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UBE Bar Exam > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

What are the 2 exceptions to the rule that constitutional protections only apply to govt. actions?

A

1) when a private person is acting as a govt. agent

2) defense attorneys (both private and public) are treated as govt. actors for 6th Amendment assistance of counsel analysis

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1
Q

what is a seizure?

A

when a cop, through use of physical contact or show of authority, intentionally restrains somebody’s freedom of movement

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2
Q

how do you test whether a seizure has occurred?

A

Depends on whether a reasonable innocent person would feel free to disregard the cop and leave

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3
Q

What is the basis for a stop and frisk/Terry stop?

A

when the cop has a reasonable suspicion based on articulable facts to believe the suspect is or is about to engage in criminal conduct

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4
Q

What can an officer search for in a Terry stop?

A

They can pat you down for weapons, but they can’t frisk and search you for evidence

If the pat down reveal objects whose shapes make their identity obvious (weapon, contraband, etc.), the cop can seize them

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5
Q

How does the legality of a Terry stop affect the admissibility of the evidence at trial?

A

If the basis for the stop was illegal but the officer develops a valid basis for an arrest during the frisking, the evidence found is still admissible at trial.

If the stop was unlawful and a valid basis for an arrest doesn’t develop, then the evidence is inadmissible at trial.

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6
Q

what is the basis for a vali traffic stop?

A

cop must have reasonable suspicion.

Once the stop occurs, the cop can search an occupant for weapons if they have a reasonable basis to believe the occupant is armed

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7
Q

what is needed for a valid basis to arrest?

A

Cop must have probable cause to believe that the arrestee committed a crime

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8
Q

What are the elements for a valid arrest warrant?

A

1) issued by a detached and neutral magistrate/judge
2) must be probable cause to believe the named arrestee committed a crime
3) warrant must identify the arrestee and offense they’re being arrested for

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9
Q

When can police arrest someone in their dwelling without an arrest warrant?

A

1) Exigent Circumstances (felony hot pursuit, danger to others, etc.)
2) Consent

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10
Q

Can an arrest warrant give police a valid basis to enter the arrestee’s home?

A

Yes, they can enter the arrestee’s home for the purpose of arresting him/her.

But they can’t continue to search the arrestee’s home, unless one of the warrant exceptions applies

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11
Q

What are the 2 bases for allowing a search incident to arrest?

A

1) To prevent the destruction and/or concealment of evidence

2) To protect cops from weapons the arrestee could have on them

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12
Q

When can police warrantlessly arrest someone?

A

1) If they personally witness the arrestee commit a crime
2) If it’s a felony, if the cop has probable cause to believe the arrestee committed the felony

(if it’s a misdemeanor, the cop needs to have actually witnessed it or have an arrest warrant)

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13
Q

When can a cop search a person incident to arrest?

A

If the arrest is legal, the cop can search the arrestee and the immediate area around the arrestee (arrestee’s wingspan).

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14
Q

What are the specific rules for a search incident to arrest in a vehicle?

A

If the arrestee is still near the car and unrestrained, the cop, after initiating a lawful arrest, can search the passenger compartment of the car

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15
Q

Do police need a warrant to search a person’s cell phone incident to an arrest?

A

Yes. Police can seize your cell phone incident to arrest, but they can’t unlock and search through it without a search warrant or consent

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16
Q

what places do you have a reasonable expectation of privacy?

A

1) your home
2) your hotel room
3) your office
4) your backyard/curtilage
5) your luggage

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17
Q

For what kinds of areas do you not have a reasonable expectation of privacy?

A

1) abandoned property
2) open fields
3) public streets
4) garbage cans left out on the street
5) bank records
6) things left in plain view
7) inmate’s cell
8) smells emanating from yourself or your property

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18
Q

What are the requirements for getting a search warrant?

A

1) issued by a neutral magistrate
2) probable cause to believe the items sought are evidence of a crime, fruits of a crimes, or instrumentalities of a crime
3) warrant must describe the property and placed to be searched with some particularity

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19
Q

What is the fruit of the poisonous tree doctrine?

A

If evidence is obtained during an illegal search, that evidence is excluded from the prosecutor’s case

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20
Q

What are the exceptions to the warrant requirement for a valid search?

A

1) automobile exception
2) search incident to arrest
3) consent
4) exigent circumstances
5) stop and frisk
6) plain view
7) evidence obtained from administrative searches (health inspections of a restaurant, TSA searches, etc.)

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21
Q

How does a search incident to arrest work when the arrestee is being arrested in their own home?

A

The police can do a protective sweep of the immediate area surrounding the arrestee for weapons or evidence

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22
Q

What is the automobile exception to the warrant requirement?

A

If police have probable cause to believe that a vehicle contains contraband, they can search the parts of the vehicle where the contraband could be located

this excludes any area in the car where the contraband couldn’t reasonably be located (ex. looking for an illegal bazooka inside the glovebox)

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23
Q

If multiple people in a dwelling disagree about giving an officer consent to search the home, how does that affect the occupants?

A

The police cannot use any evidence/contraband they find against a person who affirmatively refuses to give consent to search the home

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24
Q

what is the definition of a “search”?

A

A government intrusion into an area where someone has a reasonable expectation of privacy

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25
Q

what is the precedent set by Miranda v. Arizona?

A

statements made as the result of a custodial interrogation are inadmissible unless they are accompanied by safeguards, i.e., the Miranda warnings

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26
Q

When is an interrogation “custodial”?

A

The person being questioned has either been arrested or is otherwise not free to leave

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27
Q

How can a person invoke their right to remain silent?

A

They must affirmatively assert the right. Once they do, the police must stop interrogating them, but they can come back after a substantial amount of time has passed and resume the questioning

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28
Q

What makes a questioning an “interrogation” for Miranda purposes?

A

when the official engages conduct and/or questioning that a police officer would or should know would elicit a response.

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29
Q

How can a person invoke their right to counsel?

A

They must affirmatively invoke the right (say “I want an attorney).

If someone invokes the right to counsel, the cops must stop the interrogation and cannot re-initiate the interrogation unless the suspect initiates conversation again or the lawyer is present.

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30
Q

what is the public safety exception to the Miranda requirements?

A

Police don’t have to Mirandize a suspect before questioning if public safety is at risk (ex. ticking time bomb)

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31
Q

Are statements obtained in violation of Miranda admissible?

A

They aren’t admissible as evidence in the prosecution’s case, although they can be used for impeaching the defendant

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32
Q

What is the scope of the 5th Amendment right against self-incrimination?

A

It only applies to individuals, so unions and corporations can’t invoke it.

It also only applies to testimonial evidence, so it doesn’t apply to physical evidence like DNA samples or handwriting samples

33
Q

How does receiving prosecutorial immunity affect the 5th Amendment right against self-incrimination

A

If someone gets immunity from prosecution for their statements, they can’t keep invoking their right against self-incrimination

34
Q

Must police inform you that your lawyer is trying to reach you?

A

No. Police do not have to tell you that your lawyer is trying to contact you, even if you’ve invoked your right to counsel

35
Q

How does the 6th Amendment right to counsel apply to police line-ups?

A

If the line-up is done before the indictment, the defendant has no right for counsel to be there.

If the line-up is done after the indictment, the defendant does have a right for counsel to be present

35
Q

When does the 6th Amendment right to counsel apply?

A

It applies as soon as someone has been officially charged with a crime that’s a felony or a misdemeanor in which the defendant is SENTENCED to jail time.

It applies to all critical stages of a person’s criminal proceedings (prelim hearing, evidentiary hearings, etc.)

36
Q

How does the 6th Amendment right to counsel apply to victims identifying a suspect via photo arrays?

A

Neither the defendant nor their lawyer have a right to be present when a victim makes identifications via a photo array.

However, the police must turn over the array to the defendant after the victim is done with it.

37
Q

When is a police line-up admissible as evidence?

A

A line-up where the victim picked the defendant out of the line-up is inadmissible if it can be shown that the line-up was impermissibly suggestive or that the line-up was tainted.

If this is shown, the prosecutor must show via clear and convincing evidence that the victim would’ve identified the defendant even without the line-up

38
Q

what is the exclusionary rule?

A

A rule stating that evidence obtained in violation of a defendant’s 4th, 5th, or 6th Amendment rights is inadmissible at the defendant’s trial

39
Q

What are the exceptions to the exclusionary rule?

A

1) knock and announce exception: if police fail to knock and announce before serving a warrant, evidence they is still admissible

2) Inevitable discovery: If the evidence would have been discovered anyway through lawful means, it’ll be admissible

3) Independent source: if the police discover the evidence via an independent source, it’s admissible (ex. private citizen tells police about the evidence)

4) Attenuation in the causal chain: intervening events and the passage of time can remove the taint
of the unconstitutional conduct.

5) Good faith: officers violate an individual’s rights but have good-faith reason to believe
their conduct constitutional, such as relying on a preexisting law that was later declared unconstitutional, or a warrant that is later found defective

40
Q

Can police initiate suspicion-less traffic stops, such as checkpoints?

A

if the checkpoint stop is based on neutral, articulable standards and its purpose is closely related to an fissue affecting automobiles (ex. drunk driving).

41
Q

For a death penalty statute to be constitutional, what are the 3 requirements it must meet?

A

The statutory scheme must provide:
(i) Clear and objective standards;
(ii) Specific and detailed guidance; and
(iii) An opportunity for rational review of the process.

42
Q

Who cannot be subject to the death penalty, no matter what?

A

1) people who were under the age of 18 when they committed the crime
2) defendants who are insane at the time of execution
3) defendants who have a mental impairment/handicap

43
Q

What safeguards must the state meet before they execute someone under the death penalty?

A

1) must be a bifurcated trial process
2) defendant must have the opportunity to present mitigating evidence
3) the judicial process must sufficiently narrow the
class of death-sentence eligible offenses.

44
Q

What is the Apprendi Doctrine in relation to the 6th Amendment?

A

A rule that judges cannot enhance a criminal sentence beyond the statutory maximums based on facts other than those decided by the jury (i.e., judge must make their sentencing decision based only on facts considered and decided by the jury)

45
Q

what is the exception to the Apprendi Doctrine?

A

A judge can take notice of and enhance a sentence based on the defendant’s prior criminal convictions, even if the jury never found those convictions

46
Q

What are the 2 kinds of mistrial?

A

1) manifest necessity mistrial, which does allow for the defendant to be re-tried
2) no manifest necessity mistrial, which prohibits the defendant from being re-tried

47
Q

what is the knock and announce rule?

A

Police generally must knock and announce their presence when serving a search or arrest warrant at someone’s house.

Violating this rule doesn’t trigger the exclusionary rule

48
Q

what is the plain error doctrine?

A

A defendant who has failed to preserve a claim of error in district court is still entitled to appellate relief when:

(i) The district court committed error under the law in effect at the time the appeal is heard;
(ii) The error is obvious under that law; and
(iii) The error affected the defendant’s substantial rights.

49
Q

What must a defendant prove to have their case reversed for ineffective assistance of counsel?

A

(i) Counsel’s representation fell below an objective standard of reasonableness; and
(ii) Counsel’s deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different.

50
Q

when can an attorney remove a potential juror for cause?

A

if the juror isn’t able to consider the case fairly and impartially

51
Q

Can you use a preemptory challenge to remove any potential juror for any reason?

A

Yes, unless you’re removing them because of their race or sex

52
Q

What are the 5 situations where the good faith exception won’t apply?

A

(i) No reasonable officer would rely on the affidavit underlying the warrant;
(ii) The warrant is defective on its face;
(iii) The warrant was obtained by fraud;
(iv) The magistrate has “wholly abandoned his judicial role”; or
(v) The warrant was improperly executed.

53
Q

What are the 3 exceptions to the Mirana requirements?

A

1) Public safety
2) Routine booking questions
3) Statements made to undercover police

54
Q

What must a court find for it to accept a defendant’s guilty plea?

A

The judge must determine that the plea is both intelligent and voluntary.

Voluntary: The plea did not result from force or improper threats or from promises other than those contained in the plea agreement.

Intelligent: The defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea, and (iii) the rights that the defendant is waiving.

55
Q

What is the Blockburger test?

A

A test to see whether someone’s 6th Amendment right against double jeopardy has been violated.

Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not.

Crime #1 is A+B. Crime #2 is A+C. One requires an element that the other doesn’t. It therefore doesn’t violate double jeopardy. However, if Crime #1 is A+B, and Crime #2 is A+B+C, then that would violate double jeopardy since Crime #1 should merge into Crime #2 as a lesser included.

56
Q

What is the proper remedy if a defendant isn’t informed of their right to counsel, and they enter a guilty plea?

A

That plea can be withdrawn by the defendant. If it is withdrawn, then it’s inadmissible as evidence in the case.

57
Q

When does a person have a right to a jury trial?

A

If it’s a criminal charge that carries a possible punishment of 6 months imprisonment

58
Q

What are the 3 protections given by the double jeopardy clause?

A

(i) Protection against a second prosecution for the same offense after acquittal;
(ii) Protection against a second prosecution for the same offense after conviction; and
(iii) Protection against multiple punishments for the same offense.

59
Q

What is transactional immunity

A

“Transactional” (i.e., “blanket” or “total”) immunity fully protects a witness from future prosecution for crimes related to her testimony.

60
Q

what is use and derivative use immunity?

A

“Use and derivative-use” immunity protects a witness in a criminal case from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution

This does not stop a later civil suit from being brought against the witness using the witness’s testimony

61
Q

Do police ever have to re-Mirandize someone?

A

Yes, if the interrogation is stopped for a long duration and then resumed, the suspect should receive fresh Miranda warnings

62
Q

when does the right against double jeopardy attach to a defendant?

A

in a jury trial, when the jury is sworn in. In a bench trial, when the first witness is sworn in.

This means that any time prior to those occurrences, the prosecution can drop and re-initiate the charges, and it won’t violate double jeopardy

63
Q

How does the 6th Amendment right to counsel differ from the 5th Amendment right to counsel?

A

The 5th Amendment right to counsel relates to counsel for custodial interrogations. The 6th Amendment right to counsel gives a criminal defendant the assistance of defense counsel for their case.

The 5th Amendment right doesn’t attach unless you affirmatively invoke it at the interrogation (ex. I want to speak to my attorney). The 6th Amendment right attaches automatically once there has been an indictment,
information, or other formal charges

64
Q

What is the Batson Test for discriminatory preemptory challenges?

A

To prove that someone used their preemptory challenge to discriminate a juror on the basis of race or sex, these steps must be followed:

1) The moving party must establish a prima facie case of discrimination (e.g., the prosecution used peremptory challenges to strike only nonwhite jurors).

2) The party who exercised the peremptory challenge must then provide a neutral reason for the peremptory challenge (e.g., the strikes were based on age, not race).

3) If it does so, then the burden shifts back to the moving party to prove that the other party’s reason was pretextual (e.g., the prosecution struck a 21-year-old black man but not a 21-year-old white man).

65
Q

What 4 factors will a court look at when analyzing a speedy trial right violation?

A

1) length of the delay
2) reasons for the delay
3) risk of prejudice to the defendant caused by the delay
4) whether the defendant affirmatively asserted his right to a speedy trial

66
Q

What rights exist for a trial to be open to the public?

A

Generally, the public have a right to sit in on a trial and observe it, and a defendant has a right to keep their trial open to the public.

However, the trial can be made private if there’s a substantial likelihood of prejudicing the defendant by keeping it open (ex. defendant is on trial for child molestation.)

67
Q

What is the Crawford Doctrine?

A

A 6th Amendment Confrontation Clause rule, stating that if a statement is testimonial (i.e., made under circumstances which
would lead a reasonable person to believe that the statement would be used at a later trial), the 6th Amendment bars its admission if:

1) the statement’s declarant is unavailable; and
2) defendant had no prior opportunity to cross-examine the declarant

68
Q

What is the Bruton Doctrine?

A

A rule stating that a defendant’s own statements are always admissible against them, even if they invoke their right not to testify.

If there are co-defendants, a non-testifying co-defendant’s statements are inadmissible against the other defendant, because it violates the Confrontation Clause.

69
Q

What are the 4 duties of prosecutors?

A

1) Cannot knowingly present false evidence
2) Brady Doctrine relating to turning over all evidence to the defendant, especially favorable evidence
3) A prosecutor can’t make inappropriate comments about the defendant, including comments on a defendant invoking their right not to testify at their trial, or make unfair remarks about the defendant’s guilt or innocence to others (reporters or jury)
4) Prosecutor cannot contact the defendant outside the presence of their counsel

70
Q

What is the Brady Doctrine in relation to a prosecutor’s duties?

A

A rule stating that the prosecutor must give the defense all material, exculpatory (evidence favorable to the defense) evidence.

This rule includes 2 types of evidence:
1) evidence that tends to show that the defendant didn’t do the crime.
2) evidence that would allow the defense the impeach the credibility of the prosecution’s witness’s

71
Q

How does a grand jury differ from a typical criminal court proceeding?

A

In a grand jury, the defendant does not have a right to counsel, nor the right to testify. Grand juries can also consider illegally obtained evidence and hearsay.

Grand juries are also held privately, their decisions don’t have to be unanimous, and the prosecutor has no duty to present exculpatory evidence to the grand jury.

72
Q

What happens if the police coerce, threaten, or make false promises to induce a defendant into making a guilty plea and/or admission?

A

That plea and/or admission is inadmissible

73
Q

What is the presumptive rule about the availability of bail?

A

It’s presumed that bail is available unless the defendant poses a danger to the public or is a flight risk

74
Q

How can a defendant challenge the validity of a warrant that they think has false info?

A

defendant must establish by a preponderance of the evidence:
1) that the false information was knowingly, intentionally, or with reckless disregard for its truthfulness included by the affiant in the affidavit; and
2) that the information was necessary to a finding of probable cause by the magistrate.

75
Q

When is it not unconstitutional for a prospector to withhold favorable evidence from the defendant? (Brady rule)

A

If the nondisclosure of evidence does not cause prejudice against the defendant.

Prejudice is when there’s a reasonable probability that the defendant’s conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant

76
Q

what is a structural error?

A

an error that affects the entire framework of a criminal trial and renders the trial fundamentally unfair (ex. denying right to jury trial)

77
Q

If a trial court commits a structural error, what should an appeals court do?

A

Automatically reverse the defendant’s conviction

78
Q

what are some examples of structural errors that can render a criminal conviction automatically reversible?

A

1) denying a right to jury trial
2) denying right to counsel
3) discriminatory selection of jurors
4) defense attorney enters guilty plea over defendant’s objection
5) improper jury instruction on the burden of proof
6) excluding the defendant from the courtroom during trial

79
Q

Can someone invoke their 5th Amendment right against self-incrimination in a civil proceeding?

A

Yes, so long as their civil testimony could be used against them in a future criminal proceeding

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