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Criminal Law > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

Warrant Exceptions (Overview)

A

Exigent Circumstances
Search Incident to Arrest
Administrative Searches
Cars/Automobiles
Plain View
WireTapping
Terry Stops

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1
Q

4A Analysis Overview

A
  1. Is there government conduct
  2. is there standing (reasonable expectation of privacy under totality of circumstances)
  3. is there a valid warrant (PC&P)
  4. is no valid warrant, is there an exception
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2
Q

Is there 4A Standing?

A

Is there a reasonable expectation of privacy under the totality - answer is yes if (1) right of possession (2) person’s home (3) overnight guest

if owner property seized, then only standing if reasonable expectation of privacy in the item or area searched

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3
Q

Valid Warrant Requirements

A

Probably Cause: to believe that seizable evidence found. if based on informant, need reliability and credibility but don’t need ID
Particularity: precise on its face regarding places to be searched and things to be seized

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4
Q

How to Execute a Warrant

A

only the police, no 3rd parties unless they’re there to ID stolen property
Knock and Announce
Contraband search - detain during search but can’t search the person unless named in the warrant

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5
Q

Search Incident to Arrest - General

A

Police search the arrestee
Protective sweep
Contemporaneous time and place as the arrest
If the arrest is constitutional, so is the SITA
Wingspan search

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6
Q

Search Incident to Arrest - Automobiles

A

SITA from Car: only allowed to search if (1) arrestee is unsecured OR (2) police reasoanbly believe evidence of the arrested crime will be found
GANT: passenger compartment only, NOT the trunk

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7
Q

Search Incident to Arrest - Technology

A

TECHNOLOGY SEARCH: balancing interests
Breathalyzer ok, not blood draw
Cell phone: no searching data, yes searching its physical attributes

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8
Q

Automobile Exception

A

PC fruits → can search entire vehicle and teh containers in the vehicle w PC
If car on curtilage, need warrant
If car itself is contraband, no warrant required
Can search passenger belongings
If PC to search container, only search the container, not other parts of the car

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9
Q

Plain View

A

Officer is legit on the premises
Discovers evidence
Sees evidence in plain view
Immediately apparent PC

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10
Q

Consent

A

Voluntary consent (don’t ned knowledge that you can deny)
Scope limited by scope of consent
Authority: apparent equal right, but physical present occupant objecting to search, then no search; BUT if occupant removed for unrelated reason like arrest, present remaining occupant consent governs

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11
Q

Terry Stops

A

Pat down outer clothing (unless specific info gun/weapon in pants) - need articulable and reasonable suspicion
Protective frisk if armed and dangerous
Plain feel - weapon or contraband
No manipulating the item to ascertain its character
Can lead to PC
Autostop - armed? → search the person and vehicle where the weapon could be

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12
Q

Exigent Circumstances (General Categories)

A

Evanescent Evidence - fleeting
Hot Pursuit
Caretaking - emergency health/safety of the public

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13
Q

Hot Pursuit

A

Fleeing FELON (not misdemeanor) - even into a private dwelling
More than 15 min means not hot pursuit
Enter any home and can seize any evidence they happen to see (bc plain view)

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14
Q

Administrative Exceptions (General)

A
  • Airline passengers
  • Drug testing school kids for any extra curricular
  • Public school search: need - reasonable grounds
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15
Q

Public School Search

A

Need - reasonable grounds
Search is reasonable if:
1. Moderate chance of finding
2. Measures reasonably related
3. AND Not excessive intrusion in light of age sex and nature of the infraction

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16
Q

WireTapping

A

generally need a warrant except
1. Assumes the risk of unreliable ear (buddy might be an informant)
2. No attempt to keep the convo private (uninvited ear)

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17
Q

Stages with 6A Right to Counsel

A

general: right to counsel at all stages of prosecution after judicial process begins

Post indictment interrogation
Preliminary hearing
Arraignment
Post charge lineup
pleas/sentencing
Felony
Misdemeanor when imprisonment imposed
Overnight recess
Appeals matter-of-right
Appeal guilty plea

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18
Q

Stages with NO 6A Right to Counsel

A

Blood samples
handwriting/voice samples
Precharge or investigative lineups
Photo IDs
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

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19
Q

Admissibility of Confession

A

must be voluntary under the totality of the circumstances - harmless error, no overturning if lots of evidence of guilt

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20
Q

6A Rule

A

Application: right to counsel at all stages of prosecution after judicial process begins
Offense Specific: D questioned unrelated charges with no attorney okay
Waiver: must be knowing and voluntary, counsel presence not required to waive
Remedy for Violation: nontrial error = harmless error; trial error = auto conviction reversal
Impeachment: statements in 6A violation are only admissible for impeachment if counter to trial testimony

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21
Q

5A Miranda

A

D entitled to Miranda warning when in custodial interrogation. D not entitlted to Miranda warning if he doesn’t know he’s being interrogated by the govenrment

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22
Q

Miranda Custodial Interrogatio

A

Custody: freedom of movement and whether the environment presents the same inherently coercive pressures
Interrogation: any words/conduct by police that they should know would elicit incriminating statements - not required before spontaneous statements and not required for routine booking questions

23
Q

Waiving Miranda

A

Do Nothing: no presuming waiver, and no presuming assertion of right to silence
Waive: knowingly/voluntarily under totality circumstances

24
Q

Invoking Miranda

A

Silence: unambiguous, police scrupulous honor request; can redo qs if (1) time and (2) re-read (3) new crime

25
Q

Miranda Violation

A

inadmissible under exclusionary rule; but can use to impeach (not to establish guilty)
nontestimonial evidence suppressed if failure to mirandize is purposeful

26
Q

Miranda Public Safety Exception

A

reasonably prompted by public safety

27
Q

Rights for Pre-Trial ID

A

6A right for post-indictment lineup, not a photo ID
Due process if D unnecessarily suggestive and substantial likelihood theyre mis ID

REMEDY: exclude in court ID, EXCEPT if independent source, i.e. eyewitness

Government bears the burden (1) counselor present (2) D waived and/or (3) independent source

28
Q

Exclusionary Rule

A

Evidence unconstitutionally obtained excluded at trial; fruit = excluded if lead to more evidence UNLESS:

  1. Miranda violations not purposeful
  2. Independent source
  3. Attenuation
  4. Inevitable discovery
  5. knock/announce violation
29
Q

Evidence From illegal search is

A

excluded, but can be used by prosecution to impeach defendant statements

30
Q

Breaking the Chain

A

independent source
intervening free will of D
inevitable discovery

31
Q

Limit on Exclusionary rule

A
  1. Grand juries/parole/civil
  2. Good faith reliance EXCEPT: (1) so lacking in PC that no one would believe (2) lacking in particularity (3) lie/mislead magistrate (4) magistrate is biased and no neutrality
  3. Can use to impeach credibility
32
Q

6A right to Speedy Trial assessed by

A

LRWP
Length of delay
reason for delay
whether D asserted thei right
prejudice to D

33
Q

when does speedy trial right attach

A

when D arrested or charged

34
Q

What is the remedy for a 6A violation

A

dismissal

35
Q

Insanity

A

mental condition at time of the offense

36
Q

Competency

A

mental condition at the time now - can try again when D regains competency to stand trial

37
Q

Brady Violation

A

Failure to disclose, reverse if D can prove (1) willful or inadvertent (2) evidence favorable bc imp/exculpatory (3) prejudice resulted

38
Q

Confrontation Clause

A

right to face accuser, but don’t feed literal face to face (i.e. insulating children witness or removing disruptive Ds)

39
Q

CoDefendant Confessions

A

2 people tried together and 1 gives confession implicating the other, confrontation clause precludes confession even if it interlocks w D own confession.
The co D may be used if (1) all portions referencing to D eliminated (2) confession D takes stand w cross OR (3) confession entered to rebut D claim of coercion

40
Q

Prior Testimonial Statements of unavilable witnesses

A

allowed if declarant unavilable and D opportunity to cross at the time of the statement

41
Q

Trial By Jury

A

only for serious offenses (imp. More than 6 months)
At least 6 jurors and must be unanimous
Numerically significant, no right to cross section at empaneled jury, only in who is originally called
No peremptory hchallegne for race/sex
Challenge for good cause: view will prevent or substantiall impact - racial prejudice q if reace bound up in case or interracial capital crime

42
Q

Right to Counsel at Trial

A

nontrial denial = harmless error
Waiver: knowing/intelligent and judge competency for pro se
No pro se allowed on appeal

43
Q

Effective Assistance Counsel

A

Effective Assistance of Counsel: presumed (1) deficient (not just bc inexperienced) and (2) but-for def

44
Q

Right to unbiased judge

A

if actual malice against D or financial interests, then not unbiased

45
Q

Pleas by D

A

Req voluntary/intelligent - on the record w D
Understand nature of charge (max and minimum)
Attorney and judge can both inform D of these
Plead anew

46
Q

Plea Bargain

A

not enforced against the judge

47
Q

Double Jeopardy: Attachment

A

Attached when (1) empaneled/sworn jury or (2) bench first witness is sworn
Civil doesn’t mean jeopardy, juvenile IS jeopardy

48
Q

When does double jeopardy not attach

A

(1) hung jury
(2) necessity to abort original trial (heart attack)
(3) successful appeal of conviction unless grounds are insufficient evidence - no retrial for greater offense
(4) breach of plea bargain (refusing to testify)
(5) tried separately for multiple offenses

49
Q

What is double jeopardy

A

person may not be tried for the same offense once jeopardy has attached.

50
Q

When is it the same offense under double jeopardy

A

Same offense unless each crime requires proof of additional element that the other does not (even if overlapping facts to prove each)

51
Q

Attachment of jeopardy on greater offense…

A

bars retrial for lesser offenses.

52
Q

Attachment of jeopardy on lesser offenses….

A

bars retrial for a greater offense

53
Q

Double jeopardy exceptions

A
  1. new evidence
  2. effect of plea on related offense
  3. separate sovereigns
54
Q

Privilege against self incrimination

A

Anyone in any case where answer to question would incriminate THEM
Furnish link in chain to prosecure
Civil: assert privilege or lose it; criminal D - right not to take stand, otherwise must specifically invoke
Scope: testimonial/communicative → fact assertion/disco evidence; no physical evidence
Must compy w subpoena for documents
Violation when used against
No commenting on silence/failure to testify
Can comment if “not allowed to explain his side of the story” AND/OR silence before miranda
Violation = harmless error test
Immunity → compelled if adequate immunity - however, inepednent source
Can be used for perjury

Criminal Law (3 decks)

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