Criminal Procedure Flashcards
1
Q
Constitutional protections only apply to ___________.
A
Government action
2
Q
Can private persons trigger constitutional protection under criminal procedure?
A
Yes:
1) Private persons acting as a government agent (government calls Joe’s neighbor and asks her to break into Joe’s house to see what she can find); AND
2) Defense counsel (both public and private) are treated as government actors for purposes of the Sixth Amendment with respect to effective assistance of counsel.
3
Q
T/F - Police can approach anyone in a public place, and unless the encounter escalates to police preventing the person from moving around or leaving, there is no real constraint on what the police can do and no protection against what they discover.
A
True.
Example: Tailing a suspect, canvassing a neighborhood, and asking questions are perfectly fine.
4
Q
What classifies a seizure?
A
Occurs when an OFFICER, by means of PHYSICAL FORCE OR SHOW OF AUTHORITY INTENTIONALLY terminates or restrains the subject’s freedom of movement.
TEST: Whether a reasonable person would feel free to disregard the officer.
Ex: Shooting a suspect; officer ramming a suspect’s car in an attempt to stop the car.
NOT Examples: Running over a third party while chasing a suspect (because the police did not intend to stop the third party).
5
Q
What are the different types of seizures?
A
1) Stop and Frisk - “Terry Stops” are where an officer can stop an individual when the officer has REASONABLE SUSPICION, based on ARTICULABLE FACTS, to believe the suspect is or is about to be engaged in criminal behavior. During a Terry Stop, an officer can pat-down (frisk) a detainee for WEAPONS, but CANNOT initiate a search for evidence. If PROBABLE CAUSE DEVELOPS during a Terry Stop, the officer can then make an arrest;
2) Traffic Stops - Officers can pat-down the suspect. Officers do not need reasonable suspicion to stop drivers if they pull over everyone (e.g., checkpoints);
3) Arrests - Requires that there be PROBABLE CAUSE to believe that the arrested individual has committed a crime. Can be done WITH OR WITHOUT a warrant.
6
Q
What is the burden hierarchy in search and seizure?
A
Conviction - Beyond a reasonable doubt
Arrest - Probable cause
Stop - Reasonable suspicion
7
Q
What is a pretext arrest?
A
As long as the police have probable cause to believe an individual committed Crime A, police may arrest that individual on the basis of a HUNCH that there is another crime involved.
8
Q
What are arrest warrants?
A
Authorizes an officer to arrest another. An arrest warrant is issued by a neutral and detached magistrate based on a finding of PROBABLE CAUSE to believe that the named individual has committed a particular crime.
The warrant MUST NAME the person and IDENTIFY THE CRIME being arrested for.
Allows officers to enter a home and arrest the individual.
9
Q
Can an officer arrest another in their home without a warrant?
A
Absent a warrant to arrest, officers can arrest someone inside a dwelling if there are:
1) Exigent circumstances; OR
2) There is consent to enter.
10
Q
What does exigent mean?
A
Felony hot pursuit or danger to others.
11
Q
What are warrantless arrests?
A
No finding of probable cause by neutral and detached magistrate but officer has probable cause to believe the individual committed a crime.
NOTE: If officer SEES crime being committed or someone told officer a crime has been committed gives rise to do so.
12
Q
T/F - If the crime was not committed in the officer’s presence, the officer can make an arrest ONLY for a crime that is a felony.
A
True.
Cannot arrest for a misdemeanor without being committed in the officer’s presence or the officer has a warrant.
13
Q
What is the scope of a search incident to an arrest? What can evidence gathered be used for?
A
A LAWFUL arrest permits the arresting officers to make a contemporaneous search of the person arrested and the immediate area surrounding the person to:
1) Protect the officers’ safety and safety of the public; AND
2) To prevent the destruction of evidence.
ANY evidence discovered during a search incident to a lawful arrest can be used against the person arrested.
14
Q
What are the search limits of an arrest on the street?
A
Can search the suspect and his person (including things within his wingspan, i.e. trashcan).
15
Q
What are the search limits of an arrest at a home?
A
Can search the suspect and his immediate arrest area.
16
Q
What are the search limits of an arrest in a car?
A
May search the passenger compartment of a vehicle as long as the person/suspect STILL HAS ACCESS to the vehicle at the time.
Cannot arrest a suspect, cuff him, put him in the back of the squad car AND THEN go back and search through the car. This is because the suspect is not a danger to the officers anymore; he cannot access a weapon from the squad car.
HOWEVER, IF it is reasonable to believe that the vehicle contains evidence of the offense of the arrest, such a search would be proper, even though the suspect would no longer pose a threat to the officers.
17
Q
What are inventory searches?
A
When the police arrest a driver and impound his car, it may be searched for inventory purposes.
18
Q
What is the key question to whether evidence of a search may come in?
A
WAS THE ARREST LAWFUL?
If the arrest is illegal–either because there was no probable cause or there was some other violation of the law–the presumption is that any evidence seized during the search incident to the arrest should be excluded from the prosecution’s case-in-chief.
19
Q
What are the two things to look for on a “search and seizure” MBE problem?
A
1) Must have probable cause; AND
2) Search must be within its scope
If either is not present, the evidence will be excludable in the prosecution’s case-in-chief.
20
Q
What classifies a search?
A
Occurs when the GOVERNMENT conduct violates a REASONABLE EXPECTATION OF PRIVACY.
21
Q
What is a reasonable expectation of privacy?
A
Places where we do have an expectation of privacy against the government:
1) Homes;
2) Hotel Room Rented;
3) Offices;
4) Backyard of your home (curtilage / DOES NOT INCLUDE A HUGE FIELD);
5) Luggage.
Places where we do NOT have an expectation of privacy against the government:
1) Public streets;
2) Open fields (even if they are private property) - Done by flyovers;
3) Garbage cans LEFT OUT IN THE STREET; and
4) Abandoned property.
22
Q
Is there a need for a warrant to perform a search?
A
Generally, the government needs a warrant to conduct a search if there is a reasonable expectation of privacy. Three requirements:
1) A search warrant must be issued by a neutral magistrate;
2) Must be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime; AND
3) Must describe the PLACE AND PROPERTY to be searched WITH PARTICULARITY.
IF THESE ARE NOT MET - the warrant is INVALID and the items seized pursuant to the warrant will be excluded from the prosecution’s case-in-chief.
23
Q
Are there exceptions to the need for a warrant to perform a search?
A
There are seven major exceptions (ESCAPES):
1) Exigent circumstances - If officers are in “hot pursuit” or immediate danger, they may conduct a search without getting a warrant first. However, a warrant is necessary for a search if officers themselves CREATED THE EXIGENT CIRCUMSTANCES. ;
2) Search incident to arrest - If the arrest was LAWFUL,, a search warrant is unnecessary. SCOPE of the search is LIMITED to things within the reach of the defendant. A search incident to arrest for a serious crime can include taking a DNA sample from the arrested person.;
3) Consent - A defendant/suspect can consent to a search. Consent does NOT require the officer alert the subject of his right to refuse. “Mind if I look in that?” is enough. THIRD PARTIES with APPARENT AUTHORITY can allow a search. A search is invalid if the suspect is present and objects. HOWEVER, if the suspect is not present and an occupant (spouse) consents, then the search is valid;
4) Automobiles - If police have probable cause to believe an automobile contains CONTRABAND, they can search those parts of the vehicle, and containers inside, which could contain that contraband. They cannot search OTHER areas or containers (out of scope);
5) Plain view - If police are LEGALLY on the premises, they can seize ANY item in PLAIN VIEW OR PLAIN SMELL, even if that item was not named in the warrant;
6) Evidence obtained from administrative searches - There are two kinds–administrative warrants AND warrantless administrative searches. (see two cards from now); AND
7) Stop and frisks - “Terry Stops” as described before.
24
Q
What has the US Supreme Court recently held with regard to DUI searches?
A
Generally, a warrant is required for a search incident to DUI arrests. A DUI arrest is not an exigent circumstance that allows for an immediate blood alcohol concentration test unless exigent circumstances are such that it is impossible to get a warrant (late at night so judge is unavailable for a warrant, far from a hospital).
25
What is evidence obtained from administrative searches?
Police do not need search warrants to conduct administrative searches. There are two kinds:
1) Administrative Warrants - Do not require probable cause (such as fire or health inspections of a building). Evidence, instrumentality, or fruit of a crime can be seized if SEEN during the administrative search.
2) Warrantless Administrative Searches - Conducted for NON-INVESTIGATIVE purposes, but if they turn up evidence of a crime, it can be used for arrest and subsequent prosecution.
Examples of warrantless administrative searches:
1) Airplane boarding areas;
2) International borders;
3) Highly regulated industries (liquor stores, gun shops, etc.);
4) Searches of students in public schools;
5) Special needs searches (drug testing of railroad employees after an accident);
6) Roadblocks for drunk driving or seeking information
26
What does the Fifth Amendment do?
Provides, among other things, that no person shall be compelled in any criminal case to be a witness AGAINST HIMSELF.
27
What is the scope of the Fifth Amendment Privilege against self-incrimination?
APPLIES TO NATURAL PERSONS, NOT CORPORATIONS OR UNIONS.
Only applies to TESTIMONIAL evidence, NOT PHYSICAL evidence.
Applies to testimony that would be incriminating (which includes links in the chain) that is LIKELY TO LEAD TO PROSECUTION AND CONVICTION. Can be invokes in ANY PROCEEDING as long as there is reason to believe the testimony might lead to future criminal prosecution.
HOWEVER, IF IMMUNITY IS GIVEN, THE RIGHT CANNOT BE INVOKED.
28
What classifies as a statement under the protection of the Fifth Amendment? When are the statements protected?
A statement that is made by an INDIVIDUAL TO THE GOVERNMENT.
The Supreme Court held that statements made as a result of CUSTODIAL INTERROGATION are inadmissible unless they are accompanied by procedural safeguards (i.e., you have a Fifth Amendment right not to be subjected to custodial interrogation without being given warnings first).
29
What does "custodial" mean?
The person being questioned has been arrested or is otherwise not free to leave (in the back of a police car).
If not in custody, no warning is required. Any statement or failure to respond to questions CAN be used against them.
30
T/F - Someone already imprisoned is not necessarily treated as being in custody when questioned about another crime. To be custodial, the prisoner must be removed from normal surroundings and not free to return to them.
True.
31
What does "interrogation" mean?
Involves either the official asking questions or engaging in other conversation or conduct that police know or should know will elicit a response.
Does NOT include volunteered statements, but does include induced statements.
Does NOT include routine booking questions.
32
What are the Miranda warnings?
Before conducting custodial interrogations, the police must inform the suspect of the following:
1) Right to remain silent;
2) Any statement made may be used against her in court;
3) She has the right to consult an attorney and to have the attorney present during questioning; AND
4) She has the right to have an attorney appointed if she cannot afford one.
FURTHER, Interrogators must ask whether the defendant UNDERSTANDS the rights (i.e., defendant understands English, can hear, and actually heard what was said).
33
When must interrogation cease?
1) Defendant INVOKES THE RIGHT TO REMAIN SILENT - says she does not want to talk. The right must be AFFIRMATIVELY INVOKED, it is not enough to just remain silent. After a SUBSTANTIAL PERIOD of time, police can go back to suspect, give warnings again, and seek to talk to her.
2) Defendant INVOKES THE RIGHT TO COUNSEL - Right must be AFFIRMATIVELY INVOKED ("I want a lawyer"). It is not enough to say "I think I should talk to somebody." If invoked, all questioning must stop until either: (a) the lawyer is present, or (ii) the defendant re-initiates contact with police. Police CANNOT generally go back to defendant.
34
Is there an exception to the invoking of the right to counsel?
If there is a break of more than TWO WEEKS between the first and second attempts at interrogation, the second statements can be used as long as the defendant waives her Miranda rights the second time around.
35
T/F - Police have to tell the defendant that a lawyer is trying to reach her if the defendant does not ask for the lawyer.
False.
They do not have to tell the defendant.
36
What is the Public Safety Exception?
When public safety is at risk, the police do not have to give Miranda warnings before questioning.
37
How are involuntary statements treated? What about statements made by deceit?
Statements obtained by threats, even after warnings, are INADMISSIBLE.
HOWEVER, CONFESSIONS CAN BE THE PRODUCE OF DECEIT AND STILL BE VOLUNTARY AND ADMISSIBLE.
38
What are the consequences of Fifth Amendment Violations?
TWO CATEGORIES:
1) Statements obtained INVOLUNTARILY - An involuntarily obtained statement is NEVER ADMISSIBLE against a defendant. Whether to overturn a conviction depends on the HARMLESS ERROR STANDARD. Evidence obtained as the result of an involuntary statement (e.g., "Tell us where the body is buried" while a suspect is at gunpoint) is fruit of the poisonous tree and is PRESUMPTIVELY INADMISSIBLE.
2) Statements obtained in VIOLATION OF MIRANDA - A statement obtained in violation of Miranda is INADMISSIBLE in the prosecution's case-in-chief, but CAN be admitted for IMPEACHMENT purposes to challenge the credibility of the defendant. Evidence obtained as a result of a VOLUNTARY statement taken in violation of Miranda is ADMISSIBLE.
39
What does the Sixth Amendment Right to Counsel say?
In addition to the Fifth Amendment right to counsel for custodial interrogations (covered in the Miranda discussion), the Sixth Amendment explicitly provides a criminal defendant with "the assistance of counsel for his defense."
40
How is the Sixth Amendment Right to Counsel invoked compared to the Fifth Amendment?
INVOKED AUTOMATICALLY as it attaches once there has been an INDICTMENT, information, or other formal charges and exists UNLESS a defendant knowingly and intelligently waives the right.
By contract, the Fifth Amendment right must be affirmatively invokes by the defendant.
41
To what charges does the Sixth Amendment right apply?
It is OFFENSE SPECIFIC.
Only applies with regard to the offenses for which the defendant has ACTUALLY BEEN CHARGED (including any lesser included offenses.
CAN BE QUESTIONED, either expressly or through undercover government means, with respect to UNRELATED CHARGES.
APPLIES WHETHER YOU ARE IN CUSTODY OR NOT. By contrast, the Fifth Amendment Miranda right applies only to custodial interrogation for any charge, but not to non-custodial interrogation.
42
When does the Sixth Amendment Right to Counsel apply?
Applies to ALL felony prosecutions and to any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed. It applies to ALL CRITICAL STAGES OF THE PROSECUTION:
1) Hearings;
2) Post-indictment lineups;
3) Post-indictment interrogations;
4) All parts of the trial process, including guilty pleas, sentencing, and appeals as of right.
Examples of Non-Critical stages are:
1) Investigative lineups (pre-indictment);
2) Witnesses looking at photo arrays;
3) Discretionary appeals and post-conviction (habeas) proceedings.
43
What are the different types of identification procedures?
There are two kinds of identification procedures:
1) Photo Arrays; AND
2) Lineups
44
What are photo arrays? What rights does the defendant have?
Neither the defendant nor his lawyer has the right to be present, but police MUST turn over the array to the defendant.
45
What are the two types of lineups? What are the rights of the defendant in each?
Pre-indictment lineups - Defendant has no right to counsel.
Post-Indictment lineups - Defendant has a right to have counsel present. If that right is violated, the evidence that the witness identified the defendant at the lineup must be excluded.
46
What is the admissibility of a lineup or in-court identifications?
LINEUP EVIDENCE AT TRIAL - If the defendant moves to suppress evidence that a witness picked the defendant out of a lineup, the court will consider whether the lineup was IMPERMISSIBLY SUGGESTIVE.
If it was, the court can exclude the testimony.
IN-COURT IDENTIFICATIONS - If the prosecution can establish by CLEAR AND CONVINCING EVIDENCE that the witness would have identified the defendant even without the suggestive lineup, the court will permit the in-court identification even if it suppresses the result of the lineup.
47
What is the Exclusionary Rule? When does it apply?
Illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal interrogation, is INADMISSIBLE at the criminal trial of the person whose rights were violated.
The Exclusionary Rule applies AT TRIAL and NOT TO PRETRIAL proceedings (e.g., grand jury proceedings).
48
When is there standing to claim the Exclusionary Rule?
The violation must have been of the defendant's rights, and NOT someone else's rights.
One Slight Qualification: If the driver of a car is arrested without probable cause, passengers are deemed to have been seized as well, so they CAN challenge the constitutionality of the stop.
49
Define the Exclusionary Rule.
Evidence obtained in violation of the 4th, 5th, or 6th Amendment rights CANNOT be introduced at trial to prove a defendant's guilt.
50
What is "Fruit of the Poisonous Tree?"
The exclusionary rule applies not only to the evidence obtained in violation of the Constitution, but ALSO to evidence obtained as a result of the initial violation (apply a "but for" test here).
51
What are the exceptions to the Exclusionary Rule?
1) Knock and Announce - Although officers executing an arrest warrant at a residence are required to knock and request admission, if they fail to do so, burst in, and discover evidence, that evidence is ADMISSIBLE;
2) Inevitable Discovery - If the evidence would have been discovered anyway through LAWFUL means, it will be admissible.
3) Independent Source - Relevant evidence discovered on the basis of an independent source will be admissible.
4) Attenuation in the Causal Chain - Intervening events and the passage of time can remove the taint. If officers question a defendant without warning him and then in midstream warn him and continue the interrogation, the causal chain has not been broken.
5) Good Faith - Biggest of the exceptions to the exclusionary rule. It applies to officers who RELY IN GOOD FAITH on either: (a) an existing law that was later declared unconstitutional, OR (b) a warrant that, while facially valid, is later found to be defective. If the officers are acting in good faith reliance, they are entitled to use the evidence that was obtained. Relying on a warrant is okay as long as: (a) not obtained by fraud, (b) not defective on its face, and (c) the magistrate did not wholly abandon his judicial role.
5. 5) Isolated Negligence - Isolated negligence by law enforcement personnel does NOT necessarily trigger the exclusionary rule (can show up where a warrant expires).
52
T/F - Some states don't have a good faith exception to the Exclusionary Rule.
True.
53
Key questions to ask for each amendment . . . .
Remember that suppression is an issue only after you conclude that there has been a constitutional violation in the first pace:
1) FOURTH AMENDMENT: Was there a search? Was there a seizure? If yes, was there probable cause? Fourth Amendment violation exists only if you can say that there was a search and seizure with no probable cause.
2) FIFTH AMENDMENT: Was there a Fifth Amendment Interrogation violation? Was the defendant in custody? Was there an interrogation? Was the defendant given warnings? Did he invoke his rights?
3) SIXTH AMENDMENT: Did the Sixth Amendment right to counsel attach (was there a charge)? Was this a critical stage?
IF SO, ASK whether the exclusionary rule applies to that kind of violation.
IF it is the kind of violation to which the exclusionary rule attaches, then ask whether one of the exceptions to the exclusionary rule makes the evidence admissible anyway.
FINALLY, IF the question involves whether a conviction should be overturned (rather than simply whether the evidence should be suppressed), apply the HARMLESS ERROR RULE.
54
What is the harmless error rule?
Asks if this piece of evidence had not been let in, would it make a difference to the outcome of the case?
55
What are the methods of determining probable cause?
Under the Fifth Amendment's Presentment Clause, all federal felony charges must be initiated by indictment unless the defendant waives indictment. An indictment claims that there is probable cause to believe the defendant committed the crimes charged.
The Fifth Amendment Presentment Clause has not been incorporated to the states, so the states have the choice of whether to proceed by grand jury indictment or by information.
If proceeding by information, there must be a preliminary hearing before the neutral judge to determine whether there is probable cause.
56
How is a proceeding before the grand jury carried out?
Grand juries can consider evidence that involves hearsay or that has been obtained in violation of the Constitution in deciding whether to indict.
PROSECUTORS - have no duty to present exculpatory evidence to the grand jury.
DEFENDANTS - do not have the right to appear or testify before the grand jury or to call witnesses.
WITNESSES - do not have the right to bring counsel within the grand jury room, although they can leave the grand jury room to consult with their lawyers.
Grand jury proceedings are held in SECRET. THE GRAND JURY DOES NOT HAVE TO BE UNANIMOUS (only need majority).
57
How is a defendant's competence to stand trial determined?
TEST: Whether the defendant comprehends the nature of the proceedings against him and can assist his lawyer in defending the case.
If a defendant is competent to stand trial, he is also competent to waive the right to trial and to plead guilty.
58
How does bail work? Is it limited?
The Eighth Amendment forbids the setting of excessive bail, but does not state outright that bail must be offered pending trial.
GENERAL RULE: Bail is available unless the defendant poses either a flight risk or a danger to the community. There is a presumption in favor of release pending trial and a presumption against release after conviction, pending appeal.
Courts can impose pretrial release conditions on defendants, such as reporting requirements, house arrest, monitoring, or avoidance of particular locations or people.
59
What are the effects of guilty pleas?
The majority of defendants do not go to trial: the charges are either dismissed or the defendant pleads guilty. A guilty plea waives the various trial rights a defendant would otherwise have, such as the right to put the prosecution to its proof, to trial by jury, to challenge to introduction of evidence, to appeal if there is a conviction.
For a guilty plea to be VALID, the defendant MUST KNOWINGLY AND INTELLIGENTLY waive these rights. This is accomplished through PLEA ALLOCUTION where the judge:
1) Informs the defendant of his rights and ensures that the defendant understands those rights;
2) Informs the defendant of the possible sentences;
3) Makes sure there is a factual basis for the plea;
4) Determines that the plea did not result from force, threats, or improper promises;
5) That the defendant understands the immigration consequences of pleading guilty.
60
What happens if the defendant is not provided with an appropriate plea allocution?
The defendant can challenge his plea as an INVOLUNTARY waiver of rights. If the defendant challenges, the conviction is wiped out. The prosecution goes back to square one (and can reinstate charges that it had dropped).
61
Is the guilty plea process a critical stage? If so, what does that mean?
Yes, the defendant is entitled to have effective assistance of counsel under the Sixth Amendment. Absent the effective assistance of counsel, the defendant can withdraw his guilty plea and the case will go back to square one.
62
Explain the defendant's right to a jury trial?
The Sixth Amendment provides a right to jury trial for all SERIOUS offenses, providing he asks for it. Serious offenses are those for which the authorized punishment is MORE THAN 6 YEARS.
NOTE: The Sixth Amendment right to counsel attaches in misdemeanor cases only if a sentence of incarceration is actually imposed.
63
What are the jury size requirements?
FEDERAL - A jury in a federal criminal case MUST have 12 members and must decide the case UNANIMOUSLY.
STATE - States can use juries of 6 or more in criminal cases. If the state uses a jury of 12 members, the juries do not have to be unanimous (some states allow 10 of 12).
64
Explain jury selection
Begins with a venire or jury pool. MUST represent a FAIL CROSS-SECTION of the community from which no distinctive group is excluded.
The petit or petty jury is selected through the process of VOIR DIRE. While the actual jury that is seated must be impartial, it does NOT have to reflect a fair cross-section of the community.
There are two ways to remove potential jurors:
1) For-Cause Challenges - Used to ensure an impartial jury. Jurors can be removed for cause when they reveal something that will prevent them from deliberating fairly. The number of challenges for cause is UNLIMITED.
2) Peremptory Challenges - Can generally be made for anything, including hunches. Each side is statutorily limited in the number of peremptory challenges. EXCEPT, neither side can challenge jurors on the basis of RACE or GENDER (Batson Challenge is the cure for this).
65
What is the purpose of the right to a speedy trial?
Defendants can be injured by the passage of time between an alleged crime and their trial. Statutes of limitations give those defendant's repose. Statutes of limitations normally begin to run WHEN THE CRIME IS COMMITTED.
For continuing offenses (conspiracy), it begins to run once the purpose of the offense has been achieved or abandoned.
66
What are the two Constitutional protections against delay?
1) The Due Process Clause protects against pre-accusation delay. It's relatively toothless, as long as the limitations period has not run.
2) The Speedy Trial Clause of the Sixth Amendment protects defendants against delay that occurs between the time of arrest or indictment (whichever comes first) and the time of trial.
67
What does a court look for in a Speedy Trial Clause claim?
Four Factors:
1) Length of the delay;
2) Reason for the delay;
3) Whether the defendant asserted his right to a speedy trial; AND
4) Prejudice to the defendant.
68
What is the right to a Public Trial?
The Sixth Amendment and First Amendment, taken together, protect the rights of the defendant (Sixth) and the public (First) to attend public trials.
Courts do have some discretion to close particular proceedings if there is a substantial likelihood of prejudice or unfairness.
69
What does the Confrontation Clause of the Sixth Amendment say? What is the Crawford Doctrine?
Guarantees defendants the right to CONFRONT the witnesses against them, as well as the right to compulsory process to produce their own witnesses.
CRAWFORD DOCTRINE - If a statement is TESTIMONIAL, then the Sixth Amendment bars admission of the statement IF:
1) The declarant is dead; AND
2) The defendant had no prior opportunity to cross-examine the witness.
NOTE: For non-testimonial statements, look to the rules of evidence.
70
What is the "Bruton Rule?"
A defendant's own statements are always admissible against him. This is true even if the defendant does not testify at trial.
IF there are CO-DEFENDANTS, a NON-TESTIFYING co-defendant's statements are INADMISSIBLE AGAINST THE OTHER CO-DEFENDANT (still admissible against the non-testifying co-defendant that made the statement).
71
What is the defendant's right to present witnesses?
The defendant has a right to testify on his own behalf. He also has the right to compulsory process to obtain witnesses in his defense.
72
What is the burden of proof in a criminal case?
The prosecution must prove EVERY ELEMENT of the crime BEYOND A REASONABLE DOUBT.
Therefore, it is important to determine what the elements of the crime are.
HOWEVER. The government can place the burden of proof with regard to AFFIRMATIVE DEFENSES ON THE DEFENDANT (these include mistake, entrapment, self-defense, or insanity).
73
What is the standard for judges?
The Due Process Clause requires that judges possess neither actual nor apparent bias. Actual bias consists of interest that would impair the judge's impartiality.
74
What are the four prosecutorial duties?
1) Brady Doctrine - Must turn over ALL MATERIAL EXCULPATORY EVIDENCE to the defense. This includes two types of evidence: (a) evidence that tends to show that the defendant is not guilty of the crimes charged; AND (b) evidence that would enable the defense to impeach the credibility of prosecution witnesses. Evidence is MATERIAL IF disclosure could change the outcome of the proceeding;
2) Prosecutor may not KNOWINGLY present FALSE testimony;
3) Prosecutor may not contact (or direct others to contact) a defendant outside the presence of his attorney (cannot violate his Sixth Amendment right to counsel).
4) Prosecutor may not comment on a defendant's failure to testify at trial or make unfair remarks about the defendant to the jury (which would violate his 5th Amendment right to remain silent).
75
T/F - A prosecutor may comment on a defendant's pre-Miranda, pre-custodial interrogation silence because the 5th Amendment right to remain silent must be affirmatively invoked.
True.
Silence without an affirmative invocation of the right to remain silent can be commented on by the prosecutor.
76
What is Prosecutorial Misconduct? What are the consequences?
Misconduct by the prosecutor that has a reasonable possibility of affecting the verdict.
MAY REQUIRE A MISTRIAL OR REVERSAL OF A CONVICTION.
Other forms of prosecutorial misconduct may result in discipline to prosecutor but generally do not result in any consequence for a defendant.
77
What Sixth Amendment guarantees are protective of the defendant with regard to counsel?
The Sixth Amendment not only guarantees defendants the right to the ASSISTNACE OF COUNSEL, it also guarantees them EFFECTIVE ASSISTANCE OF COUNSEL.
78
What are conflicts of interest?
Joint representation, when a lawyer represents several different defendants at trial, can pose problems. Can't just throw the blame on one of them.
IF there is an actual conflict, the JUDGE MUST WARN THE DEFENDANTS that joint representation is a risk; the judge can decide not to allow the joint representation.
If a conflict of interest actually affects counsel's behavior, there is a PRESUMPTION OF PREJUDICE. The defendant may obtain a NEW TRIAL.
79
How is "effective assistance" determined to have been afforded to the defendant?
TWO PART TEST:
1) PERFORMANCE - Did counsel's performance fall below the wide range of objectively reasonable conduct that lawyers might engage in? (you have to really fuck up to fail this part).
2) PREJUDICE - The deficient performance prejudiced the defendant because there is a reasonable probability that, had counsel performed effectively, the result would have been different.
If the issue goes to trial, the defendant must show that there was a reasonable probability that he would NOT have been convicted if the lawyer had done a proper job.
If there is a guilty plea, defendant must show that he would not have pleaded guilty if his lawyer had done a decent job. It is insufficient to show that an effective lawyer would have gotten a better plea deal. The defendant must show that he would have gone to TRIAL.
IF THERE IS A DENIAL OF EFFECTIVE ASSISTANCE OF COUNSEL, THE CONVICTION MUST BE REVERSED.
80
T/F - The ineffective assistance of counsel is NEVER harmless error.
True
By its very nature, it prejudices the defendant.
81
What choice of counsel does a defendant have?
Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is:
1) Properly admitted in the jurisdiction (including pro hac vice rules);
2) Available for trial; AND
3) No conflict or other reason to disqualify the lawyer exists.
A defendant who is denied the retained counsel of his choice is entitled to have his conviction REVERSE regardless of whether the lawyer who actually represented him at trial provided him effective assistance of counsel.
82
What choice of counsel do indigents have?
Not entitled to appointment of the lawyer of their choice.
As long as they receive COMPETENT assistance at trial, they have received all the Constitution guarantees them.
83
What is proceeding Pro Se?
Defendants are entitled to WAIVE the right to counsel and to represent themselves.
A defendant who proceeds pro se does not have a constitutional right to a "back-up" lawyer.
84
What are the Constitutional provisions that regulate sentencing?
1) The Cruel and Unusual Punishments Clause of the Eighth Amendment;
2) The Double Jeopardy Clause of the Fifth Amendment; AND
3) The Apprendi line of cases under the Sixth Amendment.
85
What is the length that a prison sentence can be?
SC has given the government free rein to authorize virtually any length sentence for virtually any crime.
EXCEPTION: Juveniles cannot be sentenced to life without parole for non-homicide crimes.
86
When is capital punishment allowed?
In cases that involve an actual individual victim, the SC has held that capital punishment can be imposed ONLY in cases in which the victim DIES.
CANNOT BE IMPOSED ON:
1) Defendants who were under the age of 18 when they committed the crime;
2) Mentally retarded defendants; or
3) Defendants who are insane at the time of the execution (even if they were sane at the time the crime was committed).
EACH STATE must provide a variety of special safeguards before executing a defendant (bifurcated trial process / mitigating evidence / process that narrows death sentence eligible offenses / etc.)
87
What does the Cruel and Unusual Punishment Clause of the Eighth Amendment say?
Prohibits the imposition of cruel or unusual (degrading) punishments as well as excessive punishments. You must have been CONVICTED of a crime for the Eighth Amendment to apply.
Courts have extended this protection to degrading things done to prison inmates.
88
What does the Double Jeopardy Clause protect?
THREE SEPARATE PROTECTIONS:
1) Protection against prosecution for the same offense after an acquittal;
2) Protection against prosecution for the same offense after a conviction; and
3) Protection against multiple prosecutions or punishments for the same offense.
"Same Offense" - We use the Blockburger Test here and ask whether each statutory provision requires proof of an element that the other does not. For example, if you are prosecuted for and acquitted or convicted of larceny, you cannot be indicted and prosecuted for robbery (a greater defense with the elements of larceny included).
NOTE: Offenses with DIFFERENT VICTIMS are separate offenses for double jeopardy purposes. Killing two victims with one shot can be prosecuted as two separate crimes.
89
What is the Separate Sovereigns Rule?
If two different sovereigns have jurisdiction over the crime committed, they can each try the defendant separately. The Double Jeopardy Clause does NOT bar a defendant from being tried, convicted, and punished in BOTH jurisdictions.
90
When does jeopardy begin and end?
Jeopardy attaches when a JURY IS SWORN IN or, in a bench trial, when the FIRST WITNESS IS SWORN IN. Before trial begins, the prosecutor can add, drop, or change the charges against a defendant without Double Jeopardy problems.
1) ACQUITTAL - Ends jeopardy and the case CANNOT BE RETRIED BY THE SAME JURISDICTION for the same offense. The PROSECUTION CANNOT APPEAL FROM AN ACQUITTAL.
2) CONVICTION - If the jury convicts the defendant and he appeals and gets the conviction reversed, he can be retried UNLESS the reversal was based on INSUFFICIENCY (should have been acquitted) of evidence. If no appeal, or conviction is affirmed, jeopardy is ended and he cannot be prosecuted again for the same crime in the same jurisdiction.
3) MISTRIAL - TWO KINDS:
(a) Manifest Necessity - Defendant CAN BE RETRIED (jury is deadlocked or defense counsel engages in misconduct); OR
(b) No Manifest Necessity - Defendant CANNOT BE RETRIED by that jurisdiction (judge declares mistrial so he does not miss his plane)
91
What is the Apprendi Doctrine of the Sixth Amendment?
Defendant is entitled, as a matter of Constitutional law, to have the jury decide by proof beyond a reasonable doubt, ALL of the elements necessary to impose a particular criminal punishment.
TWO COMPONENTS:
1) All the facts necessary to authorize a particular sentence must be found by a jury; AND
2) All the facts necessary to authorize a particular sentence must be found beyond a reasonable doubt.
EXCEPTION: Sentence enhancement based on prior criminal convictions need not be charged in the case that results in the higher sentence. (Recidivism statutes are constitutional even if the jury in a particular case is not asked to determine whether the defendant had been convicted in the past).
92
T/F - An illegal arrest does not prevent the subsequent prosecution of the person who is illegally arrested.
True
Evidence seized as a consequence of an illegal arrest may be suppressed under the fruit of the poisonous tree doctrine, and the charge may be thrown out if such evidence is necessary for conviction.
93
T/F - If the police can properly arrest a suspect for a crime, the arrest is not constitutionally unreasonable simply because the police inform the suspect that he has been arrested for another crime for which the police lack probable cause.
True
94
Explain an anticipatory warrant.
An anticipatory warrant is not unconstitutional simply because the items to be seized are not located on the premises to be searched at the time that the warrant is issued. The probable cause requirement is satisfied where, at the time that the warrant is issued, there is probable cause to believe that the triggering condition will occur and, if that condition does occur, there is a fair probability that contraband or evidence of a crime will be found in a particular place.
95
What can a criminal defendant do if a search warrant is invalid but valid on its face?
A defendant may go beyond the face of a warrant and challenge its validity due to the inclusion of false information in the affidavit.
However, the defendant must establish by a preponderance of the evidence that the false information was knowingly, intentionally, or with reckless disregard for its truthfulness included by the affiant in the affidavit and that the information was necessary to a finding of probable cause by the magistrate.
96
When are car checkpoints acceptable?
Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. A roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not.
97
T/F - When property to be searched is under the joint control of the defendant and a third party (e.g., a house jointly owned by a husband and wife), the authority of the third party to consent turns on whether the defendant is present at the time of the search. If the defendant is present at the time of the search, then the police may not rely on third-party consent if the defendant objects to the search.
True
98
Is the Fifth Amendment available to corporations and its business records custodians?
The Fifth Amendment privilege against self-incrimination applies only to individuals, not to corporations. The privilege does not extend to the custodian of corporate records, even if the records would incriminate the custodian personally. Additionally, the privilege applies only to testimonial evidence, not to voluntarily prepared business papers.
99
Who must show that Miranda Warnings were waived and by what standard of evidence?
The prosecution bears the burden of establishing that a defendant has waived his Miranda rights by a preponderance of the evidence.
100
T/F - Miranda warnings must be given before interrogation begins. If interrogation is stopped for a long duration, the warnings must be given again.
True
A few hours is arguably long enough.
101
What is the result if Miranda Warnings are delayed on purpose to try to strategically get incriminating statements out of the defendant?
Although the giving of Miranda warnings generally dissipates the taint of a prior Miranda violation with respect to a subsequent confession, this is not always the case.
Here, the purpose of Miranda was circumvented by the police's intentional decision to initially withhold Miranda warnings in a circumstance in which these warnings would otherwise be required, as evidenced by the suspect's reasonable conclusion that his prior incriminating statements constituted a waiver of his right to remain silent.
102
May statements be gathered through an informant when the 6th Amendment Right to Counsel has attached?
A criminal defendant's Sixth Amendment right to counsel applies once formal proceedings against the defendant with regard to a specific crime have been initiated. Once such proceedings have begun and the defendant has counsel, the police may not seek, either directly or through the use of an informant, to elicit incriminating information from the defendant about that crime without the presence of the defendant's attorney.
103
What is the result where a defendant hires an attorney of his choice but the court erroneously denies the attorney pro hac vice admission?
If convicted, MUST REVERSE.
A defendant is constitutionally entitled to be represented at trial by a qualified attorney of the defendant's choice, where that attorney is not provided by the state.
104
T/F - . A preliminary hearing to determine whether probable cause exists to hold the defendant (i.e., a Gerstein hearing) generally must be held within 48 hours of the defendant’s arrest.
True
NOTE: There is no need to hold a preliminary hearing if probable cause has already been determined through a grand jury indictment or an arrest warrant.
105
Are there any exceptions to the Brady Rule?
While, under the Brady rule, a prosecutor has an affirmative duty to disclose any material evidence favorable to the defendant, nondisclosure of such evidence does not violate the defendant's due process rights unless the failure to disclose causes prejudice against the defendant (i.e., that there is a reasonable probability that the defendant's conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant).
106
Who determines how consecutive or concurrent terms run?
A judge may make the determination of whether sentences for separate crimes may run consecutively. The Sixth Amendment right to a jury trial does not require that a jury, rather than a judge, find any fact necessary to impose consecutive, rather than concurrent sentences.
107
Can a prosecutor in plea negotiations threaten to seek higher crimes to get a guilty plea to a lower conviction?
In the plea bargaining process, a prosecutor may threaten to charge a more serious crime in order to convince the defendant to plead guilty to a less serious charge.
Such action does not rise to the level of prosecutorial vindictiveness, at least where there is probable cause for charging the more serious crime.
108
If a state provided attorney acts in such a way that denies a defendant a speedy trial, has the state denied the defendant that right?
Delay in proceeding to trial attributable to the defendant's attorney is not allocated to the state simply because the attorney was provided by the state to the defendant. Instead, as with delay attributable to a defendant-supplied attorney, delay attributable to a public defendant is generally treated as caused by the defendant rather than the state.
109
T/F - Capital punishment for the crime of rape, even when the victim is a child, constitutes cruel and unusual punishment under the Eighth Amendment.
True.
110
T/F - The death penalty may not be imposed on a defendant who was a minor at the time of the commission of the crime. To do so violates the Eighth Amendment's prohibition on cruel and unusual punishment.
True.
111
T/F - A sentence of life imprisonment without the possibility of parole constitutes "cruel and unusual punishment" under the Eighth Amendment when the sentence is imposed for a non-homicide crime on a defendant who was a minor at the time that the crime was committed.
True.
112
Can a defendant plead guilty to a lesser included offense to bar the greater offense with a Double Jeopardy defense?
NO
Generally prosecution of a greater crime, such as burglary, after the defendant has been sentenced with regard to a lesser included offense, such as criminal trespass, which is based on the same conduct as the greater offense, violates the Double Jeopardy Clause.
HOWEVER, the Double Jeopardy Clause does not prohibit such prosecution where the defendant had been charged with the greater offense at the time that the defendant pleads guilty to the lesser included offense.
113
Can police use an arrest warrant to arrest someone at another person's house?
A warrant to arrest an individual implicitly authorizes entry into the arrestee’s home to serve the warrant if the police have probable cause to believe that the arrestee is present. A police officer may not arrest a person in another person’s home without a search warrant, however, absent exigent circumstances or valid consent from the person whose home is being entered.
114
As part of a routine traffic stop, can an officer ask the passenger to step out of the vehicle without reasonable suspicion?
Yes, can always ask them to step out of the car.
115
What is the scope of school student searches (including strip searches) conducted by school personnel?
A search conducted by local public school personnel of a student must be based on reasonable suspicion that the search will produce evidence that the student is or has violated school rules.
It must also be reasonable in its scope in light of the student's age and gender and the nature of the infraction. This standard applies to strip searches as well as other less intrusive types of searches.
116
T/F - An individual generally does not have a reasonable expectation of privacy in the home of another in which the individual was merely a visitor (although an overnight guest may have a reasonable expectation of privacy).
True
Only unreasonable searches and seizures are subject to the Fourth Amendment. A search occurs when governmental conduct violates a reasonable expectation of privacy.
117
When conducting a search in line with a warrant, can officers search other people close by not listed in the warrant absent independent justification?
NO
Independent justification is needed to search persons not named in a search warrant; mere proximity to a named person does not supply such justification.
118
Can officers trespass onto a neighbors property to peak into a defendant's house?
Yes, this does not violate the defendant's rights. If evidence can be obtained from the neighbors yard, then there is no expectation of privacy. No fruit of the poisonous tree in this instance.
119
What type of evidence does the Fifth Amendment protect against?
The Fifth Amendment right against self-incrimination protects only testimonial evidence.
Nontestimonial physical evidence (such as blood or urine samples, Breathalyzer test results, handwriting exemplars, or other evidence of physical characteristics) is not protected.
120
T/F - Once a custodial suspect invokes his right to counsel, all interrogation must stop until counsel is present. However, if the suspect makes any voluntary or spontaneous statements, even after invoking the right to counsel, those statements are admissible.
True
121
T/F - Miranda warnings are not required if the suspect being questioned is not aware that the interrogator is a police officer. Thus, an undercover officer may question a suspect without informing him of his rights.
True
122
Is silence enough to invoke the right to remain silent?
A defendant may knowingly, voluntarily, and intelligently waive her Miranda rights. While silence alone is not sufficient to waive those rights, a suspect who has received and understood the Miranda warnings, and has not expressly invoked her Miranda rights, waives the right to remain silent by making an uncoerced statement to the police.
123
Explain immunity.
“Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness. A witness cannot be compelled to provide potentially incriminating testimony unless the witness is granted use and derivative-use immunity.
DOES NOT GRANT IMMUNITY FROM FUTURE PROSECUTION.
124
T/F - Once the Sixth Amendment right to counsel attaches, statements that a defendant makes to a police informant are inadmissible when the police intentionally create a situation likely to induce the defendant into making incriminating statements without the assistance of counsel.
True
125
What must the court do if an attorney representing co-defendants seeks withdrawal because of a conflict of interest?
If an attorney representing co-defendants makes a timely motion for appointment of separate counsel based on a potential conflict of interest, the trial judge must either grant the motion or at least conduct a hearing to determine whether appointment of separate counsel is warranted under the circumstances. Failure of the judge to do so requires automatic reversal of a subsequent conviction.
126
T/F - A defendant who is indicted by a grand jury from which members of a racial group have been deliberately excluded has standing to raise Equal Protection claims of the excluded racial group, even though the defendant is not a member of the excluded racial group.
True
THERE IS NO HARMLESS ERROR RULE UNDER THESE CIRCUMSTANCES.
127
T/F - The constitutional protection against double jeopardy generally does not apply to civil sanctions imposed on conduct for which a person has previously been subject to criminal punishment.
True.
