Criminal Procedure

Question 1

Exclusionary Rule

Answer 1

Rule: exclusionary rule will suppress evidence obtained in violation of a defendants rights under the fourth, fifth, and sixth amendments; applicable to the states under the 14th amendment

Question 2

Fruits of the Poisonous Tree

Answer 2

Evidence derived from the primary tainted evidence is also exempted unless meets an exception

Question 3

Fruits of Poisonous Tree Exceptions

Answer 3

1) Inevitable discovery: would have been discovered whether or not police acted unlawfully
2) Independent Source - discovered in part by source unrelated to the tainted evidence
3) Attenuation - amount of time/events breaks chain of causation from tainted evidence
4)f Good-faith reliance - on facially valid warrant or law later struck down; objective standard
5) Inapplicability - rule does not apply to isolated negligence by law enforcement; “knock and announce violations or to witness in-court identification

Question 4

Fourth Amendment

Answer 4

Rule: protects persons from unreasonable search and seizure by the government

Only government conduct - law enforcement or an agent

Expectation of privacy in home, hotel room, overnight guest or a business premise; not in public, open field, or private property

Can only be invoked if violates your rights; cannot invoke based on violation of another’s rights

Question 5

Types of Seizure

Answer 5

1) Police Pursuit p not seizure unless there is an intentional use of force
2) Detention - look for reasonable suspicion to investigate supported by articulable facts
3) Frisk - D check if beleive armed or weapons
4) Arrest - must be supported by probable cause at the time of arrest
5) Traffic Stop - look for reasonable suspicion a law was vilate

Seizure must be brief and only long enough to verify or dispel suspicions

Question 6

Seizure of Person

Answer 6

the officer physically touches a subject or he submits to the officer’s show of authority

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

Police pursuit is not a seizure unless intentional use of force

Question 7

Terry Stop (Detention)

Answer 7

Officer must have reasonable suspicion to investigate supported by articulable facts;

Must be brief and only long enough to verify or dispel suspicions

Can frisk for officer saftey

Question 8

Arrest

Answer 8

Officer must have probable cause )knowledge of reasonably trustworthy facts and circumstances to believe the arrestee has committed a crime)

Public Place - generally does not require a warrant; crime in front of officer no warrant required if outside, no warrant required if a felony

D’s Home: require a warrant; warrant must be issued by neutral magistrate and supported by probable cause;

Another’s Home: require warrant, consent or exigent circumstance

Question 9

Traffic Stop

Answer 9

officer must have reasonable suspicion a law has been violated; valid but pretextual stop okay - can have ulterior motive to investigate the ccrime

Checkpoint stops
- near border; random search without reasonabl suspicion is allowed
-otherwise: okay if conducted pursuant ot a standard and purpose is vehicle-related

Question 10

Search

Answer 10

Rule: conduct a search, government must have a warrant supported by probable cause. or the search must meet an exception

Question 11

Probable Cause

Answer 11

exists if there is knowledge of reasonably trustworthy facts and circumstances to believe the items sought are fruit or instruments of crime

Question 12

Warrant Issuance Elements

Answer 12

1) supported by probable cause
2) issued by a detached and neutral magistrate AND
3) describes with particularity the places to be searched and items to be seized

Exeecution:
1) must be executed by officer without unreasonable delay
2) Knock and announce - must before entering, unless exigency
3) Detention, but not search, of other persons okay if in immediate vicinity

Question 13

Warrant Exceptions

Answer 13

1) Exigent Circumstances - hot pursuit, emergency situations; justified based on totality of circumstances
2) Search incident to lawful arrest - must timely search without delay; scope includes immediate area where weapon might be hidden - exigent circumstance allow check cell phone; vehicle search okay if D unsecured and within reach of the passenger compartment or if reasonable belief the vehicle has evidence of offense
3) Consent - voluntary and intelligent; co-owner can give consent; third party can if have apparent authority
4) Automobile Exception - need probably cause vehicle contains evidence of crime; can search anywhere PC supports including trunk and locked containers
5) Plain View: the officer is lawfully on premises, incriminating character of the item is immediately apparent, officer has lawful access to item
6) Stop and Frisk - detention based on reasonable suspicion of crime;

Question 14

Fifth Amendment

Answer 14

triggered mainly by confessions;
Rule: D should object to admission of confession; applicable to states by 14th amendment - protects against compelled self-incrimination

Confession obtained during custodial interrogation are inadmissible unless the D was apprised of their miranda rights

Question 15

Custodial

Answer 15

formal arrest or whether a reasonable person would have believed he could leave

Question 16

Interrogation

Answer 16

words or conduct reasonably likely to elicit an incriminating response;

Volunteered statements are not the product of interrogation (follow up to blurted out statements can be)

Routine booking questions are not interrogation

Question 17

Miranda Warning

Answer 17

need not be verbatim; apprise suspect of right to remain silent/get counsel

Timing - warning must be given before interrogation begins or repeated after an interruption of long duration

Suspect must specifically and unambiguously invoke right to silence/counsel

If counsel invoked; all questioning must stop - must wait for requested counsel

If right to silence invoked - questioning must stop; may attempt to question suspect against after substantial period of time has passed and new warning given

Question 18

Waiver Miranda Rights

Answer 18

must knowingly and voluntarily waive rights after receiving Miranda Warnings

Question 19

Exceptions Miranda Warnings

Answer 19

1) Public Safety - not requires when public safety at risk
2) Routine Booking questions
3) 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 20

Statements Taken in Violation of Miranda

Answer 20

1) Okay for impeachment if statement voluntary
2) Involuntary - violate due process; invokes the harmless error rule

Question 21

Harmless Error Rule

Answer 21

if the evidence had been excluded, would the outcome change

Question 22

Sixth Amendment

Answer 22

1) Right to Counsel
2) Right to Confront Witnesses
3) Right to Jury Trial
4) Right to Speedy Trial

Question 23

Right to Counsel

Answer 23

guarantees a criminal D the right to counsel at all critical stages of the proceedings against him

Critical Stage - hearing, post indictment lineup or interrogation, and all trial process; right attaches automatically when formal judicial proceedings have begun

Available only when facing kail time

If indigent, state must appoint counsel to assist him

Includes right to effective assistance of counsel; must show deficient performance causing prejudice

D has a right to self- representation and can waive right to counsel if knowing and intelligent

Question 24

Right to Confront Witness

Answer 24

grants criminal defendant a right to confront adverse witnesses in order to observe their demeanor and have an opportunity to cross-examine

Non-testifying co-defendant’s statement or confession is inadmissible

Prior testimonial evidence of an unavailable witness offered by the prosecution cannot be admitted unless the D had an opportunity to cross-examine the declarant at the time the statement was made

Question 25

Right to Jury Trial

Answer 25

guarantees a criminal defendant the right to jury trial for serious offenses (incardination over six months)

Question 26

Right to Speedy Trial

Answer 26

guaranteed the right to speedy trial by sixth and fourteenth amendments; time period commences at time of arrest of formal charge

Balance Factors include:
1) length of delay
2) reason for delay
3) D’s assertion of the right AND
4) prejudice to the defendant

Question 27

Identification

Answer 27

Photo Array - no right to counsel nor a right for counsel to be present at a photo array

Lineup
1) Pre-indictment - no 6th amendment right
2) Post-indictment - right to counsel applies; violation will result in exclusion of evidence
3) Admissibility: lineup violates due process if impermissibly suggestive and there was a substantial likelihood of misidentification
4) in-court identification - allowed if the witness had an opportunity to observe D at the time of the crime; state must show independent reliability by clear and convincing evidence

Question 28

Double Jeopardy

Answer 28

has a right to be free of double jeopardy for the same offense; 5th amendment, applicable 14th to the states

Protects 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

Attached - jury panel when jury sworn in, bench trial after first witness sworn in

Each crime must require proof of an element the other does not - otherwise merges;

Different victims, different offenses

Sepearate Sovereign rule - if two different sovereigns have jurisdiction, each can try D for the same offense; can be tried by two state, or by US and State