Criminal Procedure

Question 1

What is the exclusionary rule?

Answer 1

The exclusionary rule will suppress evidence obtained in violation of a defendant’s rights under the (Fourth/Fifth/Sixth) Amendment(s), applicable to the states through the Fourteenth Amendment.

Question 2

When will evidence not be excluded as fruit of the poisonous true?

Answer 2

• “Isolated” negligence by law enforcement
• Knock and announce violations
• Witness’ in-court identification
• Inevitable discovery—would have discovered whether or not police acted unlawfully
• Independent source—discovered in part by source unrelated to tainted evidence
• Attenuation—amount of time/events breaks chain of causation from the tainted evidence
• Good-faith reliance—on facially valid warrant or law later struck down; objective standard

Question 3

What are the three requirements for a 4th Amendment violation?

Answer 3

• Gov’t conduct
• Reasonable expectatation of privacy
• Standing (did D have the expectation of privacy)

Question 4

What is the test for determining a seizure?

Answer 4

A reasonable innocent person does not feel free to decline the officer’s requests or end the encounter

Question 5

When is a Terry stop legal?

Answer 5

• Officer must have reasonable suspicion (RS) to investigate supported by articulable facts
• Detention must be brief and only long enough to verify or dispel suspicions
• For officer safety, the officer may also frisk for weapons if the officer believes D is armed

Question 6

When is a warrant required for arrest?

Answer 6

Arrests in a public place do not generally require a warrant
◦ If a crime was committed in the officer’s presence, no warrant is required
◦ If crime was committed outside officer’s presence, no warrant is required if a felony
Arrests at defendant’s home require a warrant
◦ Warrant must be issued by neutral magistrate and supported by probable cause
◦ Arrest at another’s home requires a warrant, consent, or exigent circumstances

Question 7

What is probable cause?

Answer 7

Knowledge of reasonably trustworthy facts and circumstances to believe the arrestee has committed a crime

Question 8

What are the requirements for a valid traffic stop?

Answer 8

Officer must have reasonable suspicion a law has been violated
* A valid but pretextual stop is okay; can have ulterior motive to investigate a crime
* Checkpoint stops
◦ At or near the border? Random search without reasonable suspicion is allowed
◦ Not at the border? Okay if conducted pursuant to a standard (not random) and the purpose is vehicle-related
* Driver and occupants can be ordered out of the vehicle during a lawful stop
◦ A frisk of the driver and/or passengers for weapons is permissible if the officer has reasonable suspicion to believe they are carrying a weapon
◦ A limited search of the passenger compartment for weapons is allowed (see Stop and Frisk)

Question 9

What is required for a warrant?

Answer 9

• Supported by probable cause;
• Issued by a detached and neutral magistrate; and
• IF SEARCH: Describes with particularity the place to be searched and items to be seized.

Question 10

What are the exceptions to the warrant requirement?

Answer 10

ESCAPES
* Exigent Circumstances
* Searches Incident (to Lawful Arrest)
* Consent
* Automobile
* Plain View
* Evidence from Admin Search
* Stop and Frisk

Question 11

What is necessary for a search incident to a lawful arrest?

Answer 11

• Scope includes immediate area (wingspan) where weapon might be hidden
  ◦ Search of digital information on cell phone okay only if exigent circumstances
  ◦ Vehicle search is okay if D unsecured and within reach of the passenger compartment, or if reasonable belief the vehicle has evidence of this offense
  ◦ After arrest, may do routine inventory search of D and of impounded vehicle

Question 12

When does the automobile exception apply?

Answer 12

◦ Must have PC to believe the vehicle contains evidence of crime
◦ Can search anywhere PC supports, including trunk and locked containers

Question 13

When does the plain view exception apply?

Answer 13

◦ The officer is lawfully on the premises
◦ The incriminating character of the item is immediately apparent
◦ The officer has lawful access to the item

Question 14

When do Miranda warnings have to be given?

Answer 14

• Custodial: formal arrest or whether a reasonable person would have believed he could leave (totality of the circumstances)
• Interrogation: words or conduct reasonably likely to elicit an incriminating response
• Volunteered/spontaneous statements (“blurting out”) are not the product of interrogation (but follow up questions to a spontaneous statement can be interrogation)
• Routine booking questions are not interrogation

Question 15

What are the exceptions to Miranda?

Answer 15

• Public safety—Miranda warnings not required when public safety at risk
• Routine booking questions do not invoke Miranda
• Undercover police—do not have to Mirandize a suspect who is unaware the interrogator is a police officer; officer posing as criminal to elicit confession is allowed

Question 16

What happens to statements taken in violation of Miranda?

Answer 16

1. Impeachment okay—if statement voluntary, can impeach credibility of D who testifies
2. Involuntary confessions—statements produced by coercion violate due process
   * If admitted into evidence, “harmless error” test applies; not automatically reversed
   * Harmless error: if the evidence had been excluded, would it change the outcome?

Question 17

When does the 6th Amendment right to counsel attach?

Answer 17

All critical stages of proceedings where D faces prospect of jail
Critical stage—hearings, post-indictment line-up or interrogation, and all of trial process; the right attaches automatically when formal judicial proceedings have begun
Not Critical stages: Pre-indictment, photo array at any time

Question 18

When does the 6th Amendment guarantee a right to a jury trial in a criminal case?

Answer 18

Chance of 6+ months in jail

Question 19

When does a lineup violate due process?

Answer 19

A lineup violates due process if it was impermissibly suggestive and there was a substantial likelihood of misidentification, making evidence not reliable.
BUT: In court ID still allowed if state shows independent reliability by clear and convincing evidence.

Question 20

When does 5th Amendment double jeopardy protection apply?

Answer 20

D is protected against a second criminal prosecution for the same offense after acquittal or conviction, and protected from multiple punishments for the same offense; does not apply to civil actions

Question 21

What are the requirements to show ineffective assistance of counsel?

Answer 21

• Fell below objective standard of reasonableness
• Actual prejudice
• Conflict can sometimes mean presumption of prejudice

Question 22

When does jeopardy attach?

Answer 22

Once jury is empaneled and sworn in, or, in bench trial after first witness is sworn in

Question 23

When can you convict someone of two crimes for the same offense?

Answer 23

• Each crime must require proof of an element that the other does not (Blockburger test)
• Offenses with different victims are treated as separate offenses
• Separate sovereign rule: If two different sovereigns have jurisdiction, each can try D for the same offense; can be tried by two states, or by the U.S. and a state
• Statutory scheme can authorize conviction of greater and lesser included offenses