Criminal Procedure

Question 1

Accomplice liability

Answer 1

An accomplice is a person who (1) counsels, aids, or encourages a principal to commit a crime (2) with the intent of assisting the crime, and that the crime be committed.

Accomplices are liable for all crimes that are reasonable, probable, and foreseeable consequences of the planned crime.

Accomplices may withdraw prior to the commission of the crime, so long as an inevitable chain of events has not been put into motion, by repudiating prior aid or encouragement, and doing all that is possible to counteract that aid.

Question 2

4th amendment (always mention governmental conduct)

Answer 2

The Fourth Amendment protects persons against unreasonable searches and seizures. It is applicable to the states via the Fourteenth Amendment. To assert a Fourth Amendment challenge, there must be governmental conduct and a reasonable expectation of privacy regarding the place searched or the item seized.

Structure:
1) 4th amendment intro
2) government conduct
3) reasonable expectation of privacy
4) Exclusionary Rule (if applicable)

Question 3

Right to a speedy trial

Answer 3

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.

Question 4

Exigent circumstances

Answer 4

Under a totality of circumstances test, exigent circumstances may make a warrantless search constitutional if probable cause exists. Exigency can be determined by many factors, including hot pursuit of a fleeing felon, reasonable apprehension that a delay in getting a warrant would result in the immediate danger of evidence destruction, or
police and/or public safety.

Question 5

Fruit of the poisonous tree

Answer 5

The exclusionary rule applies not only to evidence initially seized as a result of the primary government illegality, but also to secondary “derivative evidence” discovered as a result of the primary taint, also known as the “fruit of the poisonous tree.”

Question 6

Exclusionary Rule

Answer 6

Exclusionary rule is a judicially created remedy to unreasonable searches or seizures; requires suppression of illegally obtained evidence in violation of the 4th amendment.

Question 7

Exclusionary Rule exceptions

Answer 7

Inevitable discovery - the prosecution can prove that the evidence would have been inevitably discovered in the same condition through lawful means.

Independent source - the evidence was discovered in part by an independent source unrelated to the tainted evidence (i.e. if a police officer independently has probable cause for making the arrest)

Attenuation - Sufficient time has passed (or sufficient intervening events have occurred) in between the illegal action and discovery of the evidence, so as to purge the taint.

Good faith - The good-faith exception applies to police officers who act in good faith on either a facially valid warrant later determined to be invalid or an existing law later declared unconstitutional.
DOES NOT APPLY if warrant was obtained by fraud.

Question 8

Custody (5th amendment)

Answer 8

A person is in custody if he reasonably believes he is not free to leave or is otherwise deprived of his freedom in a significant way

Question 9

5th amendment

Answer 9

The 5th Amendment provides that no person shall be compelled in a criminal case to testify against himself. The right applies to testimonial evidence coercively obtained by the police

Question 10

Probable cause

Answer 10

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.

Question 11

Waiver of 5th amendment right to counsel

Answer 11

When a suspect invokes his 5th amendment right to counsel, no subsequent waiver of that right will be considered valid unless there is atleast a 14-day break in custody.

Question 12

Lineups

Answer 12

A defendant may challenge the admissibility of a pre- or post-indictment lineup on due process grounds if the lineup was (1) impermissibly suggestive such that (2) there was a high likelihood of misidentification. Even if a lineup is suggestive, the identification may still be admissible if the prosecution can offer evidence that the identification was nonetheless reliable.

Question 13

Force against unlawful arrest

Answer 13

A defendant may use non-deadly force to resist an unlawful arrest, but never deadly force. Some jurisdictions do not permit the use of force at all and require defendants to seek legal redress for an unlawful arrest.

Question 14

Interrogation (5th amendment)

Answer 14

Words or actions police know or should know are reasonably likely to elicit an incriminating response.

Question 15

Voluntary, Non-Mirandized Statements

Answer 15

Statements cannot be used for substantive purposes but may be used for impeachment.

Statements made in violation of Miranda rights will be excluded, but they are admissible for impeachment purposes if the defendant chooses to testify and the prosecution seeks to impeach (discredit) the defendant’s testimony.

Also, any physical fruits of the confession, such as evidence seized in reliance on statements made in the confession (such as the location of
contraband) are not excluded.

Question 16

6th amendment right to counsel

Answer 16

The 6th Amendment right to counsel automatically applies at all critical stages of prosecution after formal proceedings begin. The right attaches when the state initiates prosecution through an indictment or formal charge and ends at the sentencing stage

Question 17

Right to testify

Answer 17

A defendant has a right to testify and to present evidence on his own behalf, including the right to call as witnesses other persons charged as principals, accomplices, or accessories in the same crime.

Question 18

Right to pro se representation

Answer 18

A defendant has the constitutional right to refuse counsel and proceed pro se at trial.

The waiver of the right to counsel must be knowingly and intelligently made. But the court should make the defendant aware of the dangers and disadvantages of self-representation, such as the inability to raise an “ineffective assistance of counsel” defense on appeal.

Also talk about D’s competence and timeliness of request

Question 19

Plain view

Answer 19

No warrant is required to seize evidence in plain view if the police are lawfully in the location from which the evidence can be viewed and the criminal nature of the item is immediately apparent.

Question 20

Automobile exception to warrant requirement

Answer 20

Under the automobile exception, the police can search any part of defendant’s car if they have probable cause that it contains contraband or other evidence of a crime

Question 21

Attempt

Answer 21

specific intent to commit a crime + a substantial step towards commission of that crime (MPC/Majority) or D’s acts result in a dangerous proximity to completion of the crime (common law)

Substantial step - MPC/Majority

Dangerous proximity - Common Law

Question 22

Search

Answer 22

A search can be based on a violation of a reasonable expectation of privacy, or on a physical intrusion.

A search may occur when the government physically intrudes upon private property for the purposes of obtaining information.

The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search

Question 23

Sense-enhancing technologies

Answer 23

The use of a device or sense-enhancing technology (e.g., a thermal sensing device) that is not in use by the general public to explore the details of a dwelling that would previously have been unknowable without physical intrusion constitutes a search

Question 24

Search incident to lawful arrest

Answer 24

Upon a lawful arrest based on probable cause, the police may contemporaneously search a person and areas within his wingspan. The police may also make a protective sweep of the area if they believe accomplices may be present.

Question 25

Effect of an invalid arrest on statements made by defendant

Answer 25

While evidence seized pursuant to an unlawful arrest may be suppressed at trial, a voluntary confession made after an unlawful arrest will not automatically be suppressed.

The unlawfulness of the arrest may be considered as a factor when determining whether a confession was truly voluntary. And, if the confession is too closely tied to the illegal arrest, it may be suppressed.

Question 26

Entrapment

Answer 26

Entrapment is the conception and planning of an offense by a law-enforcement officer, and his procurement of the commission of the crime by the Defendant via trickery, fraud, or persuasion.

Elements:
(1) crime was induced by government official, AND
(2) defendant was not predisposed to commit the crime.

Question 27

Terry Stop and Frisk

Answer 27

Must be based on reasonable suspicion based on articulable facts

Can pat down if officer reasonably believes suspect is armed and dangerous

While patting down, cannot reach into pockets unless officer feels any weapons or contraband whose shape is immediately obvious.

Question 28

Conspiracy

Answer 28

A conspiracy is formed via an agreement between