Criminal Procedure

Question 1

What must a defendant show in order to attack the truthfulness of an affidavit supporting a facially valid search warrant?

Answer 1

The defendant must establish, by a preponderance of the evidence, that:
(i) The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with a reckless disregard for their truth; and
(ii) The false statements were necessary to the finding of probable cause.

Question 2

What is the plain-error doctrine?

Answer 2

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.

Question 3

What are the requirements of a valid search warrant?

Answer 3

A valid search warrant must be issued by a neutral and detached magistrate based on probable cause, must be supported by oath or affidavit, and must describe the places to be searched and the items to be seized.

Question 4

When is a warrantless search of a vehicle permitted as a search incident to a lawful arrest?

Answer 4

When law enforcement demonstrate either that:
(i) The arrestee is within reaching distance of the passenger compartment and may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee; or
(ii) That it is reasonable that evidence of the offense of arrest might be found in the vehicle

Question 5

Name the five situations where the good-faith exception to the exclusionary rule does not apply.

Answer 5

If:
(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.

Question 6

What are (1) transactional immunity, and (2) use and derivative use immunity?

Answer 6

(1) “Transactional (TOTAL) immunity fully protects a witness from future prosecution for crimes related to her testimony

(2) “Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness.

“Use and derivative-use” immunity is all that is constitutionally required to compel the testimony of a witness, and testimony encouraged by a promise of immunity is considered coerced and involuntary. Therefore, the testimony cannot be used as substantive evidence or for impeachment purposes.

Question 7

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

Answer 7

In the federal system, the Sixth Amendment provides the right to jury trials.
In states, the Fourteenth Amendment provides jury trials in criminal cases involving non-petty offenses (i.e., those that carry an authorized sentence of more than six months of imprisonment, regardless of the actual penalty imposed).

Question 8

May law enforcement randomly stop vehicles on public roadways?

Answer 8

Yes if Police have a REASONABLE INDIVIDUALIZED SUSPICION of a violation of the law, unless the stop is effected on the basis of neutral, articulable standards.

Question 9

What is the court required to find in order to accept a criminal defendant’s guilty plea?

Answer 9

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.

Question 10

When is a search of an automobile permitted as an exception to the search warrant requirement?

Answer 10

When police have probable cause, they may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers.

Note: Probable cause to search a vehicle extends only to containers and compartments that reasonably could hold the evidence they are searching for.

Question 11

How can the Sixth Amendment right to counsel be waived?

Answer 11

The Sixth Amendment right to counsel can be waived so long as relinquishment of the right is voluntary, knowing, and intelligent.

Question 12

What is the exclusionary rule?

Answer 12

Under the exclusionary rule, evidence obtained in violation of the accused’s Fourth, Fifth, or Sixth Amendment rights may not be introduced at her trial to prove her guilt (unless an exception applies).

Question 13

How is “custody” defined for purposes of Miranda?

Answer 13

Custody is either a formal arrest or a restraint on freedom of movement to the degree associated with a formal arrest. If there has been no formal arrest, the question is whether a reasonable person would have believed he could leave, given the totality of the circumstances.

Question 14

What are the seven exceptions to the exclusionary rule?

Answer 14

(1) Inevitable discovery rule - the evidence would have been inevitably discovered in the same condition through lawful means
(2) Independent source doctrine - the evidence was discovered in part by an independent source unrelated to the tainted evidence.
(3) Attenuation principle - the chain of causation between the primary taint and the evidence has been so attenuated, by time and/or intervening events, as to “purge” the taint.
(4) Good-faith exception - police officers acted in good faith on either a facially valid warrant or an existing law later declared unconstitutional.
(5) Isolated police negligence - the police conduct was not sufficiently deliberate such that the exclusionary rule could deter it.
(6) Knock and Announce - the search was a violation of the ““knock and announce”” rule –> not sufficient to exclude the evidence seized
(7) In-court Identification - the evidence is a witness’s in-court identification of the defendant.

Question 15

What is curtilage and why is it important?

Answer 15

In addition to the home itself, an area immediately surrounding the home known as the “curtilage” may be covered by the “umbrella” of the home’s Fourth Amendment protection. In determining whether the area is protected, the following four-factor test applies:

(i) The proximity of the area to the home;

(ii) Whether the area is included within an enclosure surrounding the home;

(iii) The nature of the uses to which the area is put; and

(iv) The steps taken by the resident to protect the area from observation by passersby.

Question 16

May a checkpoint be used to search for individuals?

Answer 16

Yes and is not unreasonable if used to search for witnesses (not suspects) as long as
as long as:
(i) the checkpoint stop’s primary law enforcement ** purpose is to elicit evidence ** to help them apprehend not the vehicle’s occupants but other individuals ;
(ii) the stop advanced a public concern to a significant degree ; and
(iii) the police appropriately tailored their checkpoint stops to fit important criminal investigatory needs and to minimally interfere with liberties protected by the Fourth Amendment.

Question 17

What is required to arrest an individual in the individual’s home?

Answer 17

The police must have a warrant to arrest an individual in the individual’s own home, absent exigent circumstances or valid consent to enter the arrestee’s home.

A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have reason to believe that the arrestee is present.

Question 18

What are the three requirements for a statutory scheme imposing a death penalty to be constitutional?

Answer 18

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.

Question 19

What is the privilege against self-incrimination, and to what evidence and proceedings does it apply?

Answer 19

No person shall be compelled in a criminal case to testify against himself. It protects only testimonial evidence, and applies in any proceeding if the answers provide some reasonable possibility of incriminating the witness in future criminal proceedings.

Question 20

How is the right to remain silent invoked under the Fifth Amendment, and what is the effect of invoking this right?

Answer 20

The defendant must make a specific, unambiguous statement asserting his desire to remain silent. If a defendant does so, the interrogator(s) must “scrupulously honor” that request.

Note: Merely remaining silent in response to police questioning does not invoke the privilege. However, **post-arrest silence by a defendant who has received Miranda warnings generally may not be used **by the prosecution as either impeachment or substantive evidence without violating the defendant’s right to due process.

Question 21

What is the good-faith exception to the exclusionary rule?

Answer 21

The exclusionary rule does not apply to police officers who act in good faith on either (i) a facially valid warrant later determined to be invalid or (ii) an existing law later declared unconstitutional.

Question 22

What is the effect of the plain view doctrine on items (1) in public view, and (2) in private view?

Answer 22

1) Items may be seized without a warrant because one cannot have a reasonable expectation of privacy in things that are exposed to the public.
(2) Police may seize the item as long as (i) the officer is lawfully on the premises, (ii) the incriminating character of the item is immediately apparent, and (iii) the officer has lawful access to the item.

Question 23

When are the fruits of a non-Mirandized confession admissible?

Answer 23

Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced.

Question 24

What are three exceptions to the Miranda requirements?

Answer 24

(1) Public safety;
(2) Routine booking questions; and
(3) Undercover police.

Question 25

Are searches conducted by private citizens prohibited by the Fourth Amendment?

Answer 25

No, the Fourth Amendment applies to government action, not searches made by private citizens.

The police may not circumvent the Fourth Amendment by intentionally enlisting private individuals to conduct a search of a suspect or areas in which the suspect has a reasonable expectation of privacy.

Question 26

What is the proper remedy if a right to counsel under the Sixth Amendment is denied at a nontrial proceeding?

Answer 26

The denial is subject to harmless-error analysis on appeal.

Question 27

What is meant by “open fields” for Fourth Amendment considerations?

Answer 27

Private property that lies outside the curtilage of a home, such as a farmer’s field, is not protected by the home’s umbrella of Fourth Amendment protection. Under the “open fields” doctrine, governmental intrusion on such property is not a search.

Note: The owner does not have a reasonable (i.e., objective) expectation of privacy, even though the owner may have a subjective expectation of privacy based on the fact that the land is fenced, protected from public view, and “no trespassing” signs are posted.

Question 28

When does “hot pursuit” constitute an exigent circumstance that excuses the search warrant requirement?

Answer 28

When the police have probable cause to believe that an individual has committed a felony and they are pursuing him to arrest him

If the police have probable cause to believe that the suspect has committed a misdemeanor, then the police may act without waiting for a warrant if the totality of the circumstances shows an emergency.

Question 30

Can a guilty verdict be challenged on the ground that it is inconsistent with another verdict rendered by the same jury?

Answer 30

NO
a jury that finds a defendant not guilty of one offense but guilty of another that was predicated upon commission of the first offense renders an inconistent verdict —> however, that verdict cannot be challenged on the basis of inconsistency because the jury’s decision should not be distrubed

Question 31

federal law establishes a civil litigant’s right to a jury trial for ANY legal claims when the amount in controversy exceeds

Answer 31

$20

Question 32

Right to Counsel

When is there a right to counsel at a probation revocation proceeding?

Answer 32

1. due process requires access to counsel at a probation-revocation proceeding if the individual facing revocation timely asserts that:
   * he/she did not commit the alleged violation of probation or
   * reasons that are complex or otherwise difficult to develop in court justified the violation or mitigated its commission.
2. Sixth Amendment guarantees the right to counsel at probation-revocation proceedings when a sentence for the underlying offense:
   * has not yet been imposed and
   * will be imposed if the probation is revoked.

Question 33

When does the Sixth Amendment right to counsel attach and what does it guarantee?

Answer 33

(1) automatically attaches once judicial proceedings have commenced and
(2) guarantees that criminal defendants will have the assistance of counsel during all critical stages of prosecution.

A pre-indictment line up does not require 6th amendment counsel bc not attached yet

Question 34

Does the Double Jeopardy clause preclude a defendant from being tried for a greater offense of a lesser crime if jeopardy attached to the lesser offense prior to the occurence of an event neccesary to establish the greater offense?

Answer 34

NO. The defendant can be tried for the greater offense if he was convicted of the lesser offense

The Fifth Amendment Double Jeopardy Clause provides protection against
(i) a second prosecution for the same offense after acquittal;
(ii) a second prosecution for the same offense after conviction; and
(iii) multiple punishments for the same offense.

However, when jeopardy has attached with respect to a lesser included offense prior to the occurrence of an event necessary to establish the greater offense , the defendant may be subsequently tried for the greater offense.

Example: Convicted of robbery, person in hospital bc of burglary dies after conviction, defendant can now be tried for felony murder even though robbery is a lesser included offense of the felony murder

Question 35

Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires

Answer 35

proof of an element that the other does not. ** Under this test, each crime must require the proof of an element that the other does not in order for each to be considered as a separate offense