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Missouri Bar > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

Fourth Amendment

A

Unreasonable search and seizures prohibited

Did suspect have a reasonable expectation of privacy concerning a place or thing

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2
Q

Arrest definition

A

Police take person into custody for interrogation or criminal prosecution. Must be based on
(1) Probable cause

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3
Q

What is probable cause

A

Trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.

VS reasonable suspicion, which doesn’t arise to probable cause, but look at totality of circumstances.

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4
Q

Stop and Frisk Defeinition

A

(1) Reasonable suspicion of criminal involvement
(2) Supported by articulable facts (no hunch)

and if they think they are armed and dangerous (reasoanble belief)
(3) they can frisk.

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5
Q

Automobile Stops Allowed when…

A

(1) reasonable suspicion to believe law violated.

Can stop the car for traffic violation and then investigate other crime

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6
Q

Roadblocks allowed?

A

Yes - when

(1) Stop cars on a neutral standard
(2) designed to serve purposes closely related to a particular problem

considered - seizure of all occupants, police may order people out.

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7
Q

Detention to Obtain Warrant?

A

Allowed - if reasonable time to prevent suspect from destroying evidence

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8
Q

Can you seize someone for grand jury appearance?

A

No

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9
Q

Search and seizure analysis

A

(1) Is there government conduct?
(2) Reasonable expectation of privacy?
(3) Is there a valid warrant based on probable cause and particularity?
(4) If no valid warrant, did they make a valid warrantless search and seizure?

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10
Q

What are reasonable expectations of privacy for fourth amendment rights?

A

(1) Right to possession of the place he’s in
(2) Place searched was his home
(3) Overnight guest of the owner or place searched

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11
Q

How do you get a warrant?

A

Must show

(1) Probable cause
(2) submit to magistrate
(3) affidavit setting forth the facts

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12
Q

Can you use an informant to get a warrant?

A

Yes - but must also show “totality of the circumstances” - ie affidavit may be sufficient even though credibility of informant not established

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13
Q

Search warrant invalid if D can show

A

(1) False statement
(2) Intentionally or wrecklessly included false facts
(3) Material to finding probable cause

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14
Q

Can police still rely on warrant if it was not supported by probable cause?

A

Yes - only if reasonably relied on facially valid warrant, despite a later finding it lacked probable cause

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15
Q

Does warrant have to be precise?

A

Yes - reasonable precision to the place searched and items being seized

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16
Q

How do police execute a warrant once they are at the scene?

A

Knock and announce rule

Even if they don’t properly knock and announce, it will not result in suppression of evidence found

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17
Q

What are the six valid warrantless searches?

A

(1) Search incident to arrest
(2) Automobile exception
(3) Plain view
(4) Consent
(5) Stop and Frisk
(6) Hot pursuit/Emergency Aid

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18
Q

What are allowable searches incident to arrest

A

(1) must be contemporaneous in time an dplace with the arrest
(2) no cell phones
(3) automobiles (if probable cause to believe it contains fruits of contraband)
(4) DNA Swab if it was a serious offense

NO CELLPHONES

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19
Q

When can police search an automobile?

A

Probable cause to believe vehicle contains fruits, instrumentalities or evidence of a crime. How much probable cause to search just a compartment (wingspan) vs. the whole damn thing.

But again look at the whole picture - if guy was speeding and they arrest him - probably don’t have probable cause to believe the vehicle contains other fruits.

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20
Q

When is Plain view search allowed?

A

(1) Officer legitimately on premises

(2) evidence is in plain view

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21
Q

When is consent search allowed?

A

If the occupant has apparent authority.

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22
Q

When is a stop allowed?

A

Need not have probable cause - only need reasonable suspicion

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23
Q

When is a frisk allowed?

A

Only if officer stops and then has reasonable belief that suspect has a weapon

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24
Q

What administrative searches OK without a warrant?

A

(1) seize spoiled/contaminated food
(2) highly regulated business
(3) Inventory searches
(4) Admitted to prison
(5) Drug tests
(6) Airplane passengers
(7) Government employees

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25
Q

Is probable cause needed for search of student at public school?

A

NO - only reasonable suspicion

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26
Q

Wiretap Elements

A

(1) probable cause
(2) suspected persons named
(3) describes conversations that can be overheard
(4) limited in time
(5) terminated once info obtained
(6) return made to the court

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27
Q

Fourthteenth Amendment to Confessions requires

A

(1) Voluntariness

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28
Q

Sixth Amendment Right to Counsel guarantees…

A

right to counsel in all criminal proceedings AFTER FORMAL CHARGES FILED

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29
Q

Fifth Amendment Right to Counsel guarantees…

A

right to counsel BEFORE FORMAL CHARGES FILED

30
Q

When do you NOT have right to counsel

A

(1) blood sampling
(2) handwriting/voice examples
(3) precharge investigative lineup
(4) photo identification
(5) prelim hearing to determine probable cause to detain
(6) Discretionary appeals
(7) Parole revocation proceeding
(8) Post conviction proceedings

31
Q

Can you still use statements by suspect if statement obtained in violation of sixth amendment?

A

YES - but only to impeach

32
Q

Miranda Warning required to…

A

admit an admission or confession

33
Q

Miranda warning requires that a suspect IN CUSTODY be informed

A

(1) right to remain silent
(2) anything he says can be used against him in court
(3) Right to an attorney
(4) If he cannot afford one, one will be appointed

This only goes to fifth amendment rights, not sixth.

34
Q

How do you know if suspect in custody for purposes of requiring Miranda?

A

(1) Whether free to terminate and leave

(2) Same inherently coercive pressures as being in the station

35
Q

Admissibility of D’s Statements Analysis

A

(1) Were D’s statements voluntary?
- If yes, keep going
- If not, inadmissible
(2) Was D in custody?
- If yes, keep going
- If no, admissible
(3) Made in response to police interrogation?
- If yes, keep going
- If no, admissible
(4) Miranda Warnings given?
- If yes, keep going
- If no, inadmissible
(5) Knowingly and voluntarily waive remain silent and attorney requirement?
- If yes, admissible
- If no, inadmissible

36
Q

What options does D have after waiving Miranda?

A

(1) Do nothing
(2) Waive rights
(3) assert right to remain silent (MUST assert or police can keep questioning)
(4) assert right to counsel

37
Q

Difference between asserting counsel right versus asserting right to remain silent

A

If remain silent - police can keep questioning about a different crime
If counsel - NO questioning can go on

38
Q

How can evidence obtained be used if Miranda not given?

A

(1) if it was intentional - not admissible

(2) if inadvertent and subsequent warning given then a new confession - then can come in

39
Q

Exclusionary Rule

A

Judge-made doctrine that prohibits intro of evidence obtained in violation of D’s fourth, fifth and sixth amendment rights - and all fruits of the poisionous tree prohibited

40
Q

Exceptions to Exclusionary Rule

A

(1) Fruits derived from Miranda violation
(2) Source independent of the original illegality
(3) Act of free will (decides to come back and confess)
(4) Inevitable discovery
(5) Violations of knock and announce

41
Q

Limitations to Exclusionary Rule

A

(1) Inapplicable to grand juries
(2) Good faith reliance on defective warrant/clerical error
(3) impeachment purposes - can use an otherwise voluntary confession taken in violation of Miranda or evidence obtained from an illegal search to IMPEACH.

42
Q

Harmless Error Test

A

Illegal evidence admitted, conviction MUST be overturned UNLESS government can show beyond a reasonable doubt the error was harmless.

NEVER applies to denial of right to counsel

43
Q

Right to a speedy trial

A

Look at totality of circumstances.

RIGHT DOES NOTARISE UNTIL ARRESTED OR CHARGED

44
Q

Must disclose exculpatory evidence to D?

A

YES - D must show

1) Evidence is favorable
(2) prejudice resulted (reasonable probability result would have been different

45
Q

Insanity versus Incompetency

A

Insanity - mental condition at time crime was committed (cannot be tried).
Incompetency - not a defense to a charge, but a bar to stand trial - mental condition at time of the trial (can be tried once competent).

46
Q

Pretrial and trial ok to be public?

A

Yep - even when P or D’s objection - even televise over an objection.

47
Q

When do you have right to jury trial?

A

Serious crimes only - at least 6 months jail. That means no right to jury for civil proceedings.

48
Q

How many jurors for minimum?

A

At least 6 - then it must be unanimous

49
Q

Voir Dire Limitations

A

Cannot challenge base on race or gender (except can question to racial prejudice when race involved in case or interracial capital crime).

50
Q

When can you reverse for failure to abide by right to counsel?

A

Violation of this right at trial - requires reversal

Violation at nontribal - apply harmless error test

51
Q

Self representation elements

A

(1) waived
(2) knowingly and intelligently
(3) competent to proceed pro se
(4) Judge OKs

NO right on appeal

52
Q

Proving Deficient Counsel

A

(1) Deficient counsel

(2) But for the deficiency, outcome would have been different

53
Q

When is a co-defendants admission against his co-defendant admissible?

A

Not admissible - unless

(1) Reference to other co-D eliminated
(2) confessing D takes the stand , or
(3) rebut claim it was obtained coercively

54
Q

Burden of proof standard for criminal case

A

State must prove guilt beyond a reasonable doubt

55
Q

Elements to take a plea deal

A

(1) must be in open court, on record
(2) maximum possible penalty/mandatory minimum
(3) has right to not plead guilty
(4) pleading guilty waives right to jury trial

Judge does not have to explain each charge if record shows attorney did

56
Q

Death Penalty Statute limitations

A

(1) No automatic category for death penalty
(2) Must allow D to present mitigating facts
(3) Statute cannot be vague
(4) Only a jury, not judge, can determine if it will be applied

57
Q

Sanity Requirement (death penalty)

A

Must be sane at execution - cannot execute even if sane at crime but insane at execution

58
Q

Is there a right to appeal?

A

NO

59
Q

When does double jeopardy attach?

A

Jury trial - when jury sworn in
Bench trial - first witness sworn
If D Breaches - plea deal can be withdrawn and original charges reinstated

60
Q

What is double jeopardy?

A

D charged with two crimes based on the same conduct

61
Q

Double jeopardy analysis

A

Is D charged with two crimes on same conduct?
Did legislature intend to allow conviction of both crimes?
Does each crime require proof an additional fact that the other does not?

62
Q

Does double jeopardy bar retrial for both lesser and greater offense?

A

YES

63
Q

Does double jeopardy prevent trial of civil suit?

A

NO - DJ only applies to repetitive criminal prosectuions

64
Q

Does double jeopardy prevent same trial by different sovereigns?

A

NO - can be tried by state and fed, two states, but not state and municipalities.

65
Q

When can criminal D invoke privilege against compelled self-incrimination

A

In criminal case - right to not take stand and not be asked to do so.

IN ALL OTHER CASES - must be sworn in, listen to each question, and then plead privilege.

66
Q

What does fifth amendment protect?

A

Protects against ONLY testimonial evidence.

Cannot use it for real/physical/document evidence.

67
Q

When can D’s silence be commented on?

A

(1) Silence before Miranda read

(2) D’s counsel asserts D never had chance to explain his side of the story

68
Q

If Prosecutor comments on D’s silence, then…

A

Use harmless error test

69
Q

What rights must be given to suspect in juvenile proceeding?

A

(1) assistance of counsel
(2) opportunity to confront
(3) right not to testify
(4) guilt proved beyond reasonable doubt

70
Q

Right to hearing for personal and real property?

A

Personal property - not until final forfeiture

Real property - yes before seizure unless justifiable for immediate seizure

71
Q

Excessive fines clause applies to

A

penal forfeitures, not civil forfeitures

Missouri Bar (15 decks)

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