Criminal Procedure

Question 1

What rights are given through the Fourth Amendment?

Answer 1

The prohibition against unreasonable searches

The exclusionary rule

Question 2

What rights are given through the Fifth Amendment?

Answer 2

The privilege against compulsory self-incrimination

The prohibition against double jeopardy

Question 3

What rights are given through the Sixth Amendment?

Answer 3

Right to a speedy trial

Right to a public trial

Right to trial by jury

Right to confront witnesses

Right to compulsory process

Right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed

Question 4

What constitutes a seizure?

Answer 4

Under the totality of the circumstances, a reasonable person would feel that he is not free to decline the officer’s request or otherwise terminate the encounter

Question 5

What constitutes an arrest?

Answer 5

When the police take a person into custody against her will for purposes of criminal prosecution or interrogation

Question 6

What is the probable cause requirement?

Answer 6

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

An arrest must be based on probable cause

A warrant is generally not required when arresting someone in a public place

Question 7

When must the police obtain a warrant for an arrest?

Answer 7

For a nonemergency arrest of a person in his home

The officers may enter the home only if there is reason to believe the suspect is inside

Question 8

What is an investigatory detention?

Answer 8

Also known as a stop and frisk, if the police have reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (not merely a hunch), they may detain a person for investigatory purposes

If the police also have reasonable suspicion that the detainee is armed and dangerous, they may frisk him for weapons

The police must act in a diligent and reasonable manner in confronting or dispelling their suspicion

The detention will turn into an arrest if other probable cause for arrest arises

Question 9

When is an automobile stop permissible?

Answer 9

When police have reasonable suspicion to believe a law has been violated

An officer’s mistake of law when stopping a vehicle does not invalidate the seizure as long as the mistake was reasonable

It is a seizure of both the driver and the passengers

• Passengers have standing to raise a wrongful stop as reason to exclude evidence

The police may order passengers out in the interest of officer safety

If the police reasonably believe the passengers to be armed, they may frisk the passengers and search passenger compartments for weapons, even after the occupants are out

Question 10

What is a pretextual stop?

Answer 10

When the police have probable cause to believe a driver violated a traffic law and stop the car, even if the ulterior motive is to investigate for a crime for which they lack sufficient cause to make the stop

Question 11

When may an officer refuse to allow a suspect inside his home?

Answer 11

If the police believe a suspect has hidden contraband in his home, for a reasonable time they may prevent the suspect from entering his home so that they can prevent him from destroying evidence while they obtain a search warrant

Question 12

May the police detain occupants of a premises?

Answer 12

Yes, if the search is conducted properly with a valid warrant

Question 13

What are the requirements to bring a suspect to the station for questioning?

Answer 13

Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against his will (station house detention)

Question 14

What questions should you ask to determine if a search and seizure was reasonable?

Answer 14

(1) Does the seizure concern a place or thing in which the defendant had a reasonable expectation of privacy?
(2) Does the search involve a physical intrusion into a constitutionally protected area?
(3) Did the police have a valid warrant issued by a neutral and detached magistrate?
* Was the warrant issued on a showing of probable cause and was it reasonably precise as to the place to be searched and items to be seized?
(4) If no warrant existed, did the search of seizure fall into one of the six exceptions?

Violations of questions (1) and (2) can implicate an individual’s Fourth Amendment rights

Determine how intrusive the search was into the suspect’s privacy

Question 15

When does one have Fourth Amendment standing to assert the government violated his reasonable expectation of privacy?

Answer 15

He owned or had a right to possession of the place searched

The place searched was his home, whether or not he owned or had a right to possession to it

He was an overnight guest of the owner of the place searched

Determining a violation of a reasonable expectation of privacy is made by considering the totality of the circumstances

Question 16

What are the six exceptions to obtaining a warrant for a search or seizure?

Answer 16

Search incident to constitutional arrest

Automobile exception

Plain view

Consent

Stop and frisk

Hot pursuit or exigent circumstances

Question 17

What questions should you ask to challenge a valid warrant?

Answer 17

Was the warrant based on probable cause?

Was the warrant precise on its face?

Was the warrant issued by a neutral and detached magistrate?

Did the police act on the warrant in good faith?

Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used, despite an ultimate finding that the warrant was not supported by probable cause

Question 18

When is use of informers for a warrant permissible?

Answer 18

In the affidavit police submit to obtain a warrant, an informers tip must meet the totality of the circumstances test

• The affidavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not established
• The informer’s identity generally need not be revealed

Question 19

What are the requirements to find a search warrant based on an affidavit is invalid?

Answer 19

(1) A false statement was in the affidavit by the affiant
(2) The affiant intentionally or recklessly included the false statement, and
(3) The false statement was material to the finding of probable cause

Remember the warrant will not be invalid if the police made a false statement in good faith not knowing it was untrue

Question 20

What is the rule for searching persons found on premises?

Answer 20

A warrant to search for contraband authorizes the police to detain occupants of the premises, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant

• However, if the police believe anyone on the premises is armed and dangerous, they are authorized to frisk the person for weapons

Question 21

What is the search incident to constitutional arrest exception?

Answer 21

Incident to a constitutional arrest means one based on probable cause to believe a law has been violated

The police may search the person and areas where he might reach to obtain weapons or destroy evidence

The police may make a protective sweep of the area if they believe accomplices are present

The search must be contemporaneous in time and place with the arrest, but not necessarily simultaneous

If the arrest is unconstitutional, then any search incident to the arrest is also unconstitutional

Question 22

What is the rule for search of an automobile incident to an arrest?

Answer 22

The police may conduct a search of the passenger compartment of an automobile only if:

• The arrestee is unsecured and still may gain access to the interior of the vehicle, or
• The police reasonably believe that evidence of the offense may be found in the vehicle

Police may issue a warrantless breath test but not a warrantless blood test for suspicion of driving under the influence

Question 23

What is the automobile exception?

Answer 23

If police have probable cause to believe a vehicle contains fruit, instrumentalities, or evidence of a crime, they may search the whole vehicle and any containers that might reasonably contain the item for which they had probable cause to search

The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings

Question 24

What is the plain view exception?

Answer 24

The police may make a warrantless seizure when they:

• (1) Are legitimately on the premises
• (2) Discover evidence, fruits, or instrumentalities of a crime or contraband
• (3) Sees, hears, or smells such evidence in plain view, and
• (4) Have probable cause to believe the item is evidence, fruits, or instrumentalities of a crime or contraband
  
  • It must be immediately apparent

Question 25

What is the consent exception?

Answer 25

A warrantless search is valid if police have voluntary consent

• Knowledge of the right to withhold consent is not a prerequisite
• The scope of the search may be limited to the scope of consent

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants

If a co-occupant is present and objects to the consent of the search, then consent is not valid

• However, if the co-occupant is removed for reasons unrelated to refusal (i.e. a lawful arrest), police may act on the consent of remaining occupants

Question 26

What is the stop and frisk exception?

Answer 26

An officer must have articulable and reasonable suspicion of criminal activity for a stop

If the officer reasonably believes the person to be armed, he may frisk

• The scope is generally limited to a patdown of outer clothing unless the officer reasonably believes a weapon is hidden, or else the frisk becomes intrusive
• The officer may reach into the suspect’s clothing and seize any item the officer reasonably believes is a weapon or contraband, based on “plain feel”
  
  • Such items are admissible as evidence
• A stop is not an arrest, the reason for no need of probable cause

Question 27

What is the exception for hot pursuit, exigent circumstances, evanescent evidence, and emergency aid?

Answer 27

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling

Police may enter the home without a warrant under exigent circumstances, such as reason to believe evidence will be destroyed

• Officers cannot create the exigent circumstances

Police may seize evidence without a warrant if the evidence is likely to disappear before a warrant can be obtained

Police may enter a premises without a warrant to address emergencies that could affect health or safety

Question 28

What is the Sixth Amendment right to counsel?

Answer 28

It guarantees the right to assistance to counsel after judicial proceedings have begun (e.g. formal charges have been filed)

It prohibits police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless he waives the right to counsel

• Waiver must be knowing and voluntary

Question 29

When may a defendant be questioned without violating the Sixth Amendment?

Answer 29

If he is questioned on unrelated, uncharged offenses

Interrogation may still violate the Fifth Amendment right to counsel under Miranda

Two offenses are considered different if each requires proof of an additional element that the other crime does not require

Question 30

What are the remedies for deprivation of counsel?

Answer 30

For nontrial proceedings (such as a post-indictment interrogation) the harmless error test applies

If the defendant was entitled to a lawyer at trial, then automatic reversal of the conviction

Question 31

How do you determine if someone is in custody?

Answer 31

Two-part test:

• (1) Whether a reasonable person under the circumstances feels he was free to terminate the interrogation and leave (“freedom of movement” test), and
• (2) Whether the relevant environment presents the same inherently coercive pressure as station house questioning

The more a setting resembles a traditional arrest (i.e. the more constrained the suspect feels), the more likely the Court will consider it to be custody

Question 32

What is the definition of interrogation?

Answer 32

Any words or conduct by the police that would likely elicit a response

Miranda warnings are not required before spontaneous statements are made

Routine booking questions do not constitute interrogation

Being placed in a cell with an informant constitutes interrogation

Question 33

What are the options a detainee has after receiving Miranda warnings?

Answer 33

Do nothing

• The Court will not presume a waiver; police may continue questioning

Waive rights

• The government must show by a preponderance that the waiver was knowing and voluntary; the Court will look at the totality of the circumstances
• It is generally sufficient if the detainee received Miranda warnings and chose to answer questions

Invoke right to remain silent

• The indication must be explicit, unambiguous, and unequivocal
• Failure to answer is not invoking the right to remain silent
• Later questioning may occur on an unrelated crime, but must give Miranda warning again

Invoke right to counsel

• Must be unambiguous and specific
• All questioning must cease until counsel has been provided unless
  
  • (1) detainee waives his right to counsel (e.g. by reinitiating questioning), or
  • (2) is released from custodial interrogation and 14 days have passed

Question 34

What is the Sixth Amendment right to counsel?

Answer 34

A suspect has a right to the presence of an attorney at any post-charge lineup

If an identification is unnecessarily suggestive and there is a substantial likelihood of misidentification, then the identification may violate due process

Question 35

What is the exclusionary rule?

Answer 35

It prohibits introduction of evidence obtained in violation on a defendant’s Fourth, Fifth, and Sixth Amendment rights

• Unconstitutionally obtained evidence is inadmissible, and
• “all fruit of the poisonous tree” (i.e. evidence obtained from exploitation of unconstitutionally obtained evidence) is also inadmissible unless the cost of exclusion outweighs the deterrent effect exclusion has on police misconduct

Question 36

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

Answer 36

(1) The fruits derived from statements obtained in violation of Miranda
(2) Obtained from an independent source of the original illegality
(3) The connection between the unconstitutional police conduct and the evidence is remote or the causal connection is broken (see p. 23)
(4) Inevitable discovery - the police would have discovered the evidence whether or not the police acted unconstitutionally, and
(5) Violation of the knock and announce rule

Question 37

When does the exclusionary rule not apply?

Answer 37

Grand juries, civil proceedings, parole revocation proceedings

Good faith reliance on the law, defective search warrant, or clerical error

• Does not apply when police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest or search warrant

Impeachment

Knock and announce violations

Question 38

What test is applied on appeal if illegal evidence is admitted?

Answer 38

Harmless error

Question 39

Who bears the burden of admissibility of evidence?

Answer 39

The government must show by a preponderance that the evidence is admissible

The defendant has the right to testify at a suppression hearing without his testimony being admitted against him at trial on the issue of guilt

Question 40

Does a defendant have a right to notice of a grand jury proceeding?

Answer 40

No, they can be held in secret

If called to testify before a grand jury, he is not entitled to Miranda warnings, that he is a potential defendant, or that he has the right to the presence of counsel

A defendant may refuse to answer questions on grounds that they incriminate him

A grand jury may indict a suspect on evidence that is inadmissible at trial

Question 41

What are the rules for a speedy trial?

Answer 41

Whether the Sixth Amendment right to a speedy trial has been violated depends on the totality of the circumstances

Factors considered are length of delay, reason for delay, whether defendant asserted his right to a speedy trial, and prejudice to the defendant

The remedy for a violation is dismissal with prejudice

The right to a speedy trial attaches upon the moment the defendant has been arrested or charged

Question 42

What is the prosecution’s duty to disclose exculpatory evidence?

Answer 42

The government must disclose material, exculpatory evidence to the defendant

Failure to disclose violates due process

It is grounds for reversing a conviction if the defendant can prove:

• (1) the evidence is favorable to the defendant because it either impeaches or is exculpatory, and
• (2) prejudice has resulted (i.e. there is a reasonable probability the result of the case would have been different if the undisclosed evidence was presented at trial)

Question 43

What is the standard for competency to stand trial?

Answer 43

Insanity is a defense to a criminal charge based on the defendant’s mental condition at the time he committed the charged crime

Incompetency to stand trial is based on the defendant’s mental condition at the time of trial

• If defendant later regains his competency, then he can be tried and convicted

A defendant is incompetent to stand trial if he either (1) lacks a rational and functional understanding of the charges and proceedings, or (2) lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding

• The state may place the burden of proving incompetency on the defendant by a preponderance
• Requiring the defendant to show incompetency by clear and convincing evidence is unconstitutional

The defendant will be confined to a mental hospital, and confinement may last longer than the maximum period of incarceration for the offense

Question 44

When are due process rights violated at trial?

Answer 44

(1) The trial is conducted in a manner making it unlikely that the jury gave the evidence reasonable consideration
(2) The state compels the defendant to stand trial in prison clothing
(3) The defendant is visibly shackled, unless shackling is justified for security or escape
(4) The jury is exposed to influence favorable to the prosecution

Question 45

When does a right to trial by jury exist?

Answer 45

Only for serious offenses

• Serious if imprisonment for more than six months is authorized

If a jury is present, there is no right to a jury of 12, but there must be at least 6

• The jury decision does not need to be unanimous, but if it is a jury of 6, then it must be unanimous

The jury must be selected from a representative cross-section of the community

• Must show the underrepresentation of a distinct and numerically significant group

The defendant has a right to an impartial jury

If substantive law provides that a sentence may be increased beyond the statutory maximum, proof of the facts must be submitted to a jury; a judge cannot make the determination

Question 46

What is the standard to waive the right to counsel at trial?

Answer 46

The waiver must be knowing and intelligent and he is competent to proceed pro se

• The determination is made by the judge

Question 47

What is the right to effective assistance of counsel?

Answer 47

It is generally presumed that the defendant’s right to counsel is from effective counsel

For ineffective assistance of counsel, the claimant must show:

• (1) Deficient performance by counsel, and
• (2) But for the deficiency, the result of the proceeding would have been different

Question 48

What is the right to confront witnesses?

Answer 48

Generally, the Sixth Amendment affords a right to confront witnesses

The right is not absolute under important public policy considerations (i.e. protecting a child witness from trauma)

The court may remove a disruptive defendan

Question 49

When is the confession of a co-defendant admissible?

Answer 49

(1) All portions referring to the other defendant can be eliminated
(2) The confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts, or
(3) The confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively

Question 50

What is the standard for making a guilty plea?

Answer 50

The judge must determine the plea is voluntary and intelligent. It must be made on the record

The judge must determine the defendant understands:

• (1) The nature of the charge and the crucial elements of the crime charged
• (2) The maximum possible penalty and any mandatory minimums, and
• (3) The right to plead not guilty, and that if he does plead guilty, that
• (4) he waives the right to trial

The defendant’s counsel may explain these rights to the defendant; it need not be from the judge

The remedy for failure to meet the standards of the plea is withdrawing the plea

A judge is not required to accept a plea bargain

Question 51

When does jeopardy attach?

Answer 51

Under the Fifth Amendment, a defendant may not be retried for the same offense once jeopardy has attached

Jeopardy attaches in a jury trial at the empaneling and swearing of the jury

In a bench trial, jeopardy attaches when the first witness is sworn in

Question 52

What are the exceptions permitting retrial?

Answer 52

Hung jury

Manifest necessity to abort the original trial or on any ground not constituting acquittal on the merits

The defendant has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict

Retrial is permitted when reversal is based on the weight (rather than sufficiency) of the evidence

On retrial, the defendant may not be retried for a greater offense

Charges may be reinstated if a defendant breaches his plea bargain

Question 53

When are two crimes not the same offense?

Answer 53

Two crimes are not the same offense unless each crime requires proof of an additional element

Question 54

What is the method for invoking the privilege against self-incrimination?

Answer 54

A criminal defendant has a right not to take the witness stand at trial

Witnesses do not have the privilege to avoid being sworn in as a witness

• The witness must listen to the question and specifically invoke the privilege rather than answer the question

A violation of the self-incrimination clause does not occur until a person’s compelled statements are used against him in a criminal case

Only natural persons may assert the privilege, not corporations or partnerships

The right is protected under the Fifth Amendment

Question 55

What types of evidence are protected under the self-incrimination clause?

Answer 55

Testimonial evidence (evidence used as testimony)

• Cannot object to a lineup or other identification procedure

Only compelled testimonial evidence is privileged

• If the defendant produced a writing on his own free will, the police may seize the writing, because the defendant was not compelled to make the writing

The prosecution may not comment on a defendant’s silence after being arrested and receiving a Miranda warning

• Silence before a Miranda warning may be used against him in court

The prosecution may not comment on a defendant’s refusal to testify at trial

• If the defendant asserts he was not allowed to explain his side of the story, then the prosecution may comment on the defendant’s failure to take the stand

The defendant is entitled to have a judge instruct the jury that they may not draw an adverse inference from the defendant’s failure to testify