Brainscape's Knowledge GenomeTM

Browse over 1 million classes created by top students, professors, publishers, and experts.


See full index

Bar Exam > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

You may prefer our related Brainscape-certified flashcards:
MBE flashcards
1
Q

Seizure

A

Exercise of control by a government agent over a person or thing

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
2
Q

Probable Cause

A

Exists when a reasonably prudent person would believe that a suspect has committed or is committing a crime

Arrest must be based on probable cause

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
3
Q

Arrest in a Public Space

A

Warrant not required

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
4
Q

Non-Emergency Arrest of Individual in Her Home

A

Requires an arrest warrant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
5
Q

Station house dention

A

Police need probable cause to arrest you and to compel you to come to the police station either for fingerprinting or interrogation

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
6
Q

Effect of an Invalid Arrest

A

Unlawful arrest, by itself, has no impact on any subsequent criminal prosecution

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
7
Q

Terry Stops

A

Police have the authority to briefly detain a person even if they lack probable cause to arrest.

Need reasonable, articulable suspicion of criminal activity
-More than just a vague suspicion and less than probable cause; depends on the totality of circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
8
Q

Informants

A

When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (incl. predictive information) to be sufficient

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
9
Q

Automobile Stops

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
10
Q

Traffic Stops and Police Dogs

A

During routine traffic stops, a sniff is not a search.

So long as police do not extend the stop beyond normal time needed to issue a ticket or conduct normal inquiries.

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

NOTE: cannot use drug sniffing dog outside home of a suspected drug dealer

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
11
Q

Traffic Stop: Seizure of All Occupants

A

An automobile stop constitutes a seizure of all occupants (driver and any passengers)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
12
Q

Informational/Checkpoint Roadblocks

A

If police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
13
Q

Traffic Stop: Ordering Occupants Out of the Car

A

If an automobile is lawfully stopped, an officer may order the occupants out of the car.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
14
Q

Pretextual Stops

A

An officer’s ulterior motive for stopping an automobile is irrelevant, so long as the stopping of the car was legal.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
15
Q

Government Conduct

A

Publicly paid police, on or off duty

Private individual acting at the direction of the public police

Privately paid police actions do NOT constitute governmental conduct UNLESS they are deputized with the power to arrest you (store security guards, subdivision police, campus police)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
16
Q

Reasonable Expectation of Privacy/Standing

A

To object to a governmental search, one must have standing to object to the search.

To have standing, person must have reasonable expectation of privacy in the item or area searched

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
17
Q

Automatic Categories of Standing

A

(1) if you own the premises to be searched
(2) if you live on the premises searched, whether you have ownership interest or not
(3) overnight guests

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
18
Q

Standing: Ownership of Property Seized

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
19
Q

“No Standing” Categories

A

No expectation of privacy in things you hold out to the public every day. No right to privacy in:

(1) sound of your voice
(2) style of your handwriting
(3) paint on the outside of your car
(4) account records held by a bank
(5) monitoring the location of your car on a public street on in your driveway (but NOT installation of a GPS device on car)
(6) anything that can be seen across open fields
(7) anything that can be seen from flying over public air space
(8) odors emanating from your luggage or car
(9) garbage set out on curb for collection

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
20
Q

Warrant Requirements

A

Probable cause and particularity!

(1) Probable cause: a fair probability that contraband or evidence of a crime will be found in the area searched
(2) Particularity: warrant must state with particularity the place to be searched and the things to be seized

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
21
Q

Anticipatory Warrant

A

Warrant can predict when illegal items may be in a suspect’s home/office and the items need not be on the premises at the time the warrant is issued.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
22
Q

Probable Cause and Informants

A

If an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances.

An informant’s credibility and basis of knowledge are all relevant factors in making this determination.

A valid warrant can be based in part on an informant’s tip even though that informant is anonymous, but cannot be based SOLELY on an anonymous tip

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
23
Q

Execution of Warrants

A

Only the police (and not a private citizen) can execute a search warrant.

When executing a warrant in one’s home, the police may not be accompanied by any third parties (unless the third party is there to aid in identifying stolen property)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
24
Q

Search Incident to Lawful Arrest

A

Arrest must be lawful. If the arrest is unlawful, then the search is unlawful.

Arrest and search must be contemporaneous in time and place

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
25
Q

Search Incident to Lawful Arrest: Geographic Scope

A

Person and the areas within the person’s wingspan.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
26
Q

Search Incident to Lawful Arrest: Automobiles

A

Police may search interior of the auto incident to arrest ONLY IF:

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

So long as the search itself is valid, any contraband found may be admissible.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
27
Q

Search of Cell Phone

A

Police, without a warrant, may not search digital information on a cell phone seized from an arrested individual.

Physical attributes of a cell phone may be searched (but not data)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
28
Q

Automobile Exception

A

To search anything or anybody under the automobile exception, police must have probable cause

If– before searching anything or anybody police have probable cause– then they can search the ENTIRE car. This includes entire interior compartment, and the trunk.

With probable cause, the police may open (without a warrant) any package, luggage, or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver.

Probable cause necessary to justify the warrantless search of an automobile under the automobile exception CAN arise after the car is stopped.

Probable cause must arise BEFORE anything or anybody is searched.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
29
Q

Plain View

A

Police officer must be legitimately present at the location where s/he does the viewing of the item seized

It must be immediately apparent that the item is contraband or a fruit of a crime

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
30
Q

Consent to Search

A

For consent to be valid, consent must be voluntary.

Police saying they have a warrant negates consent

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
31
Q

Third Party Consent to Search

A

Where 2 or more people have an equal right to use a piece of property, either can consent to its warrantless search.

If both people are present and one person is objecting, then the one who does not consent controls.

If the objecting occupant who does not consent to a search is removed from the premises for a reason unrelated to the refusal (e.g. a lawful arrest), police may search upon consent of the other occupant.

Anyone with apparent authority can validly consent to a governmental search

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
32
Q

Terry Stop

A

Brief detention for the purpose of investigating suspicious conduct.

Legal standard for stop: reasonable suspicion. This is less than the probable cause standard

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
33
Q

Terry Frisk

A

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

“Plain feel”– cannot manipulate the object

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
34
Q

Probable Cause Arises during Investigatory Stop

A

Detention can become an arrest and the officer could then conduct a full search incident to that arrest.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
35
Q

Terry Frisk: Vehicle

A

If a vehicle is properly stopped for a traffic violation, and officer reasonably believes that a driver or passenger may be armed and dangerous, officer may

(1) conduct a frisk of the suspected person and
(2) may search the vehicle, so long as it is limited to the areas in which a weapon may be placed.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
36
Q

Evanescent Evidence

A

Evidence that might disappear quickly if police took the time to get a warranty

NOTE: officers need to get a warrant before taking a blood sample for a DUI arrest (if practical to do so)

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
37
Q

Hot Pursuant

A

Rule of thumb: if police are not within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception

If truly in hot pursuit, can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
38
Q

Inventory Searches

A

Before incarceration of an arrestee, the police may search

(1) the arrestee’s personal belongings and/or
(2) the arrestee’s entire vehicle

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
39
Q

Emergency Aid/Community Caretaker Exception

A

Justifies a warrantless search if an officer faces an emergency that threatens the health or safety or an individual or the public

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
40
Q

Public School Searches

A

Public school children engaged in extracurricular activities can be randomly drug tested. Includes school dances!

Warrantless searches of public school children’s effects, such as purses and/or backpacks is permissible to investigate violations of school rules.

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
41
Q

School Search Will be Held to be Reasonable Only if:

A

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

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
42
Q

Opening International Mail

A

Permissible border searches include the opening of international mail when there is reasonable cause to believe that the mail contains contraband

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
43
Q

Wiretapping and Eavesdropping

A

All wiretapping and eavesdropping requires a warrant

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
44
Q

Wiretapping and Eavesdropping

Unreliable Ear

A

Everybody in society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired, and therefore no Fourth Amendment objection on the basis that it was a warrantless search

All police cars are wired

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
45
Q

Wiretapping and Eavesdropping

Uninvited Ear

A

A speaker has no Fourth Amendment right if she makes no attempt to keep the conversation private

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
46
Q

Shocking Materials

A

Any act that shocks the conscience used to obtain evidence is unconstitutional

Torture, threatening family

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
47
Q

Shocking Inducement

A

If a crime induced by official actions that shock the conscience, any conviction stemming therefrom is unconstitutional

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
48
Q

Confessions: Voluntariness

A

Fourteenth Amendment

Any confession must be voluntary for it to be admissible at trial

Voluntariness is assessed by the totality of the circumstances

How well did you know this?
1
Not at all
2
3
4
5
Perfectly
49
Q

Confessions: Right to Counsel

A

Sixth Amendment

Defendant is entitled to an attorney during all CRITICAL STAGES of a prosecution after formal proceedings have begun.

Key stages

  • post-indictment interrogation
  • preliminary hearings to determine probable cause to prosecute
  • arraignment
  • post-charge lineups
  • sentencing
  • felony

NOT applicable:

  • taking of blood sample
  • taking of handwriting samples
  • pre-charge lineups
  • brief recess during Defendant’s testimony at trial
  • parole and probation revocation proceedings
  • taking of fingerprints
  • photo identification
50
Q

Right to Counsel: Offense Specific

A

Sixth Amendment right to counsel only applies to the specific charge for which Defendant has been retained (been given appointed) counsel

Defendant may be questioned on an UNRELATED charge, even though he has counsel for a different charged crime

51
Q

Pre-Trial Identifications

Due Process Standard

A

Certain pre-identification techniques are no unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law

52
Q

Pre-Trial Identifications

Independent Source

A

The remedy for an unconstitutional pre-trial identification is to exclude the in-court identification unless the State can show that it had an adequate independent source for that in-court identification (independent of that bad lineup)

Most common independent source: victim or witness had an opportunity to observe the Defendant at the time of the crime

53
Q

Remedy for Violation of the Defendant’s Sixth Amendment Right to Counsel

A

If Defendant was entitled to a lawyer at trial, the failure to provide counsel will result in an automatic reversal of the conviction

However, at non-trial proceedings, harmless error test applies

54
Q

Miranda Doctrine

A

5th Amendment

Required when a suspect is in custodial interrogation.

Warning need not be verbatim, so long as the substance of the warning is conveyed.

55
Q

Miranda Doctrine: Government Conduct

A

Only apply to interrogation by the publicly paid police

Does not apply to interrogation where interrogation is by an informant whom the defendant does not know if working for the police

56
Q

Miranda Doctrine: Custody

A

Legal standard for custody: in custody if, at the time of the interrogation, a reasonable person would not feel free to leave.

In making this determination, court will determine whether the situation presents the same inherently coercive pressures as a station house questioning

Determining whether one is in custody is an objective test

57
Q

Miranda Doctrine: Interrogation

A

Under the Fifth Amendment, interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the subject

58
Q

Miranda Doctrine: Spontaneous Statement

A

Miranda warnings are not required prior to admissibility of a spontaneous statement.

59
Q

Miranda Doctrine:

Invocation v. Waiver

A

After receiving Miranda warnings, detainee has several options: do nothing, waive his Miranda rights, assert right to remain silent, or assert right to counsel

60
Q

Miranda Doctrine: Waiver

A

Must be knowing and voluntary. Courts will employ the totality of circumstances test

61
Q

Miranda Doctrine: Invoking the Right to Remain Silent

A

Invoking right to silence must be unambiguous

Police may reinitiate questioning after the defendant has invoked the right to silence if the scrupulously honor the detainee’s request. At very least, may not badger detainee

May reinitiate questioning when police waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning.

62
Q

Miranda Doctrine: Invoking the Right to Counsel

A

Right to counsel can be invoked only by an unambiguous request

If accused invokes his right to counsel, all questions must cease until (1) accused is given an attorney or (2) accused initiates further questioning

63
Q

14-Day Rule

A

Prohibition against questioning a detainee after he requests counsel lasts the entire time the detainee is in custody, plus 14 days after the detainee is out of custody.

After 14 days, detainee can be questioned regarding the same matter upon receiving a fresh set of Miranda warnings.

64
Q

Effect of Miranda Violation

A

Generally, evidence obtained in violation of Miranda is inadmissible at trial

65
Q

Effect of Miranda Violation: Exception

A

As an exception to the exclusionary rule, a confession obtained in violation of Miranda may be used to impeach the credibility of the defendant’s testimony if he takes the stand at trial.

66
Q

Public Safety Exception

A

If police interrogation is reasonably prompted by concern for public safety, responses to the questions may be used in court, even though a suspect is in custody and Miranda warnings are not given

67
Q

Exclusionary Rule

A

a remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or coerced confession can (among other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent prosecution

68
Q

Exclusionary Rule: Grand Jury Proceedings

A

Exclusionary rule does not apply to grand jury proceedings

Grand jury witness may e compelled to testify based on illegally seized evidence

69
Q

Exclusionary Rule: Civil Proceedings

A

Not an available remedy in civil proceedings

70
Q

Exclusionary Rule: Parole Revocation Hearings

A

Not an available remedy in parole revocation proceedings

71
Q

Exclusionary Rule: Impeachment

A

Exclusion does not apply to the use of excluded evidence for impeachment purposes/

ALL illegally seized evidence may be admitted to impeach the credibility of the defendant’s trial testimony
ONLY defendant’s trial testimony may be impeached– not the testimony of the other defense witnesses.

72
Q

Exclusionary Rule: Violations of the Knock and Announce Rule

A

Exclusion is not an available remedy for violations of the knock and announce rule in the execution of search warrants

73
Q

Fruit of the Poisonous Tree Doctrine

A

Will not only exclude illegally seized evidence, but also exclude all evidence obtained or derived from police illegality.

Does not apply to Miranda violations, unless police act in bad faith in obtaining such information

74
Q

Fruit of the Poisonous Tree Doctrine: 3 Exceptions to Exclusion

A

Three ways that the government can break the chain between original, unlawful police action and some supposedly derived piece of evidence:

(1) independent source
(2) inevitable discovery
(3) intervening acts of freewill

75
Q

Independent Source

A

Government can show that it had an independent source for that evidence, independent of original police illegality

76
Q

Inevitable Discovery

A

Police would have inevitably discovered this evidence anyway

77
Q

Intervening Acts of Free Will

A

on the part of the defendant

78
Q

Fruit of the Poisonous Tree Doctrine: Live Witness Testimony

A

Difficult to have live witness testimony excluded as the fruit of illegal police conduct

79
Q

Fruit of the Poisonous Tree Doctrine: In-Court Identification

A

May not exclude witness’s in-court identification on the grounds that it is the fruit of an unlawful detention

80
Q

Fruit of the Poisonous Tree Doctrine: Good Faith Exception

A

Officer’s good faith reliance on an invalid arrest or search warrant overcomes defects with the probable cause or particularity requirements– subject to 4 exceptions

81
Q

Fruit of the Poisonous Tree Doctrine: Good Faith Exception

4 EXCEPTIONS

A

(1) Affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied upon it
(2) Affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it
(3) Police officer or prosecutor lied to, or misled the magistrate when seeking a warrant
(4) if the magistrate is biased and, and therefore has wholly abandoned his or her neutrality

82
Q

Harmless Error Test

A

Conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial.

Conviction will be upheld if conviction would have resulted despite the improper evidence

Government bears the burden of showing beyond a reasonable doubt that admission was harmless

83
Q

Trial

Prosecutor’s Pre-Trial Duty to Disclose

A

Prosecutor has duty to disclose exculpatory information.

Prosecutor’s failure to disclose evidence, whether willful or inadvertent, violates the Due Process Clause and may be grounds for reversal of a conviction if:

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

84
Q

Right to Trial by Jury: Serious Offenses

A

Constitutional right to a jury trial attaches anytime the defendant is tried for an offense for which the maximum authorized sentence exceeds 6 months

If maximum authorized sentence is up to or including 6 months, there is no constitutional right to jury trial

85
Q

Right to Trial by Jury: Number

A

Minimum number of jurors permissible is 6.

If 6 jurors, verdict must be unanimous

86
Q

Right to Trial by Jury: Unanimity

A

There is no federally protected constitutional right to unanimous 12 juror verdict.

10-2 and 9-3 is fine

87
Q

Right to Impartial Jury

A

Have right to have jury pool reflect a fair cross-section of the community, BUT you have no right to have the empaneled jury reflect a fair cross section of the community

88
Q

Right to Impartial Jury: Impair or Prevent Performance

A

Will the juror’s views prevent or substantially impair the performance of her duties?

89
Q

Right to Counsel

A

Applies to all critical stages of prosecution, including trial

90
Q

Waiver of Counsel/Right to Defend Oneself

A

Defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent, and he is competent to proceed pro se.

A defendant can be mentally competent to stand trial but incompetent to represent himself, as determined by the trial judge’s discretion

91
Q

Ineffective Assistance of Counsel

A

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

Such a claim can only be made out by specifying particular errors of trial counsel. More than vague allegations of inexperience or bad trial tactics.

92
Q

Right to Confront Witnesses

A

Absence of face-to-face confrontation between defendant and accuser does not violate 6th Amendment when preventing such confrontation serves an important public purpose (i.2. insulating children from the trauma of testifying in sex abuse case) and the reliability of the witness is otherwise assured

Defendant who is disruptive may be removed from the courtroom, thereby relinquishing right of confrontation

93
Q

Co-Defendant Confession

A

A confession implicating a co-defendant is prohibited and inadmissible at their trial.

Under Confrontation Clause, prior testimonial evidence may not be admitted, unless

(1) declarant unavailable
(2) defendant had an opportunity to cross-examine the declarant at the time the statement was made

94
Q

Burden of Proof

A

Must prove every element beyond a reasonable doubt

95
Q

Burden of Proof: Affirmative Defenses

A

i.e. insanity, self-defense

shift the burden of proof to the defendant

96
Q

Prior Act Evidence

A

Prior act evidence is generally admissible for various reasons if it is probative and relevant

Ex: prior injury to show repeated/serious injuries by non-accidental needs to infer not an accident

97
Q

Death Penalty for Felony Murder

A

Death penalty may not be imposed for felony murder where defendant, as an accomplice, did not take or attempt or intent to take life.

Death penalty may be imposed on a felony murderer where he participated in a major way in a felony that resulted in a murder and he acted with reckless indifference to the value of human life

98
Q

When Jeopardy Attaches: Jury Trial

A

When jury is sworn

99
Q

When Jeopardy Attaches: Bench Trial

A

When the first witness is sworn

100
Q

When Jeopardy Attaches: Civil Proceeddings

A

Jeopardy does not generally attache when proceedings are civil

101
Q

When Jeopardy Attaches: Exceptions Permitting Retrial

A

(1) jury is unable to agree upon a verdict
(2) mistrials for manifest necessity
(3) retrial after a successful appeal is NOT double jeopardy. Upon retrial after a successful appeal, Defendant cannot be retried for more serious offense than he was convicted of at the first trial

Ex: if defendant is convicted of manslaughter and then successfully appeals to new trial, most serious offense Defendant can be convicted of is manslaughter

(4) Breach of an agreed upon plea bargain by defendant. Plea and sentence can be withdrawn and original charges reinstated

102
Q

Blockburger Test

A

Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not

103
Q

Lesser included offenses

A

Being put in jeopardy for a greater offense bars retrial for any lesser included offense

104
Q

Lesser included offenses: Exception

A

If defendant is tried and convicted on a charge of battery and the victim of the battery later dies due to injuries, the person can also then be prosecuted for murder

105
Q

Double Jeopardy: Dual Sovereignty

A

Double jeopardy bars retrial for the same offense by the same sovereign

106
Q

Privilege Against Self-Incrimination

A

Fifth Amendment privilege.

Can be asserted by anyone asked a question under oath in any type of case, wherein the response might tend to incriminate her.

Must assert privilege the first time the question is asked or it is waived for all subsequent criminal prosecutions

Privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution

107
Q

Scope of Fifth Amendment Protection

A

Protects citizen from compelled testimony.

Does not protect citizens from having the government use physical evidence in ways to incriminate them

108
Q

Non-Testimonial Evidence: Examples

A

Blood sample

Handwriting sample

Voice sample

Hair sample

109
Q

DNA swab on arrest

A

Constitutionally valid to take a DNA cheek swab after an arrest for a serious crime

110
Q

Seizure of incriminating documents

A

Fifth Amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person.

Privilege protects against being compelled to communicate information, not against disclosure of communication made in past.

111
Q

Fifth Amendment and Prosecutorial Conduct

A

Unconstitutional for prosecutor to make a negative comment on defendant’s failure to testify or on a defendant choosing to remain silent after being given the Miranda warnings

112
Q

Fifth Amendment and Prosecutorial Conduct: Exception

A

Prosecutor CAN comment on the defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain her side of the story.

Where prosecutor impermissibly comments on defendant’s silence, harmless error test applies

113
Q

Silence Before Miranda

A

If suspect chooses to remain silent before police read him Miranda rights, that silence can be used against him in court

114
Q

Elimination of Fifth Amendment Privilege

A

(1) under grant of immunity
(2) no possibility of incrimination (i.e. statute of limitations has run on underlying crime)
(3) waiver: criminal defendant who takes the witness stand waives the Fifth Amendment privilege as to all legitimate subjects of cross-examination

115
Q

Grand Juries

A

Proceedings are secret.

Defendant has no right to appear and no right to send in witnesses

116
Q

Grand Juries: Right to Counsel

A

Witness subpoenaed to testify before grand jury has no right to have an attorney present

117
Q

Grand Juries: Miranda Warnings

A

Witness subpoenaed to testify before grand jury has no right to receive Miranda warnings

118
Q

Grand Juries: Evidence

A

A grand jury may base its indictment on evidence that would not be admissible at trial

119
Q

Habeas Corpus

A

After Defendant has exhausted her appeals, she may generally still attack her conviction(s) collaterally by beginning a new and separate civil proceeding, known as an application for writ of habeas corpus.

Focuses on the lawfulness of the Defendant’s detention

120
Q

Search and Seizure Essay Analysis (5 Questions)

A

(1) is there governmental conduct?
(2) is there a reasonable expectation of privacy (standing)
(3) valid warrant (probable cause, particularity)
(4) officers good faith defense
(5) exceptions to the warrant requriement

121
Q

Confessions and Miranda Essay Analysis (4 Questions)

A

(1) custody
(2) interrogation
(3) waiver (valid)
(4) invocation of rights (timely, unambiguous)

Bar Exam (15 decks)

Brainscape helps you reach your goals faster, through stronger study habits.
© 2024 Bold Learning Solutions. Terms and Conditions