view during a lawful search
- Once police finds what he’s looking for through warrant, search must stop
- Illegal search will NOT automatically dismiss indictment
- Protective sweep (separate from the search):
□ Search for additional criminals
□ Allowed for safety with proof of others present
Warrant exceptions - automobile stops
- Illegal automobile stop – no violation: if there was no reason to pull the car over, nothing found is admissible.
- Legal automobile stop – traffic violation: police can search if evidence of crime
- Automobile stop – probable cause: police may search entire car if probably cause the car is carrying contraband
Warrant exceptions
- Consent of one who owns or have apparent authority over the property
- Co-occupant consent:
◊ A present co-occupant can refuse
◊ A non-present co-occupant cannot refuse - Search incident to Lawful arrest:
- Arrest must be lawful; search of person/wingspan
- Arrest of a car occupant: police may search passenger compartment IF:
1. Occupant is unsecured
2. Reasonable belief of evidence of crime of arrest - Inventory search: after arrest at the police station, police can search the person/car
- Exigent circumstances: reasonable belief evidence may be lost or destroyed
- Border search: no warrant necessary
- Search outside the US: US officials may search you on foreign land
- Dog sniff: NOT a search in a public place
- Stop and frisk:
- Stop: reasonable suspicion that criminal activity is afoot
- Frisk: reasonable belief person is armed and dangerous
Random automobile stops: checkpoints allowed with generic, uniform method for stop - automobile stops (see separate card)
Miranda Warning - requirement, elements, waiver
required if under custodial interrogation by government agent
1. Custody: reasonable person would not feel free to leave
2. Interrogation: police attempting to elicit criminal response
- Voluntary statements: no miranda required if suspect volunteers info
Miranda Warnings:
1. Right to remain silent
2. Anything said can be used against you
3. Right to an attorney
4. If you cannot afford one, one will be provided
- If you request a lawyer, all questioning must STOP
- Waiver: knowingly and voluntarily; Totality of circumstance
Right against self-incrimination
- Never required to testify
- May be required to perform physical acts
- Cannot be forced to make statements
Lineups and IDs
Cannot be unnecessarily suggestive; totality of circumstance
- No right to counsel at a lineup PRIOR to indictment
- Right to counsel AFTER indictment
In-court ID that’s reliable may be valid and used against you
Right to counsel
5th amendment right to counsel BEFORE charges or indictment
6th amendment right AFTER formal charges
Waive right to counsel: must knowingly waive
Right to effective counsel
- Did the lawyer deviate from the norms
- Reasonable probability the outcome would have been different
Right to counsel at all critical stages
(generally after indictment)
- Post-indictment interrogation
- Preliminary hearings for probable cause to prosecute
- Arraignment
- Post-charge lineups
- Guilty please and sentencing
- Felony trials
- Misdemeanor trials with imposed imprisonment
- Overnight recesses during trial
- Appeals as a matter of right
- Appeals of guilty pleas
- Pleas of Nolo Contendre
- Co-defendants can share attorney unless conflict arises Undercover cop in jail cell: violates right to counsel, NOT miranda
NO right to counsel
(generally pre-indicment)
- Blood sampling
- Handwriting or voice samples
- Pre-charge/investigative lineups
- Photo IDs
- Preliminary hearings for probable cause to detain
- Brief recess during D’s testimony
- Discretionary appeals
- Parole & probation revocation proceedings
- Post-conviction proceedings
Fair trial and guilty pleas
-Guilty plea must be entered voluntarily and intelligently
- Severance: if two Ds are tried together, one can sever for unfair prejudice
- Impartiality: right to unbiased judge
- Competency: D must be competent to understand charges; D may be medicated
Jury trial rights
- Sentence is longer than 6 months
- Jury is a cross-section of community
- State trial by 6 members must be unanimous
- State trial by 12 members need not be unanimous
- Federal trial by 12 members must be unanimous
Exclusion of a juror based on race/gender violates Equal Protection
Public trial rights
- Press may attend Unless judge has overriding interest to close trial
- Does not apply to Grand Jury
Right of confrontation
right to confront and cross-examine all witnesses
§ Co-defendants: a co-defendant’s confession can only be used against the other if available to testify
§ Out-of-court statement -
□ testimonial statements (not made during an emergency) INADMISSIBLE
Non-testimonial statements (during emergency) are ADMISSIBLE
