Criminal Procedure

Question 1

4th amendment standing

Answer 1

Car stop = driver and passengers.

Home = right of possession and overnight guest.

Question 2

When do police need warrants?

Answer 2

• in home, UNLESS consent or exigent circumstances.
• exigent circumstances:
  1) hot pursuit: felony, NOT misdemeanor.
  2) emergency: evidence destroyed OR officer safety.
• knock and announce
• consent:
• third party can consent as to area of joint control, UNLESS owner is present and objects, BUT in any case NOT to area of exclusive control, BUT officers may rely on apparent authority. EXCEPTIONS: landlords and tenants, hotel guests, employee personal lockers.
• parent can consent to search of adult child’s room.

Question 3

Probable cause for a warrant

Answer 3

1) officer’s personal observation.
2) information from reliable known informant.
3) info from unknown informant if independently verified.
4) evidence already seized through lawful means.

• Honest mistake does not invalidate warrant UNLESS officer knew the info was false or recklessly disregarded truth.

Question 4

NY: probable cause

Answer 4

• Probable cause need not use competent evidence, may use unsworn hearsay.
• If using informant, warrant must demonstrate:
  1) veracity
  2) reliability
  3) basis of knowledge

Question 5

Search incident to lawful arrest

Answer 5

• within defendant’s wingspan as long as bag is large enough to conceal weapon or evidence of crime.

Question 6

NY: search incident to arrest

Answer 6

Police may NOT search area around defendant UNLESS they believe he is armed and dangerous.

Question 7

NY: emergency (search without warrant)

Answer 7

Must show:

1) nexus between emergency and area searched
2) emergency needed immediately attended to
3) primary purpose was to deal with emergency, not to pursue arrest.

Question 8

Stop and frisk

Answer 8

1) reasonable suspicion
- less than probable cause.
2) based on articulable facts
- can be based on informant’s tip if reliable.
3) that defendant was involved in crime.

• Frisk: allowed if necessary for safety.
• officer can seize anything that be plainly identified by feel.

Question 9

NY: stop and frisk

Answer 9

Officer may ONLY seize something that plainly feels like a weapon under stop and frisk.

Question 10

Terry stop of car

Answer 10

Police can search passenger compartment for weapons if:

1) reasonable belief that suspect has dangerous weapons;
2) search limited to where weapons could be hidden;
3) may frisk individual if reasonable suspicion that he has weapon.

Question 11

Rules for searching a vehicle

Answer 11

1) NO warrant needed if probable cause that car contains contraband or evidence or a crime (NOT applicable to searches of passengers).

2) search incident to arrest of driver if:
i) arrestee in reaching distance of passenger compartment; OR
ii) reasonable belief that evidence of offense may be found in vehicle.

3) if car legally impounded, can search entire car.

Question 12

Plain view

Answer 12

Can seize if:

1) in house for lawful purpose
2) incriminating character is immediately apparent.

Question 13

NY: plain view

Answer 13

Officers cannot seize material based on alleged obscenity without a warrant.

Question 14

NY: consent by drivers

Answer 14

Anyone who drives a car is deemed to have consented to blood, urine, breath, and saliva tests.

Question 15

Administrative searches

Answer 15

1) airports
2) business in highly regulated industries
3) wiretaps for national security
4) search of students by drug officials
5) special needs, e.g. drug testing of student athletes.
6) inventory searches of items in official custody (in NY, must have established procedures).
7) border searches.
8) checkpoints and roadblocks if uniform and nondiscriminatory.
9) file cabinets and desks of government employees if reasonable suspicion of work-related misconduct.
10) traveler suspected of smuggling contraband in stomach.
11) searches of parolees and their homes.
12) seizure of contaminated/spoiled food.

Question 16

Exceptions to exclusionary rule

Answer 16

1) inevitable discovery rule
2) independent source doctrine:
3) attenuation principle: passage of time OR intervening events.

4) Good faith exception: if good faith reliance on warrant, evidence admissible UNLESS:
i) no reasonable officer would have relied;
ii) warrant defective on face;
iii) warrant obtained by fraud
iv) warrant improperly executed
v) magistrate wholly abandoned judicial role.

5) Back-office negligence not disqualifying UNLESS systemic or reckless.
6) Violation of knock and announce will not lead to exclusion.
7) Witness’ in-court identification is always admissible.

Question 17

NY: exceptions to exclusionary rule

Answer 17

NY does NOT have a good faith exception.

Question 18

Use of statements barred by 5th amendment

Answer 18

• Involuntary statements: not usable for impeachment or case in chief.
• Voluntary statements in violation of Miranda:
  1) can by used for impeachment.
  2) physical fruits are admissible for case in chief.

Question 19

NY: voluntary confessions

Answer 19

NY courts consider:

1) length of interrogation
2) for minors, absence of parent.

Question 20

Consequences of violation of Miranda

Answer 20

1) cannot be used in case in chief.
2) can use to impeach defendant if voluntary and trustworthy.
3) physical fruits of voluntary statements are admissible.
4) voluntary post-Miranda statements are admissible UNLESS police were intentionally attempting to circumvent Miranda.
* Harmless error test for evidence admitted in violation of 5th amendment.

Question 21

6th amendment right to counsel

Answer 21

1) all felony cases

2) misdemeanor cases in which incarceration is actually imposed.

Question 22

When does 6th amendment right to counsel apply?

Answer 22

• From formal charges to sentencing. Includes indictment, arraignment or preliminary hearing.
  1) post-indictment/pre-arraignment lineups and identifications.
  2) custodial and police interrogations.
  3) post-arraignment interrogations.
  4) arraignment.
  6) guilty please and sentencing.
  7) appeals as a matter of right.

Question 23

When does 6th amend right to counsel NOT apply?

Answer 23

1) witness viewing photo IDs;
2) pre-charge investigative lineups;
3) fingerprints, handwriting, voice, or blood samples.
4) preliminary hearings on probable cause.
5) discretionary appeals.
6) post-conviction proceedings (parole, probation).

Question 24

NY: “indelible” right to counsel

Answer 24

Right to counsel attaches on:

1) commencement of formal judicial proceedings.
2) at investigatory lineup, if defendant already has attorney and request his presence.
3) significant judicial activity, including grand jury appearances.
4) in custody, where police conduct is likely to be overwhelming to layperson, and counsel is requested.

Question 25

Waiver of 6th amendment right

Answer 25

Knowing + voluntary + intelligent.

Question 26

NY: waiver of right to counsel

Answer 26

• If represented by attorney, waiver valid ONLY in presence of counsel, UNLESS that counsel is for unrelated charge.

Question 27

Consequences of 6th amendment violation

Answer 27

1) if at trial, automatic reversal.
2) withdrawal of guilty plea.
3) placement of informant -> inadmissible.
4) exclusion of identification at post-indictment lineup.
5) If non-trail proceedings, use harmless error analysis.
6) Statements and physical evidence can be used for impeachment, BUT NOT case in chief.

Question 28

Ineffective assistance of counsel

Answer 28

1) deficient performance
2) prejudice to defendant’s case.
* Conflict of interest: actual conflict + adverse effect.

Question 29

NY: ineffective assistance of counsel

Answer 29

1) defendant did not receive “meaningful representation”
2) conduct was “egregious and prejudicial error”
3) but for deficiency, result would have been different.

Question 30

Admissible of lineup IDs

Answer 30

1) Impermissibly suggestive?
2) If so, nonetheless reliable?
- opportunity to see defendant at crime scene.
- degree of attention at crime scene.
- accuracy of pre-ID description.
- level of certainty.
- length of time.

• If no to (1) and (2) above, then:
• out of court ID inadmissible.
• in court ID admissible ONLY IF prosecutor can show by clear and convincing evidence that ID was based on things other than the lineup.
• If lineup ID wrongfully admitted, then harmless error analysis.

Question 31

Two ways to bring charges

Answer 31

Indictment: grand jury finds probable cause.

Information jurisdictions: preliminary hearing on probable cause by magistrate within 48 hours of arrest.

Question 32

NY: bring charges

Answer 32

Defendants in felony cases are entitled to preliminary hearing UNLESS grand jury indicted them already.

Question 33

Grand jury proceedings

Answer 33

1) defendant has no right to present or confront witnesses
2) prosecutor has no duty to present exculpatory evidence.
3) illegally obtained evidence or hearsay is admissible.
4) no right to counsel.

Question 34

NY: grand juries

Answer 34

1) 16-23 people, 12 needed for indictment.
2) evidence must be legally sufficient and admissible at trial.
3) defendants can request to testify BUT must waive immunity.
4) witnesses with total immunity have no right to counsel.
5) witnesses without immunity have right to counsel.

Question 35

Prosecution duty to disclose

Answer 35

• MUST disclose exculpatory evidence (negate guilt OR diminish culpability or punishment).
• Failure is grounds for reversal if:
  1) evidence was exculpatory; AND
  2) prejudice from failure to disclose.

Question 36

NY: Prosecution duty to disclose

Answer 36

Prosecution MUST disclose:

1) all statements of prosecution witnesses related to the testimony.
2) statements of defendant and co-defendants. (if suppressible, then within 15 days of arraignment).
3) all documents, photos, drawings, scientific tests, objects, or tangible things that prosecution intends to use at trial.
* Grounds for reversal if defendant shows that failure to disclose materially contributed to or altered the outcome of the proceeding.

Question 37

Waiver of jury trial

Answer 37

Voluntary + knowing + intelligent + in open court.

Question 38

NY: waiver of right to jury trial

Answer 38

may NOT waive right in first-degree murder case.

Question 39

Jury size and unanimity

Answer 39

Federal: 12 members + unanimous verdict.

State: 6 members + unanimous OR 6+ members + substantial majority.

Question 40

NY: jury size

Answer 40

In felony trials, 12 jurors + up to 4 alternates. Defendant may waive and have 11 jurors.

If misdemeanor, 6 juror + up to 2 alternates.

Question 41

Challenge to jury composition

Answer 41

Defendants must show:

1) distinctive group in community;
2) not fairly represented in venire;
3) resulting in systematic exclusion of that group.

• Prosection rebuttal:
  1) manifestly and primarily advances
  2) a significant government interest.

Question 42

Peremptory challenges

Answer 42

may NOT challenge based solely on race or gender.

• Batson test for race:
  1) moving party shows prima faciae case;
  2) challenged party gives race-neutral explanation;
  3) moving party must show justification is pretextual.

Question 43

Guilty pleas

Answer 43

Judge must first advise defendant:

1) right to trial
2) right to plead not guilty
3) right to counsel
4) elements of charge
5) maximum and minimum sentences
6) waiving right to appeal
7) statements may be used under oath in subsequent perjury action.

Question 44

Right to speedy trial

Answer 44

Factors:

1) length of delay
2) reason for delay
3) assertion of right to speedy trial
4) prejudice to defendant
5) diligence and good faith by court.

• If violated = dismissed with prejudice.

Question 45

NY: right to speedy trial

Answer 45

Felony: 6 months

Class A misdemeanor: 90 days

Class B misdemeanor: 60 days

Violation: 30 days

Question 46

What is testimonial?

Answer 46

= reasonably expected to be used in prosecution, e.g.:

1) affidavit
2) custodial examination
3) prior testimony
4) police interrogation (EXCEPT ongoing emergency)
5) results of lab tests (NY: does not include rape kit tests)

• To admit, must show:
  1) witness unavailable
  2) defendant had prior opportunity to examine.

Question 47

Bruton rule

Answer 47

Admission of the confession of a non-testifying codefendant is NOT allowed.

Question 48

NY: burden of proof for affirmative defense

Answer 48

Insanity, duress, entrapment = preponderance of the evidence.

Question 49

Blockburger tests

Answer 49

• Used to determine if offence is same for double jeopardy:
  1) Does each offence require proof of an element that the other does not?
  2) If not, then lesser included offense and DJ attaches, UNLESS:
• facts necessary to prove greater offense did not become available until after trial.
• prosecution negotiated as part of guilty plea to lesser offence that defendant waive DJ rights for greater offence.

Question 50

NY: double jeopardy

Answer 50

Crimes arising out of single transaction must be tried together UNLESS:

1) each offense has different elements;
2) one concerns possession and the other use;
3) each offense involves death or injury of different victims.

Question 51

When does DJ attach?

Answer 51

Jury trials: when jury is impaneled and sworn.

Bench trials: when first witness is sworn in.

Question 52

Retrial

Answer 52

1) OK after reversal due to trial error.
2) NOT OK after reversal due to insufficiency of evidence.

3) OK after mistrial if there is manifest necessity to declare mistrial:
- judge or juror sickness
- the jury hangs
- defendant moves for mistrial.
- BUT if prosecution moves for mistrial due to inability to locate witness, DJ will attach.

Question 53

What can prosecution appeal?

Answer 53

= any determine not related to innocence:

1) orders dismissing indictments
2) orders suppressing evidence
3) post verdict new trial
4) bail determinations
5) sentences (even more severe is ok).

Question 54

Factors for determining curtilage of home

Answer 54

1) proximity to home
2) whether or not included in enclosure
3) nature of the use
4) steps taken to protect

Question 55

Defendant right to attach warrant

Answer 55

Can show by PoE that affidavit:

1) contained false statements made knowingly, intentionally, or with reckless disregard for truth;
2) false statements were necessary to finding of probable cause.

Question 56

Requirements of wiretapping warrant

Answer 56

1) limited to short time period
2) probable cause
3) name of person(s) involved
4) description of conversations overheard
5) provisions for termination

Question 57

Conditions to administer antipsychotic drugs for competency to stand trial

Answer 57

1) no serious side effects affecting fairness of trial;
2) necessary, no less instrusive method;
3) medically appropriate.

Question 58

NY: prosecutor failure to disclose

Answer 58

Grounds for due process violation if failure had a “reasonable possibility” of contributing to verdict.

Question 59

Violations of 8th amendment

Answer 59

1) recidivist statutes specifying death penalty for non-violent felonies.
2) jail sentence merely for inability to pay fine.
3) failure to admit or review mitigating evidence in death penalty.
4) death penalty in rape cases if victim is woman or child.
5) death penalty in felony-murder case where defendant did not intent deadly force.
6) death penalty for insane people or the mentally retarded.
7) death penalty for person under 18 at time of commission of crime.

Question 60

Death penalty

Answer 60

Statutory scheme MUST provide:

1) clear and objective standards;
2) specific and detailed guidance;
3) opportunity for rational review.

• Aggravating circumstances in homicide crimes must be:
  1) not apply to every defendant convicted of murder;
  2) not unconstitutionally vague.
• sentencing proceed reqts:
  1) channel of limit discretion.
  2) must consider relevant mitigating evidence.

Question 61

Writ of habeus corpus

Answer 61

• Available to defendant in custody, or on probation or parole.
• Civil action. Must show by preponderance of evidence that detention was improper.

Question 62

Sentence enhancements

Answer 62

If fact proved to enhance sentence over statutory maximum, then:

1) must be charged in indictment;
2) proved beyond reasonable doubt;
3) submitted to jury.

NOT applicable to consecutive sentences based on determinations by judge.

Harmless error analysis for violations.

Question 63

5th amendment right to counsel vs. 6th amendment right to counsel

Answer 63

5th : custodial police interrogations.

6th: post indictment