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July 2017 BAR > criminal procedure > Flashcards

criminal procedure Flashcards

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1
Q

what does the fourth amendment protect?

A

protects against unreasonable search and seizures

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2
Q

what does the 5th amendment protect?

A

miranda, self-incrimination, double jeopardy

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3
Q

what does the 6th amendment protect?

A

right to speedy trial
right to counsel
right to jury
right to confront witnesses

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4
Q

what does 8th amendment protect?

A

from cruel and unusual punishment. prisoner rights and death penalty.

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5
Q

what is the exclusionary rule?

A

under the exclusionary rule, evidence obtained from an illegal search or coerced statement cannot be used in any subsequent criminal prosecution.

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6
Q

what are the exceptions to the exclusionary rule?

A
  1. civil proceedings
  2. knock and announce rule.
  3. grand jury proceedings
  4. parole revocation proceedings
  5. Impeachment purposes
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7
Q

what is the fruit of the poisonous tree doctrine?

A

exclude all evidence obtained or derived from police illegality.

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8
Q

does the fruit poisonous tree doctrine apply to miranda violations?

A

no it does not.

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9
Q

what are the three ways that the government can break the chain of evidence?

A

3 iS

  1. Independent source
  2. Intervening acts of free will
  3. Inevitable discovery
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10
Q

Will a conviction be overturned because improperly obtained evidence?

A

Use harmless error test. A conviction will be upheld if the conviction would have resulted despite the improper evidence.

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11
Q

what does the 4th amendment protect?

A

against unreasonable search and seizures

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12
Q

what must an arrest be based on?

A

probable cause

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13
Q

does a non emergency arrest of an individual at his home require an arrest warrant?

A

no

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14
Q

What does a police officer need to make a Terry Stop?

A

reasonable suspicion supported by articulable facts. Look at the totality of the circumstances.

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15
Q

Is a sniff by a police dog a search?

A

No, and it can give rise to probable cause

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16
Q

what are the steps to a search and seizure question?

A
  1. is there governmental conduct?
  2. does the defendant have an expectation of privacy?
  3. is there a valid warrant?
  4. good faith by cops?
  5. exception?
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17
Q

what is governmental conduct?

A
  1. publicly paid police officer
  2. person acting at direction of police
  3. privately paid police deputized with power to arrest
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18
Q

what is a reasonable expectation of privacy?

A
  1. you own the premises searched
  2. you live on the premises searched
  3. overnight guest
  4. if you own the item, you must have a reasonable expectation of privacy to the item being searched
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19
Q

what are the two requirements to a valid search warrant?

A
  1. probable cause

2. particularity

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20
Q

what is the standard for probable cause?

A

a FAIR PROBABILITY that contraband or evidence of a crime will be found in the area search

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21
Q

what is the standard for particularity?

A

the warrant must state with particularity the place to be searched and the things to be seized.

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22
Q

what do we look at when using informant’s information for warrant?

A

totality of the circumstances

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23
Q

when is a no knock entry permitted?

A

if knocking would be dangerous, or there is a concern over destruction of evidence.

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24
Q

what is the good faith exception?

A

an officer’s good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.

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25
Q

what are the four exceptions to the good faith requirement?

A
  1. affidavit was so lacking in probable cause or particularity that reasonable cop could not rely on it.
  2. Police officer or prosecutor lied or misled magistrate
  3. magistrate is biased
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26
Q

what are the exceptions to the warrant requirement?

A
  1. search incident to a lawful arrest
  2. automobile exception
  3. consent
  4. plain view
  5. evanescent evidence
  6. hot pursuit
  7. stop and pursuit
27
Q

during a search incident to a lawful arrest what must the search be?

A

must be lawful and contemporaneous in time and place.

28
Q

what can be searched in search incident to a lawful arrest?

A

the person and area’s within the person’s wingspan.

29
Q

how does a search incident to a lawful arrest work with automobiles?

A

police officer may search the car if unsecured and he can get back in, or police reasonably believe they may find evidence for which the person was arrested in the vehicle.

30
Q

what is the community caretaker exception?

A

justifies a warrantless search if an officer faces an emergency that threatens the health or safety

31
Q

what is the automobile exception?

A

police officer can search the car if they have probable cause. they must have probable cause before searching anything or anybody

32
Q

what can the officer search under the automobile exception?

A

anything that can reasonably contain the item.

33
Q

when must the probable cause necessity arise?

A

before anything or anybody is searched.

34
Q

what is the plain view exception?

A

to constitute a valid plain view seizure the police officer must be legitimately present, it must be immediately apparent that the item is contraband or a fruit of a crime.

35
Q

what does consent have to be?

A

voluntary.

36
Q

what is the legal standard for stop and frisk?

A

reasonable suspicion. may pat down to check for weapons.

37
Q

what is evanescent evidence?

A

evidence that might disappear quickly.

38
Q

what is the hot pursuit theory?

A

they can enter anyone’s home without a warrant, any evidence they see in plain view will be admissible.

39
Q

what is an inventory search?

A

before incarceration, the police may search impounded automobile and personal belingings.

40
Q

under what activity can public school children be randomly drug tested?

A

extra-curricular activities.

41
Q

when is a school search held to be reasonable?

A
  1. moderate chance that evidence of wrongdoing will be found.
  2. method is reasonably related to search.
  3. no overly intrusive.
42
Q

when does miranda apply?

A

custodial interrogation

43
Q

what is the legal standard for custody?

A

a reasonable would not feel free to leave, look at if there are coercive pressures.

44
Q

what is the legal standard for interrogation?

A

any conduct that might illicit incriminating response from the suspect.

45
Q

what must a miranda waiver be?

A

knowing and voluntary

46
Q

how do you invoke the right to remain silent?

A

it must be unambiguous

47
Q

how do you invoke the right to counsel?

A

unambiguous request

48
Q

what is the difference between 5th and 6th amendment?

A

6th amendment is offense specific, 5th amendment applies when defendant invokes his miranda rights

49
Q

what are the two ways you can attack pretrial identification?

A
  1. due process; unduly suggestive

2. denial of the right of counsel; postcharge line up and showups

50
Q

when is bail appealable?

A

immediately

51
Q

when can a prosecutor’s failure to disclose exculpatory information constitute grounds for reversing a conviction?

A
  1. the evidence is favourable to defendant.

2. there is a reasonable probability that the result would have been different had the information been disclosed.

52
Q

when does the constitutional right to jury attach?

A

when the maximum sentence exceeds 6 months.

53
Q

what is the lowest # of jurors

A

6 but if only 6 it has to be unanimous.

54
Q

what is the cross sectional requirement?

A

the jury pool must reflect a fair cross section of the community but doesn’t actually apply to actual empaneled jury.

55
Q

what are the requirements to represent oneself?

A

waiver of counsel must be knowing, intelligent, and competent.

56
Q

what is the exception to the right to confront the witness?

A

there is an important public purpose, or the D is disruptive and has to be removed from the courtroom.

57
Q

what must the judge tell D before accepting guilty plea?

A
  1. maximum penalty, mandatory , minimum
  2. nature of charges
  3. right to plead not guilty and trial
  4. public record
58
Q

what are the reasons for withdrawing a guilty plea?

A
  1. the plea was involuntary
  2. lack of jurisdiction
  3. ineffective assistance of counsel
  4. failure of the prosecutor to keep agreed upon plea bargain.
59
Q

what must a death penalty statute allow for?

A

the D to present mitigating factors, there can be no automatic category for imposition of the death penalty.

60
Q

can a judge determine the aggravating factors justifying the imposition of the death penalty?

A

Nope, only a jury.

61
Q

when does double jeopardy attach?

A

in a bench trial, when the first witness is sworn in.

in a jury trial, when the jury is sworn in.

62
Q

when must you assert the 5th amendment privilege against compelled testimony?

A

the first time the question is asked or you will have waived your firht amendment privilege.

63
Q

what does the fifth amendment protect citizens from?

A

compelled testimony.

64
Q

when can a suspects silence be used against him?

A

if before miranda rights.

July 2017 BAR (13 decks)

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