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Criminal Procedure Flashcards

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1
Q

Do you have standing if you owned the property seized?

A

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

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2
Q

What are the categories of automatic standing?

A

(1) when you own the premises searched
(2) you live on the premises searched
(3) you are an overnight guest at the premises searched

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3
Q

Do you need to have standing to challenge a search?

A

Yes.

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4
Q

When is Government conduct satisfied for purposes of a constitutional challenge in the context of the fourth and fifth amendments?

A

Government conduct is necessary to implicate the Fourth Amendment: It is satisfied by:

(1) the public paid police
(2) any private individual acting at the direction fo the public police
(3) privately paid police when deputized with the power to arrest you: (a) store security guards; (b) subdivision police; (c) campus police

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5
Q

Are pre-textual stops unlawful?

A

No. An officer’s ulterior motive for stopping a care is irrelevant so long as the stop was legal

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6
Q

May an officer lawfully order the occupants of a lawfully stopped vehicle to leave the vehicular?

A

Yes.

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7
Q

What are the criteria necessary for a DWI checkpoint to be consititutional?

A

will be constitutional as long as neutrally applied to all cars stopped

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8
Q

Is it constitutional for law enforcement to set up an informational roadblock?

A

if police set up a roadblock for purposes other than seeking incriminate information about the driver stopped, the roadblock will be constitutional

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9
Q

If a car is pulled over by the police, who has been seized?

A

an automobile stop constitutes a seizure of all occupants

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10
Q

Does the use of a drug/explosive sniffing dog in the doorway of a home constitute a search?

A

Yes. the police, without probable cause, cannot use a drug sniffing dog outside of the home of a suspected drug dealer

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11
Q

Does the use of a drug/explosive sniffing dog around a vehicle constitute a search?

A

Generally, no. During routine traffic stop, a sniff is not a search so long as the police do not extend the stop longer than the time needed to issue a ticket or conduct further inquiries

A dog alert to the presence of drugs can form the basis for probable cause for a search

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12
Q

When may police stop and automobile?

A

the police may stop a car if they at least reasonable suspicion that the law has been violated

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13
Q

When will reasonable suspicion based on an informant’s tip be sufficient?

A

when reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability.

The tip may be, but is not required to be predictive.

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14
Q

What test is used to determine if an office had reasonable suspicion sufficient to effectuate a Terry Stop?

A

reasonable suspicion is determined by evaluating the totality of the circumstances

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15
Q

Define reasonable suspicion.

A

reasonable suspicion is more than just vague suspicion and it is less than probable cause

a hunch will never be enough, even if it turns out to be right

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16
Q

Do police need probable cause to detain you in a Terry Stop?

A

No. the police have the authority to briefly detain a person even if they lack probable cause to arrest.

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17
Q

What is the impact of an unlawful arrest on any subsequent criminal prosecution?

A

an unlawful arrest by itself has no impact on subsequent criminal prosecution

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18
Q

Do the police need probable cause to compel you to come to the police station for questioning? For fingerprinting?

A

Yes, and Yes. The police need probable cause to arrest you and compel you to come to the station either for (1) fingerprinting; or (2) interrogation

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19
Q

Do you need an arrest warrant to arrest someone in their own home?

A

Yes. non-emergency arrests of individuals in their home do require and arrest warrant

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20
Q

Is an arrest warrant required to arrest someone in a public place?

A

No. Arrest warrants are not generally required for arresting someone in a public place

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21
Q

When does probable cause exist?

A

Probable cause exists when a reasonably prudent person would believe that suspect has committed or is committing a crime

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22
Q

What is a seizure?

A

any exercise of control by a government agent over a person or thing

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23
Q

What does the fourth amendment protect?

A

It protects against unreasonable searches and seizures

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24
Q

What does the fifth amendment protect?

A

The privilege against compulsory self-incrimination; and the prohibition against double jeopardy

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25
Q

What does the sixth amendment protect?

A

The right to speedy trial; right to trial by jury; right to confront witnesses; right to assistance of counsel.

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26
Q

What does the eighth amendment protect?

A

The prohibition against cruel and unusual punishment; the death penalty; prisoner rights

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27
Q

What standard of suspicion must police have to detain you in a Terry Stop?

A

In order to make such a stop, the police must have a reasonable suspicion supported by articulable facts of criminal activity

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28
Q

What is required to establish standing sufficient to challenge an unlawful search or seizure?

A

Standing exists when a person has a reasonable expectation of privacy in the item or area searched

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29
Q

When do you NOT have standing?

A

You do not have standing for things you hold out to the public every day. For Example:

(1) sound of your voice
(2) the style of you handwriting
(3) the pain on the outside of your car
(4) the account records held by your bank
(5) the monitoring of your car on a public street or in your driveway
(6) anything that can be seen across open fields
(7) anything that can be seen flying over in public airspace
(8) the odors emanating from your luggage or car
(9) your garbage set out on the curb.

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30
Q

If the police install a GPS system on a suspect’s car, would that action constitute a search?

A

Yes.

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31
Q

If the police search you garbage can propped up against your house, would that be a search?

A

Yes.

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32
Q

What are the two core requirements to the warrants clause?

A

(1) probable cause

(2) particularity

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33
Q

What is the standard for probable cause needed to obtain a search warrant?

A

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

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34
Q

What is the standard for particularity needed to obtain a search warrant?

A

The warrant must state with particularity the pace to be searched and the things to be seized

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35
Q

May a search warrant be anticipatory? I.e. may it predict when illegal items may be in a suspects home even if they are not there at the time the warrant is issued?

A

Yes.

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36
Q

May a search warrant be based on an informants tip?

A

Yes, if in light of the totality of the circumstances, the information is sufficient to give rise to probable cause.

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37
Q

What factors does the court look to when determining the sufficiency of probable cause based on an informant’s tip?

A

(1) the credibility of the informant;

(2) the basis of the informant’s knowledge

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38
Q

Can a search warrant be based solely on information from an anonymous tip?

A

No, but it may be based in part on an anonymous tip.

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39
Q

May a private citizen effectuate a search warrant?

A

No, police only.

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40
Q

May a third party accompany the police when they effectuate a search warrant in someone’s home?

A

No, unless that person is there to identify stolen property.

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41
Q

Name the exceptions to the warrant requirement

A

(1) Search incident to arrest
(2) Automobile exception
(3) Plain view
(4) Consent
(5) Stop and Frisk
(6) Evanescent Evidence
(7) Hot pursuit
(8) Special Needs Searches (Inventory, Emergency)
(9) Public School Searches
(10) Opening international mails

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42
Q

When does the search incident to arrest exception to the warrant requirement apply?

A

It applies during any constitutional arrest. The arrest and search must be contemporaneous in time and place.

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43
Q

What may be searched under the search incident to arrest exception?

A

(1) The person
(2) areas within the person’s wingspan;
(3) the interior of an automobile in certain circumstances

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44
Q

When may the police search the interior of an automobile incident to arrest?

A

(1) the arrestee is unsecured and still may gain access to the interior of the vehicle; OR
(2) the police reasonably believe that the evidence of the offense for which the person was arrested may be found in the vehicle

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45
Q

May the police search the digital information on a lawfully seized cellphone without a warrant?

A

No, but they may search the physical attributes of a seized cellphone.

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46
Q

May the police search the trunk of a vehicle incident to arrest?

A

No.

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47
Q

When may the police search without a warrant under the automobile exception?

A

When they have probable cause BEFORE searching anything or anybody.

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48
Q

What areas of the car may be searched under the autonmobile exception?

A

The entire car

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49
Q

May the police open packages, luggage, and containers contained in a car when searching pursuant to the automobile exception?

A

Yes, if the container could reasonably contain he item they had probable cause to look for.

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50
Q

May probable cause to search a vehicle under the automobile exception arise after a vehicle has been lawfully stopped?

A

Yes, as long as it arises before anyone or anything is searched.

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51
Q

What constitutes a valid plain view seizure?

A

(1) the police must be legitimately present at the location where the seizure occurs; AND
(2) it must be immediately apparent that eh item is contraband or fruit of a crime.

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52
Q

When is consent to a search valid?

A

When it is given voluntarily.

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53
Q

When two or more people have the right to use a piece of property, who may consent to the warrantless search of that property?

A

Either person.

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54
Q

If two people having equal right to use a piece of property are present, and one consents to a warrantless search and the other does not, do the police have sufficient consent to conduct the search?

A

No, but if they lawfully remove the non-consenter (i.e. via a lawful arrest) they may proceed to search upon the consent of the remaining occupant.

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55
Q

May the police proceed to search when given consent by someone with apparent authority?

A

Yes.

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56
Q

What is a Terry Stop?

A

A brief detention for the purpose of investigating suspicious conduct

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57
Q

What is the legal standard for a Terry Stop?

A

Reasonable suspicion

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58
Q

Reasonable suspicion requires [ ] than probable cause standard

A

Less

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59
Q

What is a Terry frisk?

A

A pat down of the outer clothing and body to check for weapons

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60
Q

What may an officer do if she lawfully stops a vehicle and developers reasonable suspicion that the driver or passenger is armed and dangerous?

A

(1) conduct a frisk of the suspected person; and

(2) conduct a search the vehicle, so long as it is limited to the areas in which a weapon may be placed

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61
Q

What is evanescent evdience? Example?

A

Evdience that might disappear quickly if the police took the time to get a search warrant.

Example: DNA under a suspect’s finger nails; small quantities of illicit drugs.

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62
Q

Must officers obtain a search warrant prior to taking a blood sample for a DWI arrest if practical to do so?

A

Yes.

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63
Q

When are the requirements necessary for the police to search without a warrant under the hot pursuit exception?

A

The police must be in hot pursuit (no more than 15 minutes behind) of a fleeing felon.

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64
Q

If the police are in hot pursuit of a fleeing felon, may they lawfully enter the home of anyone without a warrant?

A

Yes.

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65
Q

If while in hot pursuit, the police enter the home of a third party, will evidence of contraband or fruits of a crime in plain view be admissible?

A

Yes.

66
Q

When may the police conduct an inventory search without a warrant?

A

Before the incarceration of an arrestee

67
Q

What may the police search during a warrantless inventory search?

A

The arrestee’s personal belonging and/or their entire vehicle and any closed containers therein

68
Q

When is the community caretaker/emergency aide exception to the warrant requirement justified?

A

When an officer faces an emergency that threatens the health or safety of an individual or the public

69
Q

When can public school children be randomly drug tested? Examples?

A

When engaged in extracurricular activities (chess club, football team, school dance)

70
Q

Are warrantless searches of school kids’ backpacks and purses permissible to investigate a violation of law? violation of school rules?

A

Yes and Yes.

71
Q

When will a school search be held reasonable?

A

(1) if it offers a moderate chance of finding evidence of wrongdoing; and
(2) the measures adopted to carry out the search are reasonably related to the objectives of the search; and
(3) the search is not excessively intrusive

72
Q

When may international mail be opened?

A

When there is a reasonable cause to believe that the mail contains contraband.

73
Q

Does wiretapping/ eavesdropping require a warrant?

A

Yes, subject to two exceptions

74
Q

What is the unreliable ear doctrine?

A

Everybody in society communicates assuming the risk that the person to whom he is communicated is wired or consents to the government’s monitoring of their conversation. Technically, this is not a search and does not implicate the fourth amendment.

75
Q

What is the uninvited ear doctrine?

A

A speaker has no fourth amendment right if she makes no attempt to keep the conversation private.

76
Q

Any act used to obtain evdience that [ ] is unconstitutional

A

Shocks the conscience

77
Q

What is the result if a crime is induced by official actions that shock the conscience?

A

Any conviction stemming from that act is unconstitutional.

78
Q

What is required for a confession to be admissible at trial?

A

It must have been given voluntarily

79
Q

What is the test to determine whether a confession was given voluntarily?

A

Totality of the circumstances

80
Q

Under the Sixth Amendment, when is a criminal defendant is entitled to counsel?

A

At all critical stages of a prosecution after formal proceedings have begun.

81
Q

What are the key stages of a prosecution?

A

(1) post-indictment interrogation
(2) prelimary hearings to determine probable cause to prosecute
(3) arraignment
(4) post-charge lineups
(5) sentencing
(6) felony trials

82
Q

What stages is the Sixth Amendment Right to Counsel NOT applicable to?

A

(1) Taking of blood samples
(2) Taking of handwriting samples
(3) pre-charge lineups
(4) brief recess during Defendant’s testimony at trial
(5) parole and probation renovation procedeedings
(6) the taking of fingerprints
(7) photo identification

83
Q

Is the Fifth Amendment Right or Sixth Amendment Right to counsel offense specific?

A

Sixth Amendment Right to counsel

84
Q

When will a pre-Trial Identification be held unconstitutional?

A

When it is so unnecessarily suggestive and so substantially likely to produce a misidentification that a defendant is denied due process of law.

85
Q

If a pre-trial identification is held unconstitutional, what is the resulting effect on the subsequent prosecution?

A

The in-court identification of defendant will be excluded, unless the state can show that it had an adequate independent source for the ID.

NOTE: most commonly found where the victim had an adequate opportunity to observe the defendant at the time of the crime.

86
Q

What is the remedy for violation of a defendant’s Sixth Amendment Right to Counsel at trial?

A

Automatic reversal

87
Q

What is the remedy for violation fo a defendant’s Sixth Amendment Right to Counsel at any non-trial proceeding?

A

The appellate court will review the conviction for harmless error

88
Q

When is a Miranda warning required to be given to a defendant?

A

When the defendant is in custodial interrogation.

89
Q

What information must be given as a part of a Miranda Warning?

A

(1) you have the right to remain silent
(2) anything you say can be used against you in a court of law
(3) you have the right to an attorney
(4) if you cannot around an attorney one will be appointed for you if you so desire

90
Q

Do the Miranda warnings need to be give ver batim?

A

No, as long as the substance of the warnings is conveyed.

91
Q

Do Miranda warnings apply to interrogations conducted by informants whom the defendant does not know is working for the police?

A

No, Miranda warnings only apply to interrogations conducted by the publicly paid police.

92
Q

When are you in custody?

A

You are in custody, if at the time of interrogation, a reasonable person would not feel free to leave.

93
Q

What factor will a court assess to determine if a reasonable person would feel free to leave during an interrogation?

A

The court will consider whether the situation presents the same inherently coercive pressures as a station house questioning

94
Q

What relevance does a person’s subjective feeling that they were not free to leave have on whether they were actually in custody?

A

None, a defendant’s subjective feelings are irrelevant. Determining custody is done by an objective test.

95
Q

What is an “interrogation” for purposes of Miranda warnings?

A

Any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect.

96
Q

What are a detainee’s options after she has been read her Miranda rights?

A

(1) do nothing
(2) waive her rights
(3) assert the right to remain silent and/or right to counsel

97
Q

A Miranda waiver must be [ ] and [ ] to be valid

A

Knowing and voluntary

98
Q

What is the test for a knowing and voluntary waiver of one’s Miranda rights?

A

Totality of the circumstances

99
Q

A person must make an _______ invocation of their right to remain silent.

A

Unambiguous

100
Q

May the police reinstate questioning after a defendant has validly invoked the right to silence?

A

Yes, as long as they scrupulously honor the detainee’s request.

101
Q

In what circumstances has SCOTUS allowed police to reinstate questioning of a defendant where he had invoked his right to silence?

A

(1) where the police waited a signifact amount of time
(2) the defendant was re-Mirandized
(3) and the questions were limited to a crime that was not the subject of the earlier questioning.

102
Q

The request for counsel can be invoked only an _______ request.

A

Unambigous

103
Q

May the police reinstate questioning after a defendant as requested an attorney?

A

No. Police must cease all questioning until (1) the accused is given an attorney; or (2) the accused initiates further questioning

104
Q

What is the 14 Day Rule?

A

The rule prohibits police from questioning a detainee after he requests counsel for the entire time he is in custody plus 14 days after that the detainee is out of custody. After 14 days, the police may reinstate questioning if they re-Mirandize the detainee.

105
Q

As a general rule, is evdience obtained in violation of Miranda admissible at a subsequent trial?

A

No.

106
Q

Evidence of a Miranda violation may be used at trial to _________________________________

A

Impeach the credibility of a Defendant if he takes the stand at trial.

107
Q

Is a response to police questioning prompted by concerns of public safety admissible at trial, despite a lack of Miranda warnings?

A

Yes.

108
Q

What is the exclusionary rule?

A

It is a remedy of American constitutional procedure where by someone who has been the victim of an illegal search or a coerced confession and have the product of that illegal search of coerced statement excluded form any subsequent criminal prosecution.

109
Q

In what types of proceedings does the exclusionary rule NOT apply?

A

(1) grand jury
(2) civil cases
(3) parol revocation proceedings
(4) evidence introduced for impeachment of a testifying defendant
(5) violations of the knock and announce rule

110
Q

What is the fruit of the poisonous tree doctrine?

A

It provides that all evdience obtained or derived from the police illegality will be excluded at a subsequent trial.

111
Q

Does the fruit of the poisonous tree doctrine apply to violations of Miranda?

A

No, unless the police acted in bad faith in obtaining such information.

112
Q

What are the three exceptions to the fruit of the poisonous tree doctrine?

A

(1) independent source
(2) inevitable discovery
(3) intervening acts of free will on the part of the defendant

113
Q

What is the independant source exception to the fruit of the poisonous tree doctrine?

A

If the government could show tha it had an independent source for the evdience, the evidence will not be excluded.

114
Q

What is the inevitable discovery exception to the fruit of the poisonous tree doctrine?

A

If the government can show that the police would have inevitably discovered the evdience anyway, it will not be excluded.

115
Q

How likely will it be to have live witness testimony excluded under the fruit of the poisonous tree doctrine?

A

Highly unlikely.

116
Q

May the defendant excuse a witness’s in court identification on the basis that it s the fruit of a poisonous tree?

A

No.

117
Q

What is the good faith exception to the warrant requirement?

A

As a general rule, if an officer’s relied in good faith on a valid arrest or search warrant, then any defects with the probable cause or particularity are overcome by that good faith reliance.

118
Q

What are the exceptions to the good faith exception to the warrant requirement?

A

(1) affidavit underlying the warrant is so lacking in either probable cause or particularity that no reasonable officer would have relied on it;
(2) the police officer or prosecutor lied to or misled the magistrate when seeking the warrant;
(3) If the magistrate was biased, and therefore wholly abandoned her neutrality

119
Q

Will a conviction automatically be overturned if Improperly obtained evdience is admitted at trial?

A

No, the court will apply a harmless error test

120
Q

When will a conviction be upheld under the harmless error test?

A

A conviction will be upheld if the conviction would have resulted excluding the improper evidence

121
Q

Who bears the burden of proving harmless error on appeal? What is their burden of proof?

A

The government. Beyond a reasonable doubt

122
Q

A prosecutor has a duty to disclose ________. ________ to the defense prior to trial

A

Exculpatory information

123
Q

To what may exculpatory evidence be relevant to?

A

(1) guilt
(2) impeachment
(3) sentencing

124
Q

Will a prosecutors inadvertent failure to disclose exculpatory evidence be grounds for reversal?

A

Yes, reversal is warranted if:

(1) the evidence is favorable to defendant; and
(2) prejudice has resulted, meaning that there is a reasonable probability that the result would have been different had the information been disclosed.

125
Q

For what offenses does the constitution right to jury trial attach?

A

For any offense in which the defendant is tried that carries a maximum authorized sentence that exceeds six months.

126
Q

What is the minimum amount of jurors required under the constitution?

A

6

127
Q

If there is a six person jury, must the verdict be unanimous?

A

Yes.

128
Q

Is there a federally protected constitutional right o a unanimous twelve juror verdict?

A

No.

129
Q

You have the right to have the __________ reflect a fair cross section of the community.

A

Jury pool

130
Q

Do you have a right to have the empaneled jury reflect a fair cross section of the community?

A

No.

131
Q

What is the standard for striking a juror for cause?

A

A juror should be stricken for cause if her views would prevent or substantially impair the performance of her duties

132
Q

A defendant has the right to refuse assistance of counsel and defend himself If his waiver is _______________

A

Knowing and intelligent, and he is competent to proceed pro se

133
Q

Can a defendant be found mentally competent to stand trial and incompetent to represent himself?

A

Yes.

134
Q

Who determines whether a witness is competent to represent himself in a criminal trial?

A

The judge.

135
Q

What are the requirements for an Ineffective Assistance of Counsel claim?

A

There must be deficient performance by counsel, and but for that deficiency, there is a reasonable probability that the result of the proceeding would have been different.

136
Q

Will a general claim of deficiency be enough to maintain an ineffective assistance of counsel claim?

A

No, typically such a claim can only be made out by specific errors of trial counsel.

137
Q

The absence of a face-to-face confrontation between the defendant and accuser does not violate the Confrontation Clause under what circumstances?

A

Where preventing the confrontation servers an important public purpose and the reliability is otherwise assured.

Example: insulating a child from a defendant in a sex abuse case.

138
Q

What impact does a defenant’s removal from the court room because of his own disruptive behavior have on his right to contfront witnesses against him?

A

He relinquishes any such right when he is removed.

139
Q

Is the confession implicating a co-defendant admissible at the co-defendant’s trial?

A

No.

140
Q

The state must prove every element of a crime by what standard?

A

Beyond a reasonable doubt.

141
Q

Who must prove the elements of an affirmative defense? (Self-defense, insanity)

A

The defendant, beyond a reasonable doubt.

142
Q

May the death penalty be imposed for felony murder, where a defendant was an acomplice and did not intend to take a life?

A

No

143
Q

May the death penalty be imposed on a felony murderer where he participated in major way in a felony that resulted in a murder?

A

Yes, if he acted with reckless indifference to the value of human life.

144
Q

When does double jeopardy attach in a bench trial?

A

When the first witness is sworn

145
Q

When does double jeopardy attach in a jury trial?

A

When the jury is empaneled.

146
Q

Does double jeopardy generally attach in a civil proceeding?

A

No.

147
Q

When is retrial allowed, despite the fact that jeopardy has already attached?

A

(1) when the jury is unable to agree on a verdict
(2) when there is a mistrial fro manifest necessity (medical emergency)
(3) when the retrial is following a successful appeal by the defendant.

148
Q

May the defendant be retried for a more serious crime after he wins a successful appeal of his original conviction?

A

No.

149
Q

What is the consequence of a defendant breaking a term of his plea bargain?

A

His plea and sentence can be withdrawn and the original charges reinstated.

150
Q

When do two crimes NOT constitute the same offense for double jeopardy purposes? What is this test called?

A

When each crime requires proof of an element that the other does not.

This is the Blockburger test.

151
Q

Does the Fifth amendment prohibit law enforcement from seizing incriminating documents?

A

No.

152
Q

May the prosecutor comment on a Defendant’s failure to testify?

A

Yes, but ONLY in response to defense counsel’s assertion that the defendant did not have an opportunity to tell his side of the story.

153
Q

May the prosecutor comment on a Defendant’s choosing to remain silent after being given his Miranda warnings?

A

No.

154
Q

May the prosecutor comment on a Defendant’s choosing to remain silent before being given his Miranda warnings?

A

Yes, this silence can be used against the defendant at any time during trial.

155
Q

If a prosecutor makes impermissible comments on a defendant’s silence, will any resulting conviction be automatically overturned?

A

No, this error will be analyzed under the harmless error test.

156
Q

Under what circumstances is the Fifth Amendment Privilege against self incrimination eliminated?

A

(1) under grant of immunity
(2) where there is no possibility of incrimination (statute of limitations has run)
(3) where defendant has validly waived the privilege

157
Q

When a defendant takes the stand at trial, for what matters has he waived his fifth amendment privilege?

A

All legitimate subjects of cross-examination

158
Q

Does the defendant have the right to appeal and send witnesses to a grand jury proceeding?

A

No, grand jury proceedings are secret.

159
Q

Does a witness subpoenaed to testify before a grand jury have the right to (1) Miranda warnings or (2) have counsel present?

A

No, and No.

160
Q

Are grand jury proceedings bound by the rules of evidence?

A

No, they may consider evidence that would be inadmissible at trial.

161
Q

Habeas corpus is a _________ proceeding that allows a defendant to collaterally attack her conviction once she has exhausted her appeals.

A

Civil

162
Q

What may be validly challenged in a habeas corpus proceeding?

A

(1) conditions of confinement

(2) underlying conviction

Bar Exam (14 decks)

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