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CA Bar Rules > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

HIGH

4th AMENDMENT SEARCHES

A

Under the 4th Amendment, a person is granted protection from unreasonable government searches. A search occurs when government conduct violates a person’s reasonable expectation of privacy. Absent an exception, a warrantless search performed by the government is unlawful.

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2
Q

HIGH

PLACES WHERE THERE IS A REASONABLE EXPECTATION OF PRIVACY

A

Places where there is a reasonable expectation of privacy:

  1. Homes
  2. Hotel rooms
  3. Offices
  4. Backyard of the home (curtilage)
  5. Luggage
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3
Q

HIGH

PLACES WHERE THERE IS NOT A REASONABLE EXPECTATION OF PRIVACY

A

Places where there is NOT a reasonable expectation of privacy:

  1. Public streets
  2. Open fields (even if the open field is private property)
  3. Garbage left out in the street
  4. Abandoned property
  5. Anything visible from public airspace
  6. Anything that can be seen inside one’s home from public space.
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4
Q

HIGH

SEARCH WARRANT EXCEPTIONS

A

Absent any of the seven exceptions listed below, a warrantless search performed by the government that violates a reasonable expectation of privacy is unlawful.

Evidence obtained without a warrant is usually excluded unless an exception applies. Think of the seven exceptions to the warrant requirement as seven E.S.C.A.P.E.S. from the warrant requirement:

  1. Exigent circumstances
  2. Search incident to lawful arrest (SILA)
  3. Consent
  4. Automobiles
  5. Plain View
  6. Evidence obtained from administrative searches
  7. Stop and frisk
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5
Q

lowest

SEARCH WARRANT REQUIREMENTS

A

A search warrant must:

  1. Be issued by a neutral magistrate;
  2. Be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime; AND
  3. Describe the place and property to be searched with particularity.

If a warrant fails to meet these three requirements, the warrant is invalid, and the recovered items will be excluded from the prosecutor’s case-in-chief.

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6
Q

lowest

SEARCH WARRANT EXCEPTION: EXIGENT CIRCUMSTANCES

A

Law enforcement officers may conduct a search without a warrant if:

  1. The officers are in “hot pursuit” or immediate danger; OR
  2. The evidence would spoil or disappear in the time it would take to obtain a warrant.
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7
Q

lowest

SEARCH WARRANT EXCEPTION: SEARCH INCIDENT TO A LAWFUL ARREST

A

Law enforcement officers may conduct a search without a warrant if the search occurs at the time that a lawful arrest is made. The scope of the search is limited to objects within the reach of the arrestee (e.g., if the arrestee is restrained, their reach is very limited - this would limit the permissible scope of the search).

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8
Q

lowest

SEARCH WARRANT EXCEPTION: CONSENT

A

Law enforcement officers may conduct a search without a warrant if a person voluntarily consents to a search.

Officers do NOT have to inform the subject that she has the right to refuse consent to the search.

A third party with apparent authority can consent to search. However, officers cannot search over a present occupant’s objection (e.g., if one occupant consents and the other occupant refuses, officers cannot search the property).

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9
Q

lowest

SEARCH WARRANT EXCEPTION: AUTOMOBILES

A

Law enforcement officers may conduct a search without a warrant if they have probable cause to believe that an automobile contains contraband or evidence of a crime.

They can search the parts of the vehicle, and containers inside, which could reasonably contain the items for which there is probable cause (e.g., cannot search for a shotgun in the glove box where it cannot reasonably fit).

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10
Q

LOW

SEARCH WARRANT EXCEPTION: PLAIN VIEW

A

Law enforcement officers may seize evidence without a warrant if:

  1. The officers are legally on the premises;
  2. The evidence is observed (with any of the five senses) in plain view; AND
  3. There is probable cause to believe the items are evidence of a crime or contraband.
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11
Q

lowest

SEARCH WARRANT EXCEPTION: ADMINISTRATIVE SEARCHES

A

Law enforcement officers do NOT need search warrants to conduct administrative searches if the search is both:

  1. Reasonable; AND
  2. Conducted pursuant to established police agency procedures that are designed to meet legitimate objectives while limiting the discretion of the officer.

E.g., airplane boarding areas, international borders, roadblocks for drunk drivers or seeking information, etc.

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12
Q

LOW

SEARCH WARRANT EXCEPTION: STOP AND FRISK [TERRY STOPS]

A

Law enforcement officers can stop an individual when the officer has a reasonable suspicion, based on articulable facts (i.e., more than a “hunch” - less than probable cause), to believe that the subject is or is about to be engaged in criminal activity.

During a Terry stop, an officer can frisk a subject for weapons without a warrant; however, the officer cannot initiate a search for evidence. I

f the frisk for weapons reveals objects whose shape makes their identity obvious (e.g., object is obviously contraband), the officer may seize those objects.

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13
Q

LOW

ARREST REQUIREMENTS

A

In order to arrest an individual, law enforcement officers must have probable cause to believe that the individual has committed a crime. An officer has probable cause if:

  1. The officer witnesses the commission of the crime; OR
  2. A person tells the officer that a crime has been committed.
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14
Q

LOW

ARREST WARRANTS

A

An arrest warrant is issued by a neutral magistrate based on a finding of probable cause to believe that the named individual has committed a crime. An arrest warrant authorizes law enforcement officers to enter a home to arrest the individual.

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15
Q

ARRESTS WITHOUT A WARRANT

A

An individual may be arrested with or without an arrest warrant. Without a warrant, officers can arrest an individual inside the home only if there is:

  1. Consent to enter; OR
  2. Exigent circumstances.
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16
Q

HIGH

CUSTODIAL INTERROGATIONS

A
  1. Custodial. A person is in custody when he reasonably believes that he is not free to leave (e.g., in the back of a police cruiser).
  2. Interrogation. A person is subject to an interrogation when the police know or should know that their words or actions are likely to elicit an incriminating response.

Under Miranda, any incriminating statement obtained as a result of custodial interrogation (i.e., suspect is in custody and subject to police interrogation) may not be used against the suspect at a subsequent trial unless the police informed the suspect of his Miranda rights.

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17
Q

HIGH

MIRANDA RIGHTS

A

When a person is in custody, the police MUST inform the person of her Miranda rights BEFORE subjecting her to a police interrogation. This includes informing the subject:

  1. She has the right to remain silent;
  2. Any statement she makes may be used against her in court;
  3. She has the right to consult an attorney and to have the attorney present during questioning; AND
  4. She has the right to have an attorney appointed if she cannot afford one.
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18
Q

HIGH

MIRANDA WAIVER

A

A defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily.

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19
Q

HIGH

INVOCATION OF THE 5th AMENDMENT RIGHT TO REMAIN SILENT

A

The police MUST cease their interrogation if the party being questioned affirmatively invokes her right to remain silent.

After a substantial period of time, police can go back to the suspect, give Miranda warnings again, and seek to interrogate her further.

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20
Q

HIGH

INVOCATION OF THE 5th AMENDMENT RIGHT TO COUNSEL

A

The police MUST cease their interrogation if the party being questioned affirmatively invokes her right to counsel. The interrogation cannot resume until the lawyer is present, the suspect reinitiates the interrogation, or 14 days have passed since the suspect was released from custody.

21
Q

HIGH

MIRANDA VIOLATIONS

A

A statement obtained in violation of Miranda is inadmissible in the prosecution’s case-in-chief, BUT can be admitted to impeach the defendant. Evidence obtained from a voluntary statement taken in violation of Miranda is admissible. Miranda is violated if:

  1. The police fail to give Miranda warnings before a custodial interrogation; OR
  2. The police fail to cease interrogation of a person after she has affirmatively invoked her right to remain silent or her right to counsel.
22
Q

HIGH

MIRANDA EXCEPTIONS

A

There are three main exceptions to the Miranda requirement. The police are NOT required to give Miranda warnings before questioning a suspect:

  1. When the public’s safety is at risk;
  2. When the suspect being questioned is not aware that the interrogator is a police officer (e.g., undercover police officers); OR
  3. If the questioning is biographical for routine booking purposes.
23
Q

HIGH

HARMLESS ERROR RULE

A

If evidence in violation of Miranda is admitted at trial, a guilty verdict will be upheld if the prosecution can prove beyond a reasonable doubt that the error was harmless because the defendant would have been convicted even without the tainted evidence.

24
Q

LOW

INVOLUNTARY STATEMENTS UNDER THE 5th AMENDMENT

A

The 5th Amendment protects against government compulsion of involuntary statements. Statements are involuntary only if the police coerced the defendant into making the statements. To determine whether a statement was coerced by the police, courts look at the totality of the circumstances. Relevant factors include:

  1. The length of the interrogation;
  2. The time and location where the interrogation took place;
  3. Police tactics used (e.g., force, trickery, etc.); AND
  4. The character of the person being interrogated (e.g., age, experience, state of health, education level, sophistication, intoxication, mental condition, etc.)
25
Q

LOW

USE OF FORCE IN POLICE INTERROGATIONS

A

The application of force or threats of force made by the police to the person being interrogated renders any statements made during the interrogation involuntary.

26
Q

LOW

USE OF TRICKERY IN POLICE INTERROGATIONS

A

Trickery or false promises made by the police to the person being interrogated may render their statements involuntary.

However, deceit or fraud by the police (i.e., lying about an accomplice’s confession) does not itself make a statement involuntary.

27
Q

LOW

ADMISSIBILITY OF INVOLUNTARY STATEMENTS

A

An involuntarily obtained statement is NOT admissible against a defendant for substantive purposes or for impeachment purposes. Evidence obtained from an involuntary statement is fruit of the poisonous tree and is presumptively inadmissible.

28
Q

LOW

6th AMENDMENT RIGHT TO COUNSEL

A

The 6th Amendment guarantees a criminal defendant “the assistance of counsel for his defense.” The 6th Amendment right to counsel automatically attaches once formal adversarial judicial proceedings have commenced (e.g., formal charge, preliminary hearing, indictment, arraignment, and all parts of the trial process). By contrast, the 5th Amendment right to counsel must be affirmatively invoked by the defendant (does NOT automatically attach).

29
Q

LOW

6th AMENDMENT RIGHT TO COUNSEL VIOLATIONS

A

Once a defendant’s 6th Amendment right to counsel has attached, any attempts to deliberately elicit a statement from him in the absence of his attorney violates the 6th Amendment. However, The 6th Amendment right to counsel is offense-specific; meaning that it only applies to the offense that the defendant has been formally charged with. The police are free to question the defendant about unrelated offenses without his attorney present.

30
Q

LOW

6th AMENDMENT RIGHT TO COUNSEL WAIVER

A

The 6th Amendment right to counsel is in effect once it automatically attaches UNLESS the defendant voluntarily, knowingly, and intelligently waives the right. The defendant must understand the nature of the right being waived and the consequences for waiving it.

31
Q

lowest

INEFFECTIVE ASSISTANCE OF COUNSEL

A

The Supreme Court has held that part of the 6th Amendment right to counsel is a right to effective assistance of counsel. If a convicted defendant can prove that he had ineffective assistance of counsel at trial, his conviction can be overturned. To prove ineffective assistance, a defendant must show:

  1. That his trial lawyer’s performance fell below an objective standard of reasonableness; AND
  2. A reasonable probability that the result of the proceeding would have been different BUT FOR his counsel’s unprofessional errors.
32
Q

lowest

6th AMENDMENT RIGHT TO COUNSEL FOR PHOTO ARRAYS

A

Neither the defendant nor his attorney has the right to be present, but the police must turn over the photo array to the defendant.

33
Q

lowest

6th AMENDMENT RIGHT TO COUNSEL FOR PRE- INDICTMENT LINEUPS

A

The defendant does NOT have a 6th Amendment right to have counsel present during a pre-indictment lineup.

34
Q

lowest

6th AMENDMENT RIGHT TO COUNSEL FOR POST- INDICTMENT LINEUPS

A

The defendant has a 6th Amendment right to have counsel present during a post-indictment lineup. If that right is violated, then evidence that the witness identified the defendant at the lineup MUST be excluded.

35
Q

lowest

EXCLUSIONARY RULE AND FRUIT OF THE POISONOUS TREE

A

Evidence obtained in violation of the defendant’s 4th, 5th, or 6th Amendment rights is inadmissible in a criminal case. Additionally, all evidence obtained as a result of the constitutional violation is inadmissible as fruit of the poisonous tree.

These exclusionary rules do NOT apply to Miranda violations; they only apply to 4th, 5th, and 6th Amendment violations.

36
Q

LOW

EXCEPTIONS TO THE EXCLUSIONARY RULE

A

The exclusionary rule does NOT apply if:

  1. The police had an independent source for the evidence that was distinct from the original illegal source;
  2. The discovery of the evidence was inevitable regardless of the violation;
  3. There is attenuation in the causal chain, such that intervening events and the passage of time can remove the taint; OR
  4. The police relied in good faith on either:
    1. existing law that was later declared unconstitutional; or
    2. a warrant that, while facially valid, is later found to be defective.
37
Q

LOW

6th AMENDMENT RIGHT TO A JURY TRIAL

A

The 6th Amendment guarantees a criminal defendant the right to a jury trial for all serious offenses.

Serious offenses are those for which the authorized punishment is more than 6 months of incarceration.

38
Q

LOW

JURY POOL IN CRIMINAL CASES

A

The potential jury pool must represent a fair cross-section of the community from which no distinctive group is excluded.

However, the actual jury that is seated must be only impartial - it does NOT have to represent a fair cross-section of the community.

39
Q

LOW

REMOVAL OF POTENTIAL JURORS

A

Potential jurors may be removed for cause to ensure an impartial jury OR through the use of peremptory challenges.

Peremptory challenges allow each side to remove a limited number of potential jurors for any reason other than race or gender.

40
Q

lowest

GUILTY PLEAS

A

A guilty plea waives the various trial rights that a defendant would otherwise have (e.g., right to a jury trial, right to appeal if there is a conviction, etc.).

For a guilty plea to be valid, the judge must:

  1. Inform the defendant of his rights and ensure that the defendant understands those rights;
  2. Inform the defendant of possible sentences;
  3. Make sure there is a factual basis for the plea;
  4. Determine that the plea did not result from force, threats, or improper promises; AND
  5. Make sure that defendant understands the immigration consequences of pleading guilty.
41
Q

LOW

BURDEN OF PROOF IN CRIMINAL CASES

A

The prosecution MUST prove every element of a crime beyond a reasonable doubt in order to obtain a conviction of the defendant. However, the government can shift the burden of proof to the defendant in regard to affirmative defenses argued by the defendant.

42
Q

LOW

DOUBLE JEOPARDY

A

Double jeopardy ensures that the defendant is protected against:

  1. Prosecution for the same offense after acquittal;
  2. Prosecution for the same offense after conviction; AND
  3. Multiple prosecutions or punishments for the same offense.
43
Q

LOW

MOTION FOR JUDGMENT OF ACQUITTAL

A

After the government closes its evidence or after the close of all the evidence, the court, on the defendant’s motion, must enter a judgment of acquittal for the defendant if the evidence is insufficient to sustain a conviction (i.e., no reasonable jury could find that each element of the offense was proven beyond a reasonable doubt).

44
Q

Sensory Enhancing Technology

A

The use of sense-enhancing technology that is not in use by the general public constitutes a search.

45
Q

Probable Cause

A

In determining if probable cause for the issuance of a warrant exists, the court will look at the totality of the circumstances.

Facts supporting probable cause may come from a police officer’s personal observations or information from a reliable, known informant or from an unknown informant that can be independently verified.

46
Q

6th Amendment Speedy Trial

A

The 6th Amendment right to a speedy trial does not attach until the defendant has been arrested or formally charged.

The factors to be considered in determining whether the defendant has been deprived of a speedy trial post-accusation are (i) the length of the delay; (ii) the reason for the delay; (3) the defendant’s assertion of a right to a speedy trial; and (iv) prejudice to the defendant.

Courts weigh these factors and determine whether the state made a “diligent, good-faith effort” to bring the defendant to trial. The remedy for a violation of the defendant’s right to a speedy trial is dismissal of the charges with prejudice.

47
Q

Impermissibly Suggestive Identification (General Rule)

A

A defendant has a due process right with regard to a witness’s identification based on an identification procedure arranged by the police that was impermissibly suggestive.

Courts use a two-prong test to determine the admissibility of a pre- or post-indictment lineup identification:

(i) the defendant must prove that the identification procedure was impermissibly suggestive, and

(ii) the defendant must prove that there was a substantial likelihood of misidentification.

In order to have the identification admitted, the prosecution can offer evidence that the identification was nonetheless reliable.

48
Q

Impermissibly Suggestive Identification (Factors)

A

In making its ruling, the court considers the following factors: the witness’s opportunity to view the defendant at the time of the crime; the witness’s degree of attention at the time of the crime; the accuracy of the witness’s description of the defendant prior to the identification; the level of certainty at the time of the identification; and the length of time between the crime and the identification.

CA Bar Rules (17 decks)

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