criminal procedure Flashcards
Exclusionary rule
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
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
grand jury proceeding
illegally seized
civil proceedings
parole revocation
impeachment of D’s testimony
“knock and announce” rule
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
police illegality
Miranda violations; bad faith
Independent source; Inevitable discovery; Intervening acts of freewill by D
exclusionary rule & convictions
test applied by courts
harmless error test; a conviction will be upheld if the conviction would have resulted despite the improper evidence
4th Amend.
Protects citizens from UNREASONABLE searches & seizures
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__
probable cause
public place
the home
fingerprinting or interrogation
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
reasonable suspicion; articulable facts
totality of the circumstances
reasonable suspicion; exception Checkpoint roadblocks (DUI and borders)
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
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
search & seizure
5 step analysis?
Governmental conduct; reasonable expectation of privacy; did police have valid warrant?; if invalid, does officer have a good faith defense?; exception to warrant requirement
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. ___)
private individual
deputized with the power to arrest; store security guards, subdivision police, campus police
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)
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
did the police have valid search warrant?
2 core requirements
probable cause definition
particularity defined
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
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 __
totality of circumstances
credibility; basis of his knowledge
anonymous
no knock entry permitted in the
execution of search warrants if
biggest fear is
knocking and announcing would be dangerous, futile, or inhibit the investigation
destruction of evidence
if invalid warrant, does an officer’s
good faith defense save it?
General rule
4 exceptions
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
exceptions to warrant requirement
search incident to arrest
arrest must be lawful; arrest and search must be contemporaneous in time and place; can search the person and the areas within his wingspan
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
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
Community caretaker exception
Cell phone need a warrant!
“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
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__
probable cause
reasonably contain the item
after; anyone or anything is searched
Plain view
2 requirements
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
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
voluntary
control
removed from premises
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
brief detention for the purpose of investigating suspicious conduct
reasonable suspicion
pat down
arrest
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
conduct a frisk; search the car
evanescent evidence
hot pursuit
rule of thumb
inventory searches
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)
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
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
wiretapping & eavesdropping
exceptions: unrealiable ear & uninvited ear
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
confessions
Miranda rights triggers
Custody
Interrogation
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
Miranda warnings not required prior to
Admissibility of __
Miranda waiver requirements
spontaneous statement
knowingly and voluntarily; court will employ totality of circumstances test
Invoking Miranda rights
Right to remain silent
Right to counsel
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
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 __
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
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
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)
pre-trial procedures
bail issues are __
grand juries are __ D has no right to (2)
brady doctrine
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
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
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
ineffective counsel rule
right to self representation
right to confront witnesses exceptions
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
guilty pleas
general rule:
judge must address with D 4 things
4 good bases for withdrawing guilty plea
after sentencing
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
death penalty
D must be able to present __
Can be NO __ for imposition of death penalty
Only a __ may determine aggravating factors
mitigating evidence
automatic category
jury
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
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
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:
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)
