criminal procedure

Question 1

Exclusionary rule

Answer 1

a remedy of American constitutional procedure whereby someone who has been the victim of illegal search or a coerced confession can have the product of that illegal search or coerced confession excluded from any subsequent criminal prosecution

Question 2

Limitations on exclusion
Doesn’t apply to __ proceedings

A grand jury witness may be
compelled to testify based on __ evidence

not an available remedy in __

not an available remedy in __

doesn’t apply to the use of excluded
evidence for ___

not an available remedy for violations
of the __in the execution of search warrants

Answer 2

grand jury proceeding

illegally seized

civil proceedings

parole revocation

impeachment of D’s testimony

“knock and announce” rule

Question 3

fruit of poisonous tree
exclude all evidence obtained or derived
from __

doesn’t apply to __ unless the police
acted __ in obtaining the info

break the chain 3 I’s

Answer 3

police illegality

Miranda violations; bad faith

Independent source; Inevitable discovery; Intervening acts of freewill by D

Question 4

exclusionary rule & convictions

test applied by courts

Answer 4

harmless error test; a conviction will be upheld if the conviction would have resulted despite the improper evidence

Question 5

4th Amend.

Answer 5

Protects citizens from UNREASONABLE searches & seizures

Question 6

arrests & detentions
arrest must be based on __

arrest warrant not required if
arresting person in a __

non emergency arrest in __
DOES require a arrest warrant

Police need probable cause to arrest
You and compel you to come to the
Police station either for __or__

Answer 6

probable cause

public place

the home

fingerprinting or interrogation

Question 7

Investigatory detentions (terry stops)
Briefly detain a person police must have
__ supported by ___ of criminal activity

reasonable suspicion depends on __

police may stop a car if they have at
least __that the law has been violated

Answer 7

reasonable suspicion; articulable facts

totality of the circumstances

reasonable suspicion; exception Checkpoint roadblocks (DUI and borders)

Question 8

traffic stops and dogs
during routine stop, a __ is NOT a __
so long as it doesn’t extend the stop beyond
the time necessary to issue a ticket

Answer 8

sniff; search; a dog alert to the presence of drugs can form the basis for probable cause for a search; CANNOT use a dog directly outside the home of suspected drug dealer

Question 9

search & seizure

5 step analysis?

Answer 9

Governmental conduct; reasonable expectation of privacy; did police have valid warrant?; if invalid, does officer have a good faith defense?; exception to warrant requirement

Question 10

governmental conduct

includes publicly paid police (on or off
duty) and __ acting at the direction of the
public police

do NOT constitute governmental conduct
unless they are __ (ie. ___)

Answer 10

private individual

deputized with the power to arrest; store security guards, subdivision police, campus police

Question 11

reasonable expectation of privacy?
STANDING

3 automatic categories of standing

1 sometimes standing category

9 no standing categories (no standing for
anything you hold out to the public)

Answer 11

own the premises searched; live on the premises searched; an overnight guests

if you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched

voice; handwriting; paint on outside of car; bank account records; monitoring location of your car on public street or driveway; anything that can be seen across the open fields; anything that can be seen from flying over in the public airspace; odors from car or luggage; garbage on the curb

Question 12

did the police have valid search warrant?
2 core requirements

probable cause definition
particularity defined

Answer 12

probable cause & particularity

a fair probability that contraband or evidence of a crime will be found in the area searched

must state the place to be searched and the things to be seized

Question 13

warrants & informants
sufficiency of police affidavit or
probable cause based on informant
info is determined by __

an informant’s __ and _ are relevant
factors

a valid warrant can be based IN PART
on an informant’s tip though the
informant is __

Answer 13

totality of circumstances

credibility; basis of his knowledge

anonymous

Question 14

no knock entry permitted in the
execution of search warrants if

biggest fear is

Answer 14

knocking and announcing would be dangerous, futile, or inhibit the investigation

destruction of evidence

Question 15

if invalid warrant, does an officer’s
good faith defense save it?
General rule

4 exceptions

Answer 15

good faith reliance on a search warrant overcomes the defects

the affidavit underlying the warrant is so lacking in probable cause no reasonable officer would have relied on it; particularity; police or prosecution lied or misled the judge; judge was biased

Question 16

exceptions to warrant requirement

search incident to arrest

Answer 16

arrest must be lawful; arrest and search must be contemporaneous in time and place; can search the person and the areas within his wingspan

Question 17

Gant rule search incident to arrest &
Cars police may search the interior of car ONLY if:

So long as search itself is valid
ANY contraband found will be admissible

Answer 17

arrestee is unsecured & still may gain access to the interior of car OR police reasonably believe that evidence of the offense for which the person was arrested may be found in the car

Question 18

Community caretaker exception

Cell phone need a warrant!

Answer 18

“emergency aid exception”; most states recognize this; justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public

Question 19

Automobile exception
Requires __

Can search the entire car including trunk
May open any package, luggage or other container
Which could __ they had probable cause to look
For whether that package luggage or other
Container is owned by the passenger or the driver

Probable cause can arise __ the stop BUT must
Arise before__

Answer 19

probable cause

reasonably contain the item

after; anyone or anything is searched

Question 20

Plain view

2 requirements

Answer 20

police must be legitimately present at the location where he does the viewing of the item seized AND it must be immediately apparent that the item is contraband or fruit of crime

Question 21

Consent must be __

Third party consent
2 people one doesn’t consent they __

if person who doesn’t consent is __ for a
reason unrelated to the refusal the police may search
upon consent of the other occupant

Answer 21

voluntary

control

removed from premises

Question 22

stop and frisk
a terry stop is a __

legal standard is

terry frisk is a __ of the outer clothing & body
to check for weapons

if officer reasonably believes by the plain feel
something is a weapon or contraband then it
will be admissible

if probable cause arises during an investigatory
stop the detention can become __and the officer
could then conduct a full search incident to arrest

Answer 22

brief detention for the purpose of investigating suspicious conduct

reasonable suspicion

pat down

arrest

Question 23

auto stops: if a vehicle is properly stopped for a
traffic violation & officer reasonably believes that a driver
or passenger may be armed & dangerous officer may
__ of the suspected person and may __so long as it is limited
to the areas in which a weapon may be placed

Answer 23

conduct a frisk; search the car

Question 24

evanescent evidence

hot pursuit
rule of thumb

inventory searches

Answer 24

evidence that might disappear quickly if police took the time to get a warrant

police not w/in 15 mins behind the fleeing felon not a valid hot pursuit; any evidence they see in plain view will be admissible

arrestee’s personal belongings and the entire car (including closed containers)

Question 25

public school searches
children engaged in __can be randomly drug
tested

warrantless searches of children’s __is permissible
to investigate violations of school rules

3 requirements to be held reasonable

Answer 25

extracurricular activities

effects (backpacks, purses)

offers a moderate chance of finding evidence of wrongdoing; measures adopted are reasonably related to the objectives of the search and search is not excessively intrusive

Question 26

wiretapping & eavesdropping

exceptions: unrealiable ear & uninvited ear

Answer 26

all wiretapping & eavesdropping require warrant

assume the risk that person speaking with consent to monitoring or is wired; no 4th A right if she makes no attempt to keep the conversation private

Question 27

confessions
Miranda rights triggers

Custody

Interrogation

Answer 27

custodial interrogation

at time of interrogation, a reasonable person wouldn’t feel free to leave; court determine whether the situation presents the same inherently coercive pressures as station house questioning

any conduct where the police knew or should have known that they might illicit an incriminating response from the suspect

Question 28

Miranda warnings not required prior to
Admissibility of __

Miranda waiver requirements

Answer 28

spontaneous statement

knowingly and voluntarily; court will employ totality of circumstances test

Question 29

Invoking Miranda rights
Right to remain silent

Right to counsel

Answer 29

must be unambiguous; police may reinitate after a significant amount of time, D is remirandized and the questions are limited to a crime that was not the subject of the earlier questioning

unambiguous; questions stop immediately until given lawyer or D reinitiates questioning; if break in custody then police can ask D to waive Miranda rights after 14 days

Question 30

5th amendment counsel & 6th amendment
5th amendment arises when suspect invokes his __

5th amend is NOT offense specific and applies _
6th amend IS offense specific and atty only need be
present during __

Answer 30

Miranda rights

to entire process of custodial police interrogation

questions about the specific case; D can waive 6th amend right to counsel when given appt counsel and then talk to them about the crime for which he was charged

Question 31

pretrial identification
2 substances bases to attack

denial of right to counsel –

no right to counsel in these 6 stages

denial of due process- pretrial techniques are
so __ and so substantially likely to produce a
__ they deny due process

remedy

Answer 31

denial of right to counsel or denial of due process

post charge lineups and showups require counsel

taking of blood, handwriting, pre-charge lineups, brief recess during D’s testimony at trial, parole & probation revocation proceedings, fingerprinting

unnecessarily suggestive; misindentification

exclude unless the state can show that it has an adequate indep. Source for that in-court identification (adequate opportunity to observe D at the time of the crime)

Question 32

pre-trial procedures
bail issues are __

grand juries are __ D has no right to (2)

brady doctrine

Answer 32

immediately appealable

secret; no right to appear and no right to send in witnesses

evidence is favorable to D and prejudice has resulted meaning there is a reasonable probability that the result would have been different had the information been disclosed

Question 33

trial
right to unbiased judge

right to jury trial when

number and unanimity of jury

cross sectional req

right to counsel
criminal D has right to counsel applies to all
__ of prosecution

Answer 33

no financial interest or actual malice

maximum authorized sentence exceeds 6 months

minimum 6 (unanimous); 12 doesn’t have to unanimous

jury pool reflect a fair cross section not the impaneled jury

critical stages

Question 34

ineffective counsel rule

right to self representation

right to confront witnesses exceptions

Answer 34

must be deficient performance by counsel and but for that deficiency there is a reasonable probability that the result of proceeding would have been different; must specify particular errors

must be knowingly and intelligent and he is competent to proceed pro se (discretion of judge)

when preventing such confrontation serves an important public purpose and the reliability of the witness testimony is otherwise assured; or D is disruptive and removed

Question 35

guilty pleas
general rule:

judge must address with D 4 things

4 good bases for withdrawing guilty plea
after sentencing

Answer 35

court wont distrurb guilty pleas after sentencing

nature of the charge; max penality, any mandatory minimums, right not to plead & demand a trial, all of this must be on the record

plea was involuntary; lack of jurisdiction; ineffective assistance of counsel; failure of P to keep an agreed upon plea bargain

Question 36

death penalty
D must be able to present __

Can be NO __ for imposition of death penalty

Only a __ may determine aggravating factors

Answer 36

mitigating evidence

automatic category

jury

Question 37

Double jeopardy
Attaches in jury trial at __

Attaches at bench trial at __ first witness

Jeopardy doesn’t generally attach when the
Proceedings are

Exceptions permitting retrial hung jury;

When D breaches a plea bargain agreement
His plea and sentence can be withdrawn and the __

Two crimes don’t constitute same offense if each
Crime requires __that the other doesn’t

Being put in jeopardy for a greater offense __
For any lesser included offense (and vice versa)

Separate sovereigns

Answer 37

jury is sworn

is sworn

civil

manifest necessity; successful appeal

original charges reinstated (continues for every subsequent trial)

additional elements

bars retrial; exception charged battery victim later dies can be charged with murder

double jeopardy bars retrial for the same offense by the same sovereign

Question 38

5th amendment compelled testimony
can be asserted in any type of case
you must assert it the __time or it is __
must be claimed in __ to prevent the privilege
from being waived in later __prosecution
protects against __ NOT government use of __

prosecutor cannot make a negative comment on
D’s ___ after being given Miranda warnings

Silence BEFORE Miranda CAN be used against D

Standard applied?

5th am privilege eliminated in 3 ways:

Answer 38

first time; waived

civil; criminal

compelled testimony; physical evidence in ways to incriminate them (voice, hair, blood, handwriting)

failure to testify; choosing to remain silent
P can comment if D asserts not being allowed to explain
His side of the story

harmless error

immunity; no possibility of incrimination (run of statute of limitations); waiver (D takes the witness stand so subject to x-exam)