Criminal Procedure Flashcards
Right to Counsel 5th and 6th Amendments
Prior to being charged the Defendant must clearly and unambiguously ask for his lawyer. Once he does all questioning must stop. [5h Amendment]
After Defendant has been charged the right to counsel automatically attaches and lasts until trial ends. [6th Amendment]
Exam tip: MBE likes to test separate crimes where 6th has been in effect for the first crime, but not a subsequent crime. Then cops will question defendant w/o his lawyer about the subsequent crime. This is not a violation of 6th.
Applies to state actors and agents of state actors.
Evidence obtained through a passive informant (only listening) does not violate either one.
Waiver of Miranda Rights
A defendant may knowingly, voluntarily, and intelligently waive her Miranda rights. If person does not expressly invoke right to remain silent and then makes an uncoerced statement to police after rights were read and understood, a valid waiver will exist.
Search and Seizure - 3rd party Consent
A third party’s consent to a search is not invalid because he lacks the authority to consent, so long as the police reasonably believe that he does have such authority.
5th Amendment Right against Self-Incrimination
- Must be expressly invoked to appeal violation of it.
- Applies only to individuals, not to corporations.
- Applies only to testimonial evidence, not to voluntarily prepared business papers.
- Applies only to evidence that might incriminate the defendant in future criminal proceedings, not civil.
- In MI it does not apply to degree hearings.
Jury Proceedings
General note: it is not a trial to determine guilt or innocence it is a trial to determine if charges should be brought or to issue a warrant.
- Not incorporated to the states through the 14th.
- Defendant has no right to present or confront witness.
- Double jeopardy does not attach to GJ proceedings
- Cannot discriminate on grounds of race when determining members of grand jury. Discrimination = reversal of indictment
- hearsay ok, illegal wiretaps not.
- secretive proceeding so all information discussed at GJ is confidential.
4th Amendment Search and Seizure - General Rule
- Rule: People have a right against unreasonable searches and seizures of themselves, homes, or property. Places where person would have a reasonable expectation of privacy.
- Applicability: Applies to gov. agents and private persons acting on behalf of gov. agents.
Double Jeopardy
A person cannot be prosecuted for the same offense after an acquittal or conviction. Nore can they be punished for the same offense multiple times.
Under Blockburger test a crime is NOT the same offense if it requires a different proof element than the one defendant was acquitted/convicted/punished for.
Jeopardy protection attaches at trial, when the jury or first witness is sworn in.
Pre-trial hearings do not activate Jeopardy.
4th Amend. Search Warrant Requirements
A valid search warrant must be (1) issued by a neutral and detached magistrate (2) based on probable cause, (3) must be supported by oath or affidavit, (4) and must describe the places to be searched (5) and the items to be seized.
4th Amend. - What is a Search
Any place where person would have a reasonable expectation of privacy.
Protected Locations:
(1) Home and
(2) curtilage surrounding the home.
- –4 factor test: (a) proximity to home, (b) included within enclosure surrounding home, (c) nature and use of area, (d) steps taken by resident to protect observation
(3) Motel Room [w/o consent of renter]
(4) luggage [no feeling it up to determine contents]
(5) business premises
(6) overnight guest (legal purpose)
Plainview Doctrine
any evidence of a crime, instrumentalities or fruits of a crime, or contraband found in plain view while properly executing the warrant, whether or not specified in the warrant, may be seized.
Preliminary Hearings
A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within 48 hours of the defendant’s arrest. There is no need to hold a preliminary hearing if probable cause has already been determined through a grand jury indictment or an arrest warrant.
4th Amend. Arrest and Seizures
- Rule: An arrest or seizure occurs when a cop restricts a person’s movement by physical force or show of authority.
- Test: Would a reasonable person feel free to disregard the officer.
4th Amend Auto Search
Cops must have an articulable and reasonable suspicion of any violation to stop a car.
- Checkpoints are ok if they are NOT random, have a neutral and articulable standard, and its purpose is closely related to cars. Sobriety checks ok, checks for drugs are not.
- Random checks w/o reasonable suspicion are ok when near the border of USA and are only ok for immigration checks
4th Amend. What is NOT a search
SCOTUS has held that people do NOT have an expectation of privacy in:
(1) Car VIN, (2) Abandoned Property, (3) Prison (4) DNA and blood testing (5) open fields (6) gov. informants
Thus, no warrant is need for the above.
Exceptions to warrant requirement - Search Incident to a lawful arrest.
A warrantless search is valid if it is reasonable in scope and if it is made incident to a lawful arrest.
Chimel standard - can search the person arrested and the immediate surrounding area (wingspan) which a weapon may be concealed.
Eye Witnesses
he Sixth Amendment right to counsel does not apply to any pre-indictment eyewitness identification. This identification was pre-indictment and therefore the motion to suppress should be denied.
Proper Arrest - Cop with valid arrest warrant arrested crook at girlfriend’s house. Can crook be set free?
No. An illegal arrest does not prevent the subsequent prosecution of the person who is illegally arrested.
It DOES prevent evidence seized during the arrest from being presented at trial.
Use and derivative-use
“Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness. A witness cannot be compelled to provide potentially incriminating testimony unless the witness is granted use and derivative-use immunity.
A witness called to appear before a grand jury may invoke her Fifth Amendment privilege against self-incrimination in response to questions posed by the grand jury or the grand jury’s prosecutor.
Miranda warnings
An individual must be in custody to necessitate Miranda warnings. “Custody” requires the existence of conditions that would cause a reasonable person to believe that he is not free to leave.
A “Terry stop”
A “Terry stop” is a short detention of based on reasonable suspicion of articulable facts that detainee was involved in some criminal activity.
Cruel and unusual punishment - Sentencing of Minors
A sentence of life imprisonment without the possibility of parole constitutes “cruel and unusual punishment” under the Eighth Amendment when the sentence is imposed for a non-homicide crime on a defendant who was a minor at the time that the crime was committed.
Two police officers stopped a car for a minor traffic violation. While one of the officers dealt with the driver and the traffic violation, the other officer ordered the passenger out of the car. As the passenger exited the car, the officer saw a bulge in the passenger’s, coat that the officer suspected might be a gun. A pat down of the passenger revealed a gun. Can the gun be admitted to evidence?
Yes. The traffic violation gave the police officers a valid reason for stopping the car. As part of the stop, the police officer could order the passenger to exit the vehicle.
Pressure to bargain
A defendant’s plea made in response to the prosecution’s threat to bring more serious charges does not violate the protection of the Due Process Clause against prosecutorial vindictiveness, at least when the prosecution has probable cause to believe that the defendant has committed the crimes.
Exclusionary rule - “Fruit of the Poisonous Tree”
Evidence that is unlawfully seized due to a 4th Amendment violation is excluded from trial. Applies to criminal trials only.
Defective Warrant - Good Faith Reliance Exception
Evidence seized pursuant to a defective warrant can be admissible if officer had good faith basis for relying on it. This exception covers police negligence but not deliberate police misconduct.
search of an automobile incident to arrest
requires that law enforcement demonstrate either (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle.
mistrial-A hung jury constitutes a manifest necessity
Where a mistrial is declared despite the defendant’s opposition, the defendant cannot be retried unless the mistrial is due to a manifest necessity. A hung jury constitutes a manifest necessity.
Cop pulls over car for expired tags, but when gets close to car notices current tags in window, but still detains driver and passenger. then arrests passenger for outstanding warrants. is arrest valid?
While the police officer had probable cause to stop the car based on the expired registration tag, once the officer gained the knowledge that the car was properly registered, the officer lacked reasonable suspicion to further detain the driver of the car for a car-related violation.
Search of unnamed persons in warrant
Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification.
Knock and Announce Rule
Failure to “knock and announce” rule may invalidate an arrest, but the it does not trigger the exclusionary rule with respect to evidence discovered.
Police Checkpoints
- Generally, stopping a car at a checkpoint w/o reasonable suspicion will not violate constitution if:
(a) There is specific and neutral purpose
(b) All cars are stopped
(c) the purpose relates to cars - Immigration:
(a) Near border or functional equivalent - random stops allowed w/o reasonable suspicion of wrongdoing.
(b) Away from border-All cars must be stopped and need reasonable suspicion of wrongdoing. - Search for Witnesses:
(a) A checkpoint for the purpose of finding witnesses, rather than suspects, is not per se unreasonable.
Search
A search occurs when government violates a person’s reasonable expectation of privacy.
Expectation of Privacy in: Homes, hotel room, offices, curtilage of home, luggage.
No expectation of privacy in: Public streets, open fields, garbage cans left on street, abandoned property.
Warrant requirement
Three requirements for a valid search warrant:
1. must be issued by a neutral magistrate.
- must be based on probable cause that the items sought are either related to the crime or fruits of it.
- must describe place and property to be searched with particularity.
Seven E.S.CA.P.E.S of Warrant Requirement
Exigent Circumstances Search incident to arrest Consent Automobiles Plain View Evidence obtained from administrative search Stop and Frisk
Exigent Circumstances
- Officers can secure premises while waiting on warrant to prevent destruction of evidence.
- In “hot pursuit”
- To avoid immediate danger to themselves or others
Guilty Plea - Waiver of trial by jury
To be constitutional the waiver must be knowing and intelligent and the judge must personally advise the defendant of:
(1) the defendant’s right to trial (and that a plea of guilty waives that right);
(2) the critical elements of the charge(s); and
(3) the maximum sentence possible.
Omission of any of these three elements renders the plea involuntary.
MI Distinction Note: 5th Amd., Self-incrimination protection does not apply to degree hearings, that is apart of the plea process.
On-scene ID of suspect
SCOTUS & MI permits on-scene identification. SCOTUS held that right to counsel does not attach until suspect is charged.
