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CA Bar Exam > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

What seizure is subject to Fourth Amendment Protection?

A

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

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2
Q

Do all arrests require probable cause?

A

Yes

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3
Q

What is probable cause?

A

Reasonably prudent person would believe that a suspect has committed or is in the process of committing a crime

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4
Q

When does an arrest require a warrant?

A

Public: Not required
Emergency: Not required
Private Home: Required

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5
Q

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

A

Yes

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6
Q

What is a Terry Stop?

A

Police can detain someone based on reasonable suspicion and articulable facts. (If based on informant’s tip, then there must be indicia of reliability)

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7
Q

When can police make a traffic stop?

A

When they have a reasonable suspicion that a law has been, or is being, violated.

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8
Q

Does stopping a car constitute a seizure?

A

Yes, of everyone in the car

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9
Q

Is a drug sniffing dog test an illegal search?

A

No, it is not a search, and the sniff test can be the basis for probable cause.

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10
Q

What is the framework question for search and seizure fact patterns in the essay?

A

Does Defendant have a 4th Amend right because there was a search or seizure concerning a place or thing in which the Defendant had a reasonable expectation of privacy? Or does the search involve the physical intrusion of a constitutionally protected area?

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11
Q

What is the framework question for search warrant fact patterns in the essay?

A

Did the police officer have a valid warrant showing probable cause that was reasonably precise as to the place to be searched and items to be seized? If not, do they satisfy a warrantless search exception?

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12
Q

What actors constitute the government for purposes of the 4th Amend?

A
  1. public police
  2. private individual acting on behalf of police
  3. private police, if they are deputized
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13
Q

How do you determine if a Fourth Amendment claimant has standing?

A

You have to determine if they have a reasonable expectation of privacy in the person or thing searched or seized

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14
Q

What do courts consider in determining whether a person has a reasonable expectation of privacy?

A

totality of the circumstances

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15
Q

What are the three places of automatic standing / where person is guaranteed to have expectation of privacy?

A
  1. Owns the premises
  2. Lives on the premises
  3. overnight guest in the premises
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16
Q

What are the 8 things you have NO reasonable expectation of privacy in?

A

Voice // Handwriting // Paint on your car // bank account records // Areas outside the home and related buildings (e.g., barn) // Garbage at the curb // land visible from public (even plane) // smell of one’s car and luggage

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17
Q

What do you need for a search warrant?

A

Probable cause

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18
Q

How do you show probable cause for a search warrant?

A
  1. Fair probability of finding contraband

2. state with particularity the place to be searched the things to be seized

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19
Q

What is the constitutional arrest rule?

A

No search warrant necessary for an arrest made contemporaneously with a constitutional arrest. (Doesn’t have to be simultaneous)

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20
Q

What is the rule of inventory search?

A

Ok to take an inventory of a person that has been arrested

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21
Q

What is the automobile exception to search warrant requirement?

A

Police may search a car if they believe it contains contraband or evidence of a crime. They may also search containers in the car that may contain evidence of a crime. But can’t search a container smaller than the thing they’re hunting for.

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22
Q

What are the 9 exceptions to warrant requirement?

A

Constitutional Arrest // Automobile // Plain View // Voluntary Consent // Stop and Frisk // Hot Pursuit // Public School // Opening Int’l Mail // Wiretapping and Eavesdropping

23
Q

What is required to conduct a stop and frisk? What are the limits?

A

Don’t need probable cause. Only need articulable and reasonable suspicion. Frisk is limited to a patdown, and police can’t manipulate objects to figure out what they are.

24
Q

What are the three things you have to analyze in a confession essay?

A

For a confession to be admissible, you must test whether it is within the boundaries of the 14th Amend, the 6th Amend and the 5th Amend.

25
Q

What does 14th Amend require of a confession?

A

Must be voluntary

26
Q

What does 6th Amend require with respect to confession?

A

Right to counsel

27
Q

What does the 5th Amend require with respect to a confession?

A

Miranda warnings

28
Q

What does the sixth amendment right to counsel require?

A

Defendant is entitled to counsel for all critical stages of a prosecution AFTER formal proceedings have begun.

29
Q

What are the critical stages that require sixth amendment counsel?

A

Post-Indictment Interrogation // Preliminary hearing to determine probable cause // Arraignment // Post-charge lineups // Sentencing // Felony Trials

30
Q

What is the remedy for a violation of sixth amendment right to counsel?

A

Automatic reversal of conviction

31
Q

What’s a major problem in pre-trial identification?

A

Unnecessarily suggestive pre-trial identification techniques violate due process if the are substantially likely to produce a misidentification

32
Q

What is the general rule of miranda?

A

For an admission or confession given while in custody to be admissible within the bounds of the 5th amend, a person must be given Miranda warnings

33
Q

Miranda - what constitutes custody?

A

Reasonable person wouldn’t feel free to leave

34
Q

Miranda - what constitutes an interrogation?

A

any conduct police knew or should have known might elicit an incriminating response

35
Q

How must you invoke right to remain silent or right to counsel?

A

Must do so affirmatively!

36
Q

What is the consequence of a Miranda violation?

A

Evidence is typically not admissible, except to impeach D’s testimony (or if nec’y for public safety)

37
Q

What is the doctrine governing whether you can admit evidence obtained in violation of 4th, 5th, or 6th Amendments?

A

Fruit of the Poisonous Tree

38
Q

What is excluded from evidence under the fruit of the poisonous tree doctrine?

A

typically any evidence, but NOT evidence:

  • Statements obtained in violation of miranda
  • From violations of knock and announce rule
  • From independent source
  • Only remotely connected to the unconstitutional conduct
  • Would inevitably have been discovered
39
Q

Is fruit of the poisonous tree rule applicable to all proceedings?

A

No, doesn’t apply to:

  • Grand jury proceedings
  • civil proceedings
  • parole revocation proceedings
40
Q

What is prosecutor’s duty before trial?

A

Disclose exculpatory evidence?

41
Q

When does person have right to trial by jury? That is, what kind of charge? What is minimum number of jurors?

A
  • When maximum sentence for charge exceeds 6 months.

- 6 jurors

42
Q

What is your right with respect to a jury pool?

A

The POOL must reflect a fair cross section of the community

43
Q

When should juror be excluded for cause?

A

Anything would substantiality impair their impartiality

44
Q

What is required to legitimate a waiver of your right to counsel?

A

Waiver must be knowing, competent, and intelligent

45
Q

What is required to show ineffective assistance of counsel?

A
  • Specific allegations
  • Counsel was ineffective
  • But for performance, reason to believe trial would have turned out differently
46
Q

What right do you have to confront witnesses?

A

Confrontation clause gives right to confront witnesses. Exception if denying the right serves an important public purpose – classic example is child accuser in child abuse case

47
Q

What is the rule of double jeopardy?

A

Under the 5th amendment, a person may not be retried for the same offense once jeopardy has attached. Jeopardy attaches at a jury trial when a jury is sworn in, and at a bench trial when the first witness is called

48
Q

What are the four exceptions to double jeopardy rule?

A
  1. retrial after hung jury
  2. original trial aborted for “manifest necessity”
  3. after successful appeal
  4. defendant breaches plea bargain
49
Q

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

A
  • Two crimes are the same offense - unless each crime requires proof of an additional element
  • Lesser offenses are included
50
Q

Who government does the double jeopardy rule apply to?

A

Only to the same sovereign

51
Q

Who can assert 5th amendment right against self-incrimination?

A

Only natural persons

52
Q

What is the scope of the 5th amendment right against self-incrimination?

A

Protects citizens against Compelled testimony - not things like DNA and blood evidence

53
Q

What are the limits on the 5th amendment right against self-incrimination?

A
  • grant of immunity
  • no possibility of incrimination
  • waiver by taking the stand

CA Bar Exam (15 decks)

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