Criminal Procedure Flashcards
The Constitution provides the ___ of protection for criminal defendants. States are free to grant greater protection, and many do
floor
The first eight amendments to the U.S. Constitution apply to the federal government. Most of these rights are applicable to the states through the ____
Due Process Clause of the Fourteenth Amendment.
The right to ___ has been held not to be binding on the states. It has not yet been determined whether the ____.
indictment by a grand jury for capital and infamous crimes
Eighth Amendment prohibition against excessive bail creates a right to bail (However, most state constitutions create a right to bail and prohibit excessive bail.)
The Fourth Amendment provides that people should be free from ____
unreasonable searches and seizures.
___ by a government agent over a person or thing is a seizure.
Any exercise of control
Governmental seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and so must be ____
reasonable.
A seizure occurs when, 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
An arrest occurs when the police take a person into custody _____
against their will for purposes of criminal prosecution or interrogation.
An arrest must be based on ____
probable cause
PC for arrests is defined as
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. Probable cause is based on the totality of the circumstances.
A warrant generally is not required before arresting a person in _____. However, police generally must have a warrant to effect a ____
a public place; nonemergency arrest of a person in their home.
The officers executing an arrest warrant may enter the suspect’s home only if ____
there is reason to believe the suspect is within it.
Police must have full probable cause for arrest to bring a suspect to the station for ____
questioning or fingerprinting against the person’s will.
An unlawful arrest, by itself, has ____ sequent criminal prosecution.
no impact
The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a ___
reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (based on TOC)
For a Terry Stop the police may detain a person for ____
investigative purposes
If the police also have reasonable suspicion that the detainee is ____, they may frisk the detainee for weapons.
armed and dangerous
When reasonable suspicion is based on an informant’s tip, there must be an ____ to be sufficient.
indicia of reliability (including predictive information)
Investigatory stops are not subject to a specific time limit. The police must act in a ____
diligent and reasonable manner in confirming or dispelling their suspicions.
During a Terry Stop the police may ask the detained person to ____ (that is, state their name) and generally may ___ the detainee for failure to comply with such a request.
identify themself; arrest
Brief ____ seizures are similarly valid if based on reasonable suspicion (Terry)
property
Generally, police officers may stop a car if they have ____
at least reasonable suspicion to believe that a law has been violated.
During routine traffic stops, a dog sniff is ____, so long as the police do not ____
not a search; extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.
The Supreme Court held that during such a traffic stop, a dog “alert” to the presence of drugs can ____
form the basis for probable cause for a
search.
The Supreme Court held that the police
(without probable cause) cannot use a drug sniffing dog ____
outside of the home of a suspected drug dealer.
A police officer’s mistake of law does not invalidate
a seizure as long as the mistake was ____.
reasonable
An automobile stop constitutes a seizure of ____
the automobile’s driver and any passengers as well.
If the police set up a roadblock for purposes ____, the roadblock will be constitutional.
other than seeking incriminating information about the drivers stopped
If ____ needs are involved,
the Supreme Court allows police officers to set up roadblocks to stop cars without individualized suspicion that the driver violated some law.
special law enforcement
To be valid, the roadblock must:
- Stop cars on the basis of some neutral, articulable standard (for example, every car) and
- Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility
A roadblock to test for ____ is valid because of the pervasiveness of the driving problem, but a roadblock to s____ is not valid because the purpose of such a checkpoint is only to detect evidence of ordinary criminal wrongdoing.
drunk drivers; search cars for illegal drugs
After lawfully stopping a vehicle, in the interest of officer safety, the officer may ____. Moreover,
if the officer reasonably believes the detainees are armed, the officer may ____, even after the officer has ordered the occupants out.
order the occupants of the vehicle to get out; frisk the occupants and search the passenger compartment for weapons
If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if ____
their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop (pre-textual stop)
If the police have probable cause to believe that a suspect has hidden drugs in their home, they may, ____ so that they can prevent the suspect from destroying the drugs while they obtain a search warrant.
for a reasonable time, prevent the suspect from going into the home unaccompanied
A valid warrant to search for contraband allows the police to ____ during a proper search.
detain occupants of the premises
There is a Fourth Amendment “seizure” when a police officer uses ___ to apprehend a suspect. Thus, an officer may not do this unless it is ____ to do so under the circumstances
deadly force; reasonable
Like arrests, evidentiary searches and seizures must be reasonable to be valid under the Fourth Amendment, but here reasonableness requires ____
a warrant except in six circumstances.
Evidentiary search and seizure issues should be approached using the following analytical model:
1 - is there governmental conduct
2- Is there standing (reasonable expectation of privacy)
3 - Is there a valid warrant (PC, particularity)
4 - if no warrant, exceptions to the warrant requirement
The Fourth Amendment generally protects only against _____. It does not protect against searches by privately paid police unless they are ____
governmental conduct; deputized as officers of the public police.
There are two ways in which searches and seizures can implicate an individual’s Fourth Amendment rights:
(1) search or seizure by a government agent of a constitutionally protected area in which the
individual had a reasonable expectation of privacy; or
(2) physical intrusion by the government into a constitutionally protected area to obtain information.
To have a Fourth Amendment right, a person must have ____
their own reasonable expectation of privacy with respect to the place searched or the item seized.
The determination of whether a person has a reasonable expectation of privacy is made on the totality of the circumstances, but a person has a reasonable expectation of privacy any time:
- The person owned or had a right to possession of the place searched
- The place searched was in fact their home, whether or not they owned or had a right to possession of it (for example, a grandchild
living at a grandparent’s home); or - The person was an overnight guest of the owner of the place searched
There is an important “sometimes” category of standing: The person ____. In this context a person
has standing only if they have a reasonable expectation of privacy in the item or area searched.
owns the property seized
A person does not have a reasonable expectation of privacy after telling someone to ____
throw something away
A person does not have a reasonable expectation of privacy in objects held ____
out to the public (generally includes information in the hands of third parties)
A person does have a reasonable expectation of privacy in their ____ which is stored in the hands of
third parties.
cell-site location information (that is, personal location information derived from cell phone usage data)
The following is a list of things held out to the public, the seizure of which implicates no right to privacy:
(1) The sound of your voice
(2) The style of your handwriting
(3) The paint on the outside of your car
(4) Account records held by a bank
(5) The location of your car on a public street or in a driveway
(6) Anything that can be seen across the open fields
(7) Anything that can be seen from flying over public airspace
(8) The odors emanating from your luggage or car; and
(9) Garbage set out on the curb for collection
Even though the location of acar on a public street is not entitled to a REP the Supreme Court held that ____ constitutes a search within the Fourth Amendment.
installation of a GPS device on a suspect’s car
Use of sense-enhancing technology that is ____ violates the suspect’s legitimate expectation of privacy.
not in general public use (for example, a thermal imager as opposed to a telephoto camera lens) to obtain information from inside a suspect’s home that could not otherwise be obtained without physical intrusion
There are two core requirements for a facially valid search warrant: (+ one more)
probable cause and particularity. +issued by neutral and detached magistrate
A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time ____
the warrant is executed.
Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to ____
make a determination of probable cause independent of the officers’ conclusions.
An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the informant’s _____ are relevant factors in making this determination. Note that the informer’s identity generally ____
reliability and credibility or their basis for knowledge; need not be revealed.
A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:
- A false statement was included in the affidavit by the affiant (the officer applying for the warrant)
- The affiant intentionally or recklessly included the false statement; and
- The false statement was material to the finding of probable cause
–> This test for invalidating the affidavit is very restrictive—all three requirements for invalidity (falsehood, intentionally or recklessly included, and material to probable cause) must be met.
Evidence obtained by the police _____ may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.
in reasonable reliance on a facially valid warrant
The good faith exception to relying on a facially valid warrant applies only if the police
____. The exception does not apply if the police ____ a warrant.
obtained a warrant and it is invalid; failed to obtain
A warrant must describe with particularity the ____. If it does not, the warrant is unconstitutional, even if ____
place to be searched and items to be seized; the underlying affidavit gives such detail.
A warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time ____
the warrant is issued.
A warrant may be obtained to search premises belonging to nonsuspects, as long as there is ____
probable cause to believe that evidence will
be found there.
The magistrate who issues the warrant must be ____
neutral and detached
Requirements for executing a warrant
- Only the police (and not private citizens) may execute a warrant
- It must be executed without unreasonable delay
- Police must knock, announce their purpose, and wait a reasonable time for admittance (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation)
- The police may not be accompanied by any third
parties unless the third parties are present to aid in identifying stolen property. - The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant
Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not ____
specified in the warrant
Violations of the knock and announce rule will ____.
not result in the suppression of evidence otherwise properly obtained
A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize the police to search persons found on the premises who ____. Neither does the warrant give
officers authority to ____ the warrant was executed.
were not named in the warrant; follow, stop, detain, and search persons who left the premises shortly before (but if they have reasonable suspicion = Terry)
Detentions are limited to persons in the ____ when the warrant is being executed.
immediate vicinity of the premises
Exceptions to the warrant requirement.
- Incident to constitutional arrest
- Automobile search
- Plain view
- Consent
- Stop and frisk
- Hot pursuit, exigent circumstances, evanescent
evidence, emergency aid
All warrantless searches conducted by law enforcement officers are unconstitutional unless ____
they fit into one of six recognized exceptions to the warrant requirement.
Incident to a constitutional arrest the police may ____.
search the person and areas into which they might reach to obtain weapons or destroy evidence.
Incident to a constitutional arrest the police may also make a protective sweep of the area if ____
they believe accomplices may be present.
The search incidental to lawful arrest must be ____ with the arrest
contemporaneous in time and place
If an arrest is unconstitutional, any search incident to that arrest is ____.
also unconstitutional
Geographic scope of search incident to lawful arrest
The person and the areas within the person’s
wingspan.
The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search: (Gant rule)
- The arrestee is unsecured and still may gain access to the interior of the vehicle; or
- The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle (they can find other things in that process and that’s ok = look ex ante)
In assessing the validity of a search incident to arrest involving things that did not exist when the Fourth Amendment was adopted (for
example, cell phones, blood alcohol tests), the court will balance ____
the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legitimate governmental interests.
Contemporaneous with an arrest for intoxicated driving, police officers may administer a warrantless ____ to determine the arrestee’s alcohol levels but may not administer a warrantless
____
breath test; blood test.
Violation of an implied consent law (that
is, a law providing that by driving on the roads a driver impliedly consents to a blood test if stopped for intoxicated driving) can be punished ____
civilly (for example, suspension of license) but not criminally.
Police officers my examine the ____ of a person’s cell phone upon arrest. However, officers may not examine the ____ without a warrant since it cannot be used as a weapon.
physical attributes; data on a cell phone
At the police station, the police may make an inventory search of ____. Similarly, the police may make an inventory search of an ___ vehicle.
the arrestee’s belongings pursuant to established department procedure; impounded (including containers in cars
–> and that can be used against you!
Automobile Exception
If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.
If a warrantless search of a vehicle is valid, the police may ____ and search it later. However, if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may ____
tow the vehicle to the station; not search the vehicle without a warrant.
If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place _____.
without a warrant
The search of an automobile may extend to packages belonging to ____.
a passenger (it is not limited to the driver’s belongings)
If the police have probable cause only to search a container in a vehicle (for example, luggage recently placed in the trunk), they may search ____
only the container, not other parts of the vehicle.
The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after ____ but the probable cause must arise before anything or anybody is ____
the car is stopped; searched.
Under the plain view exception the 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 is, it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime
If while executing a search warrant for a handgun, the officer opens a small drawer where the gun could be and sees heroin, the heroin is admissible since it was in plain view of an officer who had a right to look there. This is because the officer ___
legitimately on the premises and legitimately allowed to look there
A warrantless search is valid if the police have a ____ consent.
voluntary
_____ is not a prerequisite to establishing a voluntary consent
Knowledge of the right to withhold consent
The scope of the search that was voluntarily consented to may be limited by ____, but generally extends to all areas to which _____.
the scope of the consent; a reasonable person under the circumstances would believe it extends
Any person with an ____ may consent to a search, and any evidence found may be used against the other owners or occupants.
apparent equal right to use or occupy the property
An occupant cannot give valid consent to a search when ____ and the search is directed against the co-occupant.
a co-occupant is present and objects to the search
If a co-occupant has objected to a search and is
removed for a reason ____ (for example, a lawful arrest), the police may act on consent of the remaining occupant, even if ____
unrelated to the refusal; the removed co-occupant had refused consent.
A homeowner parent can certainly consent to a search of the home’s kitchen, and probably to a search of their son’s (even if he is an adult) room unless the facts strongly indicate that ____
the parent does not have a right to go in the room (for example, always locked, only defendant
has key, etc.).
A ___ is not an arrest, and thus an officer
need not have probable cause (but they would need reasonable suspicion)
stop
The scope of the Terry frisk is generally limited to a patdown of ___, unless the officer has specific information that ____
outer clothing; a weapon is hidden in a particular area of the suspect’s clothing
During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its ____ is a ____, and such items are admissible as evidence.
“plain feel,” (CAN’T MANIPULATE); weapon or contraband
If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:
(1) conduct a frisk of the suspected person, and
(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed.
Evanescent evidence is evidence that ____
might disappear quickly if the police took the time to get a warrant.
Police in ___ of a fleeing felon may make a warrantless search and seizure and may even ____
hot pursuit; pursue the suspect into a private dwelling
However, if the fleeing person is suspected of a ____, their flight does not always justify a warrantless entry into a home.
misdemeanor
If the police are not within ____ behind the
fleeing felon, it is not a hot pursuit that falls under the exception.
15 minutes
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.
ADMINISTRATIVE INSPECTIONS AND SEARCHES must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient than for other searches: A showing of ____
a general and neutral enforcement plan will justify issuance of a warrant.
The following warrantless administrative searches have been upheld:
- Administrative searches to seize spoiled or contaminated food
- Administrative searches of a business within a highly regulated industry
- Inventory searches of arrestees or their vehicles pursuant to established department procedure
- Searches—including suspicionless strip searches—of prisoners
before being admitted into the general prison population, even
of persons arrested for minor crimes - Searches of airline passengers prior to boarding
- Searches of parolees and their homes—even without reasonable grounds for the search, at least as long as there is a statute authorizing such
searches - Searches of government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct
- Drug tests of railroad employees involved in an accident
- Drug tests of persons seeking customs employment in positions connected to drug interdiction
- Drug tests of public school students who participate in extracurricular activities
A warrant or probable cause is not required for public school officials to search ____; only ____ for the search are necessary.
public school students or their possessions; reasonable grounds
A school search will be held to be reasonable only if:
- It offers a moderate chance of finding evidence of wrongdoing
- The measures adopted to carry out the search 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 nature of the infraction
The Fourth Amendment does not apply to searches and seizures by United States officials in ___ and involving an alien, at least where the alien ____
foreign countries; does not have a substantial connection to the United States.
Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at ____, due to national sovereignty interests.
the U.S. border
Roving patrols inside the U.S. border may
stop a vehicle for questioning of occupants if an officer reasonably suspects that ____. Border officials may ____inside the border for questioning of occupants and may disassemble the vehicle, even without ____
the vehicle contains undocumented aliens; stop a vehicle at a fixed checkpoint; reasonable suspicion
Permissible border searches include opening of international mail when postal authorities have ____.
reasonable cause to suspect that the mail contains contraband
The Immigration Services Division may do a ___ in a factory to determine citizenship of each employee.
“factory survey” of the work force
Even illegally obtained evidence (that is, evidence
obtained in violation of the Fourth Amendment) may be used in a ___ deportation hearing.
civil
Officials with “reasonable suspicion” that a traveler is smuggling contraband in their stomach may ____
detain the traveler.
Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes ____
a search under the Fourth Amendment.
A valid warrant authorizing a wiretap may be
issued if
(1) there is showing of probable cause,
(2) the suspected persons involved in the conversations to be overheard are named,
(3) the warrant describes with particularity the conversations that can be overheard,
(4) the wiretap is limited to a short period of time,
(5) the wiretap is terminated when the desired information has been
obtained, and
(6) return is made to the court, showing what conversations have been intercepted
The Unreliable Ear Rule
A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation oris an informer wired for sound or taping the conversation.
The Uninvited Ear Rule
A speaker has no Fourth Amendment claim if they make no attempt to keep a conversation private.
Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute ____
judicial approval is required before a pen
register may be used
Evidence obtained in a manner that ____—in other words, a manner that offends a “sense of justice”—is inadmissible under the Due Process Clause.
shocks the conscience
If a crime is induced by official actions that ____, any conviction stemming from those actions is unconstitutional.
shock the conscience
The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the ____ Amendments.
Fourth, Fifth, Sixth, and Fourteenth
For a self-incriminating statement to be admissible under the Due Process Clause, it must be ___, as determined by the totality of the circumstances. A statement will be not meet this requirement only if ____
voluntary; there is some official compulsion (for example, a confession is not involuntary merely because it is a product of mental illness).
If an involuntary confession is admitted into evidence, the____ test applies.
harmless error ( this means the conviction need not be overturned if there is other overwhelming evidence of guilt)
The Sixth Amendment guarantees the right to the assistance of counsel in ____, which include all critical stages of a prosecution after ____
all criminal proceedings; judicial proceedings have begun
The sixth amendment prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after ____ unless the defendant has waived their right to counsel.
the defendant has been charged
A defendant who is arrested but not yet
charged does not have a ___ Amendment right to counsel but does have a ____ Amendment right to counsel
Sixth; Fifth (under Miranda)
A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for them by the state if the defendant is indigent, at the following stages:
- Post-indictment interrogation, whether or not custodial
- Preliminary hearings to determine probable cause to prosecute
- Arraignment
- Post-charge lineups
- Guilty plea and sentencing
- Felony trials
- Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
- Overnight recesses during trial
- Appeals as a matter of right
- Appeals of guilty pleas
Stages at which 6A right to counsel doesn’t apply
- Blood sampling
- Taking of handwriting or voice exemplars
- Precharge or investigative lineups
- Photo identifications
- Preliminary hearings to determine probable cause to detain
- Brief recesses during the defendant’s testimony at trial
- Discretionary appeals
- Parole and probation revocation proceedings
- Post-conviction proceedings
The Sixth Amendment is ___. Thus, even though a
defendant’s Sixth Amendment rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding ____ without violating the Sixth Amendment right to counsel
offense specific; unrelated, uncharged offenses
-> Although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda
Two offenses will be considered different for 6A questioning if each requires proof of ____ that the other crime does not require.
an additional element
The Sixth Amendment right to counsel may be waived. The waiver must be____. However,
knowing and voluntary;
Waiver of 6A right to counsel does not necessarily require ____, at least if ____
the presence of counsel; counsel has not actually been requested by the defendant but rather was appointed by the court.
At nontrial proceedings (such as post-indictment interrogations), the ____ rule applies to deprivations of counsel.
Of the defendant was entitled to a lawyer at trial, the failure to provide counsel results in ____
harmless error; automatic reversal of the conviction (even without a showing of specific unfairness in the proceedings)
____ at trial also results in automatic reversal under the 6A.
Erroneous disqualification of privately retained counsel
A statement obtained in violation of a defendant’s Sixth Amendment right to counsel, while not admissible in the prosecution’s case-in-chief, may be used to ____
impeach the defendant’s contrary trial testimony.
Miranda warnings are required when a suspect is ____
in custodial interrogation.
For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that:
- The person has the right to remain silent
- Anything the person says can be used against them in court
- The person has the right to presence of an attorney; and
- If the person cannot afford an attorney, one will be appointed for them if they so desire
-> Note that the warnings need not be verbatim so long as the substance of the warnings is conveyed.
Despite the fact that the Miranda warnings mention a right to counsel, the failure to give the warnings violates a defendant’s Fifth Amendment right to be ____, not their Sixth Amendment right to counsel.
free from compelled self-incrimination
Anyone in the custody of the government and accused of a crime must be given Miranda warnings ____ to interrogation by the police.
prior
Miranda warnings are necessary only if the detainee knows ____
that they are being interrogated by a government agent
-> The warnings are not necessary when the detainee is being interrogated by an informant whom the defendant does not know is working for
the police.
The Miranda requirements do not apply to an ____ grand jury, even if the witness was compelled by subpoena to be there.
uncharged witness
Determining whether custody exists is a two-step process:
1 - The first step (sometimes called the “freedom of movement test”) requires the court to determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave.
-> TOC test
2 - If yes, the next step considers “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.
-> the more a setting resembles a traditional arrest (that is, the more constrained the suspect feels), the more likely the Court will consider it to be custody.
“Interrogation” includes ____
any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.
Miranda warnings are not required before ____ are made by a detainee.
spontaneous statements
Note that _____ do not constitute interrogation.
routine booking questions
After receiving Miranda warnings, a detainee has several options:
do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.
If the detainee does not respond at all to Miranda warnings, the Court will not presume ____. Therefore, the police may _____
a waiver, that the detainee has asserted a right to remain silent or to consult with an attorney
continue to question the detainee.
The detainee may waive their rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was _____.
knowing and voluntary (TOC test)
It appears that if the government can show that the detainee received Miranda warnings and then ____, that is probably sufficient for waiver.
chose to answer questions
To be effective, the detainee’s indication that they wish to remain silent must be ____
explicit, unambiguous, and unequivocal
If the detainee indicates that they wish to remain silent, the police must ___ this request by not badgering the detainee.
scrupulously honor
In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning after the right to silence was invoked when the police ___
waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning.
If the detainee ____ indicates that they wish to speak to counsel, ____ must cease until counsel has been provided unless the detainee (with two exceptions below)
unambiguously; all questioning
Exceptions to questions without counsel when right has been unambiguously invoked under the 5A
(1) then waives their right to counsel (for example, by reinitiating questioning) or
(2) is released from the custodial interrogation back to their normal life and 14 days have passed since release
Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally ____ the right to counsel.
does not satisfy (counsel must be present during the interrogation unless the detainee has waived the right).
If the detainee indicates that they wish to remain
silent, the police probably may ____. If the detainee requests counsel, the police may ____
re-question them about a different crime after a break if fresh warnings are administered
not resume interrogating the detainee until counsel is provided or the detainee initiates the questioning. (or 14 days pass after relase)
Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. With exeptions for:
- Use of Confession for Impeachment
- Warnings After Questioning and Confession if unplanned/inadvertent and subsequent confession made
- Non-testimonial Fruits of an Unwarned Confession (where non-purposeful)
Statements obtained in violation of the Miranda rules may be used to ____ trial testimony, but may not be used as ____.
impeach the defendant’s; evidence of guilt.
If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession
will be inadmissible if the “question first, warn later” nature of the questioning was ____
intentional
In the “question first, [Miranda] warn later” situation, a subsequent valid confession may be admissible if ____
the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.
