Criminal Procedure

Question 1

What are 4 key questions you should ask when approaching a 4^th Amendment question?

Answer 1

1. Was there a search or seizure?
   
   • Was the search or seizure conducted by a government actor?
2. Was there probable cause?
3. Was there a valid warrant?
   
   • Was the warrant defective or did the police act in bad faith?
4. Was there an exception to the warrant requirement?

Question 2

What is required for a valid arrest?

Answer 2

1. Probable cause; and
2. Warrant if:
   
   • Suspect is in their own home absent consent or exigent circumstances; or
   • Suspect is in another person’s home absent consent or exigent circumstances

Question 3

What is the two-prong test identified in Katz to determine whether or not there was a search?

Answer 3

1. Did the defendant have a reasonable expectation of privacy?; and
2. Was the expectation one that society recognizes as reasonable?

If yes, the search is protected by the 4^th Amendment.

See Katz v. United States

Question 4

List examples of objects or things in which there is no reasonable expectation of privacy

Answer 4

1. Objects knowingly exposed to the public;
2. Smells emanating from personal belongings;
3. Car VIN #’s;
4. Handwriting samples;
5. Voice exemplars;
6. DNA samples;
7. Bank records;
8. Phone call records;
9. Conversations with government informants;
10. Open fields;
11. Airspace above property higher than 400 feet
12. Naked-eye observations of private property; and
13. Discarded property

Question 5

What is considered one’s home for the purposes of the 4^th Amendment?

Answer 5

1. Home/dwelling itself; and
2. Curtilage (area surrounding the home). Whether or not area is curtilage depends on:
   
   • Proximity of the area to the home;
   • Whether the area is within an enclosure surrounding the home;
   • The nature and uses to which the area is put; and
   • Steps taken by the resident to protect the area from observation by passersby

United States v. Dunn, 480 U.S. 294 (1987)

Question 6

What are the requirements for a valid warrant?

Answer 6

Warrant must be:

1. Based on probable cause;
   
   • Supported by oath or affidavit
2. Describe with particularity the thing/person to be seized and place to be searched; and
3. Be issued by a neutral and detached magistrate

Question 7

What is the “knock and announce” rule?

Answer 7

Absent exigent circumstances, the police must knock and announce their identity before entering a home to execute a warrant

More Info: Knock and Announce

Question 8

If police violate the “knock and announce” rule, what happens to evidence discovered during the search?

Answer 8

Still admissible. Exclusionary Rule does not apply.

See Hudson v. Michigan.

Question 9

What are 8 exceptions to the warrant requirement?

Answer 9

1. Searches incident to lawful arrest;
2. Automobile search;
3. Plain view search;
4. Consent;
5. Stop and frisk;
6. Inventory search;
7. Exigent circumstances; and
8. Administrative searches

⭐️ The MBE likes to trick you on these. Memorize these exceptions.

Question 10

When does probable cause exist?

Answer 10

If the quantity of facts and circumstances would lead a reasonable person to conclude that either:

1. The individual in question has committed a crime; or
2. Specific items related to criminal activity can be found at that particular location

More info: Probable Cause

Question 11

What is the remedy if police act pursuant to an invalid warrant?

Answer 11

Evidence obtained during an unlawful search will be inadmissible pursuant to the Exclusionary Rule.

⚠️ Exception: Evidence is not excluded if police officers relied upon the warrant in good-faith.

Question 12

What is the “Plain-view” doctrine?

Answer 12

A warrant is not required to seize an item if:

1. The police are on the premises lawfully when they observe the item; and
2. The incriminating nature of the item is immediately apparent (police may not move objects to get a better view)

More Info: Plain View Doctrine

Question 13

The scope of a warrant is limited to:

Answer 13

Only the premises, person, or items described in the warrant

Question 14

What is a search incident to lawful arrest (“SITLA”)?

Answer 14

Warrantless search of an arrestee and the area within their immediate control (wingspan, lunging area) during a lawful arrest

Question 15

Pursuant to a search incident to lawful arrest, can police search the arrestee’s vehicle?

Answer 15

Yes, if:

1. Arrestee has access to the vehicle compartments;
2. There is a reasonable belief arrestee may destroy evidence or pose a danger to the officers; and
3. There is reasonable belief that the vehicle contains evidence of a crime

Question 16

What is the exigent circumstances exception to the warrant requirement?

Answer 16

Police may search without a warrant if waiting to obtain a warrant will result in imminent:

1. Destruction of evidence;
2. Escape of the accused; or
3. Danger to police or others in the area

More Info: Exigent Circumstances

⚠️ Note: Not applicable if police create the exigent circumstances so they can bypass the warrant requirement

Question 17

What is the scope of a “frisk”?

Answer 17

Police are only allowed to do a quick pat-down of the suspect’s outer clothing for weapons. Cannot manipulate items.

Question 18

What is the “plain feel” exception to a Terry Stop?

Answer 18

If, during the course of the frisk, the police have probable cause to believe the suspect has a weapon or contraband (e.g. they feel a gun), they may seize the weapon

Question 19

What is the automobile exception to the warrant requirement?

Answer 19

Police may search an automobile and persons within it without a warrant as long as they have probable cause.

Police can search any locked containers in the vehicle and the trunk if the areas could reasonably hold the evidence sought (i.e. have probable cause to do so)

Also applies to motor homes, boats, and airplanes.

Question 20

What is the consent exception to the warrant requirement?

Answer 20

If a person voluntarily consents to a search, no warrant or probable cause is needed.

Whether or not a person has consented is determined in light of the totality of the circumstances.

Question 21

Does a third party have authority to consent to a search?

Answer 21

Yes, if:

1. The third party owns or occupies the home; or
2. The third party and D jointly own or occupy the home and D is not present (valid even if D had previously objected at another time)

⚠️ Note: If D is home and objects to the third party giving consent, the third party consent is not valid

Question 22

Which types of checkpoints are permissible?

Answer 22

1. Sobriety checkpoints;
2. Checkpoints at or near the border; and
3. Checkpoints to obtain information about a recent crime

⚠️ Checkpoints to test for drugs are not valid

Question 23

The exclusionary rule does not apply to which type of proceedings?

Answer 23

• Grand jury proceedings;
• Civil proceedings;
• Administrative proceedings; and
• Sentencing, bail, and parole hearings

Question 24

What are the exceptions to the Exclusionary Rule?

Answer 24

Evidence may still be admissible if it falls underneath these exceptions:

1. Independent source: Evidence is discovered by an independent source;
2. Attenutation: Relationship between the primary taint and discovery of evidence is sufficiently attenuated as to break the causal chain;
3. Inevitable discovery: Evidence would have been inevitably discovered through legal means
4. Good faith: Exists when police officers were acting in good faith on a warrant that was later declared invalid (see more: Good Faith Exception)
5. Impeachment: Illegally obtained evidence may be used to impeach D at trial

Question 25

The 5^th Amendment privilege against self-incrimination only applies to what type of statements?

Answer 25

compelled, testimonial statements

Question 26

Under the 5^th Amendment, what type of evidence is not considered testimonial?

Answer 26

• Observational evidence (e.g. lineups); and
• Physical evidence (urine samples, hair samples, handwriting samples)

Question 27

What are Miranda rights?

Answer 27

Holds that statements obtained while in custody as the result of direct questioning are inadmissible unless:

1. The police advise the suspect of their rights; and
2. The suspect freely waives those rights

⚠️ Remember: Custody + Questioning *REQUIRES* Warning + Waiver

Question 28

When is a suspect considered in “custody” for Miranda purposes?

Answer 28

When the suspect is in custody at the police station or otherwise not free to leave

Question 29

What constitutes an interrogation under Miranda?

Answer 29

• Direct questioning; or
• Words or actions that a reasonable officer knows or should know will elicit an incriminating response

Question 30

What are the elements of a Miranda warning?

Answer 30

Police must inform D that he has:

1. A right to remain silent;
2. Anything said can be used against him in court;
3. A right to the presence of an attorney; and
4. If he cannot afford an attorney, one will be provided for him

Question 31

When must Miranda warnings be given?

Answer 31

Before the interrogation begins

Question 32

What must a suspect do to exercise their rights after Miranda warnings have been given?

Answer 32

The suspect must make an clear and unambigous request for an attorney and an affirmative invocation of the right to remain silent.

See “Give me a lawyer, dawg” (or did he want a “lawyer dog”?) as an example of an ambigous request for an attorney which did not properly invoke the right.

Question 33

Are statements taken in violation of Miranda rights admissible?

Answer 33

Yes, the statements can be used to impeach D if D takes the stand. Involuntary statements, however, are inadmissible.

⚠️ Note: Statements cannot be used as direct evidence.

Question 34

Does silence constitute invoking the right to remain silent?

Answer 34

No, D must make an unambiguous statement that he is asserting his right to remain silent

Question 35

Is physical evidence seized as the result of an illegal confession (i.e. one in violation of Miranda) admissible?

Answer 35

Yes, any physical derivative evidence obtained from a confession that violated Miranda is admissible.

Ex. During an illegal interrogation, D tells police that the gun is hidden under the bed. The gun is admissible at trial.

Question 36

Is physical evidence obtained in violation of Miranda admissible?

Answer 36

Yes, as long as the statement was not coerced.

Question 37

When does a suspect have a right to counsel for a lineup or showup?

Answer 37

At any post-charge, in-person lineup or showup

Question 38

When does a suspect not have a right to counsel for an indentification procedure?

Answer 38

1. Pre-charge lineups or showups; and
2. Non-live identification (e.g. examining photographic lineups, fingerprinting, photo arrays)

Question 39

What is the remedy when a post-charge, in-person lineup occurs without counsel present?

Answer 39

1. Identification is inadmissible at trial; and
2. Witness will be prohibited from making a subsequent in-court identification of D unless the prosecution can prove that the witness has an independent source of identification

Question 40

Due process applies to which types of identification procedures?

Answer 40

All types of ID procedures at all stages of the process

Question 41

What is the remedy for a due process violation during the identification process?

Answer 41

D can seek to suppress the identification via a suppression hearing.

If D meets his burden, evidence will be suppressed and the witness will not be able to subsequently identify D at trial.

⚠️ Exception: if the witness can identify D based upon knowledge from a source that is independent of the impermissible identification, they will be allowed to identify D at trial.

Question 42

What is the 6^th Amendment right to counsel?

Answer 42

Guarantees D the right to counsel during all critical stages of the adversarial process. Only applies to crimes where D is sentenced to incarceration (even if the sentence is suspended).

More info: Right to counsel

Question 43

Does the 6^th Amendment right to counsel protect D against interrogations about other crimes?

Answer 43

No, the 6th Amendment right to counsel is offense-specific (i.e. only applies to interrogations about the offense charged). Thus, the police can question D without counsel present about any other crimes.

Question 44

When is the 6^th Amendment right to counsel triggered?

Answer 44

Begins with the initiation of formal adversarial process (ex. formal charge, indictment, arraignment, or preliminary hearing). Once right is triggered, D is entitled for counsel for all subsequent proceedings.

Question 45

Under the 6^th Amendment, what are considered the critical stages of a proceeding?

Answer 45

Post-indictment:

1. In-person lineups and identifications
2. Preliminary hearings;
3. Bail hearings;
4. Interrogations;
5. Plea bargaining negotiations; and
6. Appeals as a matter of right

Question 46

What stages are considered not critical? (i.e. no right to counsel)

Answer 46

1. Photo arrays;
2. Pre-indictment lineups;
3. Fingerprinting;
4. Taking handwriting, voice, or blood samples;
5. Probable cause hearings;
6. Discretionary appeals; and
7. Parol or probation hearings

Question 47

What is the difference between the 5^th Amendment right to counsel and the 6^th Amendment right to counsel?

Answer 47

5^th Amendment:

• Applies to all crimes, not offense-specific
• Only applies during custodial interrogations
• Must be invoked by a clear statement demanding counsel

6^th Amendment:

• Only applies to the crime charged, offense specific
• Applies to all critical stages of a proceeding
• Automatically invoked once criminal proceedings have begun

Question 48

Is the prosecutor required to disclose exculpatory evidence in a grand jury proceeding?

Answer 48

No

Question 49

Can a grand jury hear evidence that would be inadmissible at trial?

Answer 49

Yes, can hear evidence that would be inadmissible at trial, including hearsay or illegally obtained evidence

Question 50

What is the constitutional right to bail?

Answer 50

There is no absolute constitutional right to bail, but the decision to deny bail must comply with Due Process, which requires the denial is not arbitrary.

Any decision to deny bail is immediately appealable.

Question 51

When is a pretrial hearing to determine if probable cause exists required?

Answer 51

1. There has been no grand jury indictment or judicial issuance of probable cause;
2. D has been arrested or released on bail; and
3. It is within 48 hours of D’s arrest (hearing must be held within 48 hours)

Question 52

What are the elements of a valid guilty plea?

Answer 52

Must be voluntarily and intelligently made. D must understand:

• The nature of the charge and its elements;
• The maximum authorized sentence and any mandatory sentencing;
• They have a right to plead not guilty; and
• They are waiving their right to a jury trial

Question 53

What is the balancing test to determine whether D’s right to a speedy trial has been violated?

Answer 53

Courts balance the following:

1. Length of delay;
2. Reason for the delay;
3. Whether D asserted his right to a speedy trial; and
4. Amount of prejudice to D resulting from the delay

Question 54

What is the consequence if a prosecutor fails to disclose materially exculpatory evidence?

Answer 54

D is entitled to a reversal if:

1. Evidence was exculpatory; and
2. Failure to disclose likely affected the outcome of the trial and prejudiced D

Question 55

When does the right to a jury trial exist?

Answer 55

For any crime that authorizes a sentence of greater than 6 months (regardless of the actual sentence imposed)

Question 56

What is the Confrontation Clause?

Answer 56

6^th Amendment gives D right to confront (meaningfully cross-examine) all witnesses presenting evidence against him.

More info: Confrontation Clause

Question 57

Define

testimonial evidence

Answer 57

Written or spoken communications whose primary purpose is to establish or prove past events potentially relevant to later criminal prosecution (e.g. affidavits, prior testimony)

Davis v. Washington

Question 58

Are statements made during an emergency considered testimonial?

Answer 58

Likely no. Statements made to law enforcement or 911 operators to assist in an ongoing emergency are not considered testimonial.

But, statements made after the emergency has ceased, or statements to further the investigation, will be considered testimonial.

Question 59

Why does testimonial hearsay violate the Confrontation Clause?

Answer 59

Since testimonial hearsay is an out-of-court statement, D did not have the opportunity to confront or cross-examine the declarant, thereby violating his 6^th Amendment right to confrontation.

Question 60

What is the 8^th Amendment?

Answer 60

Prohibits the federal government from imposing cruel and unusual punishment, including torture or punishment that is grossly disproportional to the offense

Question 61

What is required for the death penalty to be constitutional?

Answer 61

1. Death penalty statute is clear and unambiguous (Godfrey v. Georgia);
2. Statute provides a procedure for review that ensures death penalty is not arbitrary or discriminatory; and
3. Jury is given opportunity to review mitigating factors (e.g. age, mental capacity);
4. Jury had the opportunity to find D guilty of a lesser-included offense; and
5. Jury finds evidence of at least one aggravating circumstance

Question 62

What is the burden of proof in all criminal cases?

Answer 62

Prosecution must prove every element of the crime beyond a reasonable doubt

Question 63

Who bears the burden of proving affirmative defenses?

Answer 63

D. Generally, the prosecution must prove every element of the case beyond a reasonable doubt. However, D can have the burden to prove affirmative defenses (e.g. insanity, entrapment, duress, or self-defense)

⚠️ Note: Can either be proved by clear and convincing evidence or by a preponderance of the evidence standard.

Question 64

What constitutes the “same crime” for the purposes of double jeopardy?

Answer 64

Blockburger test: Crimes are not the same if each crime contains an element not found in the other.

Ex. You can be charged with attempt, and later charged with conspiracy because both require proof of different elements.

⭐️ This means that re-trying D for any lesser included or greater included offense is prohibited because they contain the same, core elements.

Question 65

What are the exceptions to Double Jeopardy (i.e. when can D be retried)?

Answer 65

1. Jury was unable to reach a verdict;
2. D violated plea agreement;
3. D was tried in a criminal court, and is being retried in a civil court (and vice vera);
4. Dual-sovereignty doctrine:
   
   • D may be prosecuted for the same crime by a federal court and a state court
   • May be prosecuted for same crime by 2 different states
5. Mistrial for “manifest necessity;”
6. Retrial is after D’s successful appeal on procedural grounds; and
7. Grand jury can retry D if another grand jury failed to return an indictment

Question 66

Define

writ of habeas corpus

Answer 66

Mechanism for a person to challenge the lawfulness of their detention. It is considered a collateral attack on the conviction, and is a separate legal proceeding.

The writ of habeas corpus is a civil challenge (not criminal), and there is no right to counsel.