Criminal Procedure Flashcards
Under the 5th Amendment, an incriminating statement obtained as the result of custodial interrogation…
…may not be used against the suspect at a subsequent trial unless the police provided procedural safeguards effective to secure the privilege against self-incrimination (i.e., informed the suspect of his Miranda rights).
A defendant [can/cannot] be tried for conspiracy and substantive offense for the same T/O at a later trial.
A defendant [can/cannot] be tried for conspiracy and substantive offense for the same T/O at the same trial.
[cannot]
[can]
Two or more offenses by the same defendant may be charged in separate counts of the same indictment or information as long as the charges…
… are based on the same act, transaction, or on two or more acts or transactions that are connected or parts of a common scheme or plan.
Upon motion of […], the court may order multiple defendants charged with participating in contemporaneous and related acts or in a series of acts constituting an offense jointly tried unless […].
[the Commonwealth]
[it would prejudice the defendant]
If prejudice is present, the court must order the prejudiced defendant severed.
What is an Alford plea?
An “Alford” plea is a plea in which a defendant, without admitting guilt, admits that the Commonwealth has sufficient evidence by which the defendant could be convicted beyond a reasonable doubt.
What is an “ask first, warn later” technique, and is it generally permissible?
The “ask first, warn later” technique, where officers question without Miranda warnings and then issue warnings to repeat statements, is generally not permissible as it undermines the suspect’s Fifth Amendment rights.
An unreasonable search occurs when the government…
…(i) invades a place protected by a reasonable expectation of privacy, or (ii) physically intrudes upon a constitutionally protected area to gather information.
A police officer may seize an item in plain view as long if…
(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
A search warrant grants officers authority to search only the…
…places and persons named in it.
When should a motion to strike be denied? What must the court consider?
A motion to strike should be denied if the evidence is sufficient as a matter of law to sustain a conviction.
In considering a motion to strike, all inferences that a jury might fairly draw must be drawn in the non-moving party’s favor unless those inferences would be forced, strained, or contrary to reason.
Under what conditions may a defendant waive their right to a jury trial?
The defendant may waive his right to a jury trial upon the advice of his counsel, as long as the Commonwealth attorney and the judge agree and the court determines before trial that the waiver was voluntarily and intelligently given.
The same jury [may/may not] decide both guilt and the sentence.
[may]
But the Judge, upon consent of the defendant and the Commonwealth, can be allowed to determine the sentence.
the Commonwealth bears the burden of proof [by what standard?] that a confession was made after (i) a waiver of the Miranda warnings, and (ii) that the confession was voluntary.
[beyond a reasonable doubt]
Ho does a court assess whether a waiver of Miranda was voluntary?
A review of voluntariness is based on the totality of the circumstances, including the time, length, place, and presence of others.
The defendant’s age, state of health, education, and intoxication are all factors in determining the coercive nature of the confession.
Under the Sixth Amendment, a defendant has the right to […] adverse witnesses, and to […] adverse witnesses.
[directly encounter and cross-examine]
[be present at any stage of the trial that would enable the defendant to effectively cross-examine]
A denial of the opportunity to cross-examine a prosecution witness with regard to bias violates the Confrontation Clause.
What are the rules for jurisdiction over juveniles?
JDRC courts handle cases involving juveniles under 18 accused of crimes, losing jurisdiction if the case is transferred to the circuit court.
For juveniles 14 or older charged with a felony, the court may transfer the case to the circuit court if probable cause is found, the child is competent, and evidence shows the child is not suitable for juvenile court.
The court must hold a preliminary hearing for juveniles 16 or older charged with serious felonies, and if probable cause is found, the case is certified to the circuit court.
Transferred cases are tried as if the juvenile were an adult, with sentencing determined by the court, allowing juvenile or adult sentences for nonviolent felonies and adult sentences, possibly suspended, for violent felonies.
What is a stop and when may a police officer stop someone?
A stop is a limited and temporary intrusion on an individual’s freedom of movement short of a full custodial arrest.
A police officer may stop a person when the officer has reasonable suspicion, based upon articulable facts and in light of the totality of the circumstances, that the detainee is involved in illegal activity
Evidence seized during a search in violation of the Fourth Amendment is…
…inadmissible against the victim of the search.
What are the seven exceptions to the search warrant requirement?
(1) SITA
(2) Exigent Circumstances
(3) Stop and Frisk
(4) Automobile Exception
(5) Plain View
(6) Consent
(7) Warrant authorizing wiretapping
Who can consent to a search and must it be knowing and voluntary?
Anyone with actual or apparent authority over property. (This includes a bailee).
Yes, of course it must be knowing and voluntary. Were you really about to say no??
A police officer who witnesses a traffic infraction has…
…probable cause to stop the car.
Under the automobile exception, the police may search anywhere in a car…
…that they believe there to be contraband or evidence of a crime, including the trunk and locked containers, so long as they have probable cause to do so.
Additionally, the use of a drug-sniffing dog on the car does not violate a reasonable expectation of privacy.
After the conclusion of a traffic stop, absent reasonable suspicion, police extension of the stop in order to conduct a dog sniff …
…violates the Fourth Amendment’s protection against unreasonable seizures.
Under the exclusionary rule, evidence seized during an unlawful search cannot constitute proof against the…
…victim of the search.
Subject to some exceptions, 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.”
When may an officer seize evidence during a stop and firsk?
Under the “plain feel” exception, if an officer conducting a valid frisk feels with an open hand an object that has physical characteristics that make its identity immediately obvious (i.e., he has probable cause to believe that the item is contraband), then the officer may seize the evidence.
A frisk must be predicated on…
…reasonable suspicion that the suspect has a weapon.
Pursuant to a lawful stop of a vehicle, police may conduct a search of the passenger compartment for weapons, if:
(i) the police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons, AND
(ii) the search of the passenger compartment is limited to those areas in which a weapon may be placed or hidden.
In Virginia, offenses that are punishable by death or confinement in a state correctional facility are […].
felonies
Interrogation refers not only to express questioning, but also to…
…any words or actions that the police know or should know are reasonably likely to elicit an incriminating response.
Custody is a substantial seizure and is defined for Miranda purposes as 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.
The court *may *upon its own motion and must upon the motion of any party, require the exclusion of all witnesses except the […] and the […]
[victim] and the [defendant].
HOWEVER, at any trial the victim may remain in the courtroom and shall not be excluded, unless the court determines, in its discretion, the presence of the victim would impair the conduct of a fair trial.
Defense motions or objections seeking the suppression of evidence seized during illegal searches and seizures must be…
…made in writing and notice given to opposing counsel not later than seven days before a circuit court trial.
Under the exclusionary rule, evidence obtained in violation of the Fourth Amendment may not…
… be introduced at trial to prove guilt.
A criminal defendant can appeal a final verdict or decision from the circuit court to the Virginia Court of Appeals [by petition/as of right].
A defendant should file a Notice of Appeal within […] days from the date of the order being appealed.
[as of right]
[30]
A copy of the Notice of Appeal must also be sent to the Court of Appeals’ clerk’s office, as well.
