Criminal Procedure

Question 1

Arrests and Other Detentions: Seizure Definition

Answer 1

An EXERCISE OF CONTROL by a government agent over a person or thing

Question 2

Probable Cause

Answer 2

Probable cause exists when a REASONABLY PRUDENT PERSON would believe that a suspect has committed or is committing a crime

Question 3

Arrests and Other Detentions: Probable Cause and Arrests + Remember Public v. Private Arrests + Remember Effect of Invalid Arrest

Answer 3

Any arrest MUST be based on probable cause

Remember: Arrest warrants are not generally not required before arresting someone in a public place, but are required in someone’s home

Remember: An unlawful arrest, by itself, has NO IMPACT on any subsequent criminal prosecution

Question 4

Arrests and Other Detentions: Investigatory Detentions - Terry Stops Rule + Remember Requirements

Answer 4

Police have the authority to BRIEFLY a person even if they lack probable cause to arrest

Required: Police must have 1) REASONABLE SUSPICION, supported by 2) ARTICULABLE FACTS of criminal activity

Question 5

Arrests and Other Detentions: When Can Informant’s Tips Be Used?

Answer 5

When REASONABLE SUSPICION is based on an informant’s tip, there MUST be signs of RELIABILITY to be sufficient

Question 6

Arrests and Other Detentions: Automobile Stops Requirement + Remember Dog Sniffing (Sniffing + Being Alerted)

Answer 6

Police must have at least REASONABLE SUSPICION that the law has been violated

Remember: During routine traffic stops, a SNIFF from a dog is NOT A SEARCH + if a dog is “alert” to the presence of drugs, this may form the basis of PROBABLE CAUSE

Question 7

Arrests and Other Detentions: Automobile Stops - Checkpoint Roadblocks + Remember DUI and Border Checkpoints + Remember Ordering Out of Car

Answer 7

If the police set up a roadblock for purposes OTHER THAN SEEKING INCRIMINATING INFORMATION the roadblock will be constitutional (e.g. missing persons)

Remember: DUI and Checkpoints are constitutional so long as they are applied neutrally

Remember: If an automobile is lawfully stopped (reasonable suspicion), an officer MAY order occupants out of car

Question 8

Arrests and Other Detentions: Automobile Stops - Ulterior Motives

Answer 8

An officer’s ULTERIOR motive for stopping a car is IRRELEVANT, so long as the stopping of the car was legal

Question 9

Evidentiary Search and Seizure: Government Conduct Requirement + Remember Private Individual’s Working for Police + Remember Security Guards

Answer 9

The search must be conducted by publicly paid police - on or off duty

Remember: Any private individual acting at the direction of the public police

Remember: Privately paid police actions DO NOT constitute government conduct UNLESS deputized power to arrest (e.g. security guards, campus police)

Question 10

Evidentiary Search and Seizure: Reasonable Expectation of Privacy Standard + Remember Automatic REOP

Answer 10

To have standing to sue for illegal search, one must have a REASONABLE EXPECTATION OF PRIVACY in the ITEM or AREA searched

Remember: automatic categories of standing are:

1) if you OWN THE PREMISES searched,
2) if you LIVE ON the premises searched, or
3) OVERNIGHT GUEST of the place being searched, and
4) if you OWN THE PROPERTY seized, you have REOP only to the item or area searched

Question 11

Evidentiary Search and Seizure: REOP - No Standing Categories

Answer 11

You have NO REOP for anything you HOLD OUT TO THE PUBLIC every day, such as:

1) the sound of your voice
2) the style of your handwriting,
3) the paint on the outside of your car,
4) account records held by a bank,
5) monitoring location of car ON PUBLIC STREET,
6) anything seen across OPEN FIELDS,
7) anything seen over PUBLIC AIR SPACE,
8) ODORS emanating from luggage or car, and
9) GARBAGE on the curb

Question 12

Evidentiary Search and Seizure: Warrant Requirements + Tip 2 Ps

Answer 12

Two core requirements: 1) PROBABLE CAUSE, and 2) PARTICULARITY to the place to be searched and things to be seized

Tip: P(robable cause) & P(articularity)

Question 13

Evidentiary Search and Seizure: Warrants - Anticipatory Warrants + Remember Probable Cause from Informant Information Test + Remember Execution of Warrant

Answer 13

A warrant may be issued BEFORE the illegal activity occurs in anticipation of it

Remember: Informant information is determined by TOTALITY OF CIRCUMSTANCES (even if anonymous)

Remember: ONLY POLICE can execute a search warrant, and MAY NOT be accompanied by third parties, unless there to aid recognition of stolen property

Question 14

Exceptions to Warrant Requirement: Search Incident to Lawful Arrest + Remember What Can Be Searched + Remember Arresting a Person Near an Automobile

Answer 14

The arrest MUST BE LAWFUL, and search must be CONTEMPORANEOUS

Remember: The person and the person’s wingspan are the only thing that can be searched

Remember: The police may search the interior of the automobile incident to arrest ONLY IF: 1) the arrestee is UNSECURED and still may gain access to interior of vehicle, OR 2) the police reasonably believe that evidence of the offense FOR WHICH THE PERSON WAS ARRESTED may be found in the vehicle

Question 15

Exceptions to Warrant Requirement: Automobile Exception + Remember Search of Entire Car

Answer 15

If the police have probable cause, they may search an automobile without a warrant.

Remember: If, and only if, before searching the police have probable cause, they may search THE ENTIRE CAR, including trunk and open any package, luggage, or container that COULD REASONABLY CONTAIN THE ITEM

Question 16

Exceptions to Warrant Requirement: Plain View Exception

Answer 16

To constitute a valid plain view seizure, the police officer MUST BE 1) LEGITIMATELY be present at the location where he or she does the viewing of the item seized and 2) the items must be IMMEDIATELY APPARENT

Question 17

Exceptions to Warrant Requirement: Consent Exception + Remember False Proclamation of Valid Warrant + Remember Third Party Consent + Remember Apparent Authority

Answer 17

VOLUNTARY consent would give exception to the warrant requirement

Remember: Police saying they have a warrant NEGATES CONSENT, therefore a police stating a false warrant with consent would not be able to use consent exception

Remember: Where two or more people have an equal right to use a property, EITHER may consent to the warrantless search, UNLESS both people are present and one person DOES NOT CONSENT

Remember: Anyone with APPARENT authority can validly consent to a governmental search

Question 18

Exceptions to Warrant Requirement: Terry Stop and Frisk Required Suspicion + Area to Be Searched and Things to Be Searched + Remember Plain Feel

Answer 18

A terry stop is a brief detention for the purpose of investigating suspicious conduct.

Police need a REASONABLE SUSPICION (less than probable cause) and may only PAT DOW the OUTER CLOTHING and body to CHECK FOR WEAPONS

Remember: If an officer reasonably believes by the PLAIN FEEL that something is a weapon or contraband, it WILL BE ADMISSIBLE

Question 19

Exceptions to Warrant Requirement: Evanescent Evidence + Remember DUI

Answer 19

Evidence that might disappear quickly if the police had to take the time to get a warrant may be searched without a warrant

Remember: Officers need to get a warrant for a blood sample, UNLESS it will not be done in time

Question 20

Exceptions to Warrant Requirement: Hot Pursuit

Answer 20

If police are not within 15 minutes of the fleeing felon, it IS NOT within a valid hot pursuit exception

Question 21

Exceptions to Warrant Requirement: Inventory Searches

Answer 21

Before incarceration of an arrestee, the police may search 1) the arrestee’s personal belongings and/or 2) the arrestee’s entire vehicle

Question 22

Exceptions to Warrant Requirement: Emergency Exception

Answer 22

If an office faces an emergency that THREATENS THE HEALTH AND SAFETY of an individual or the public, a warrant is not required

Question 23

Exceptions to Warrant Requirement: Public School Searches + Remember Requirements for School Search

Answer 23

Public school children engaged in EXTRACURRICULAR ACTIVITIES can be randomly drug tested

A school search will be held reasonable IF:

1) it offers a MODERATE chance of finding evidence,
2) the measures carried out for the search are REASONABLY RELATED to the objectives of the search, and
3) the search is NOT EXCESSIVELY INTRUSIVE

Question 24

Exceptions to Warrant Requirement: Wiretapping and Eavesdropping + Exceptions

Answer 24

General rule: all wiretapping and eavesdropping REQUIRES A WARRANT

Exception: 1) Unreliable ear - society assumes the risk that the person they are speaking with will consent to government monitoring or will be wired, and
2) Uninvited ear - a speaker has NO 4TH AMENDMENT protections if she makes no attempt to keep the conversation private

Question 25

Confessions: Sixth Amendment Right to Counsel + Remember Stages Where it Is Applicable v. Stages Not Applicable

Answer 25

D is entitled to an attorney during ALL CRITICAL STAGES of a prosecution after formal proceedings have begun

Stages Applicable: 1) post-indictment interrogation, 2) preliminary hearings, 3) arraignment, 4) post-charge lineups, 5) sentencing, and 6) felony trials

Stages NOT Applicable: 1) taking BLOOD samples, 2) taking of HANDWRITING samples, 3) PRE-Charge lineups, 4) brief recess during D’s testimony at trial, 5) parole and probation revocation, 6) taking of fingerprints, and 7) photo identification

Question 26

Confessions: Sixth Amendment Right to Counsel - Offense Specific

Answer 26

The 6A ONLY APPLIES to the SPECIFIC CHARGE for which D has retained, thus D may be questioned on UNRELATED CHARGES even though he has counsel for different charged crime

Question 27

Confessions: Sixth Amendment Right to Counsel - Unnecessarily Suggestive Pre-Trail Identification + Remember Admissibility

Answer 27

Certain pre-trial identification techniques are so UNNECESSARILY SUGGESTIVE and likely to produce misidentification they deny due process of law

Remember: This identification will be inadmissible UNLESS there was an INDEPENDENT SOURCE that had ADEQUATE OPPORTUNITY to identify the D at the time of the crime

Question 28

Confessions: Sixth Amendment Right to Counsel - Remedy for 6A Violation + Remember Non-Trial Proceedings

Answer 28

If D was entitled to a lawyer at trial, failure to provide counsel will result in AUTOMATIC REVERSAL OF CONVICTION

Remember: At non-trial proceedings, court will use HARMLESS ERROR test

Question 29

Confessions: Fifth Amendment Miranda Doctrine + Remember Verbatim

Answer 29

Miranda warnings are REQUIRED when a suspect is in CUSTODIAL INTERROGATIONS, the warnings are as follows:

1) right to remain silent,
2) anything you say can be used against you in court,
3) you have the right to an attorney, and
4) if you can’t afford one one will be appointed to you if you so desire

Remember: The warning NEED NOT BE VERBATIM, so long as the substance is conveyed

Question 30

Confessions: Fifth Amendment Miranda Doctrine - Informant

Answer 30

Miranda warnings DO NOT APPLY to informants

Question 31

Confessions: Fifth Amendment Miranda Doctrine - Custody Definition

Answer 31

You are in custody if, at the time of interrogation, a REASONABLE PERSON would not feel free to leave (OBJECTIVE STANDARD)

Question 32

Confessions: Fifth Amendment Miranda Doctrine - Interrogation Definition

Answer 32

Where the police knew or should have known that they might ELICIT AN INCRIMINATING RESPONSE from the suspect

Question 33

Confessions: Fifth Amendment Miranda Doctrine - Right to Remain Silent - Waiver (Test) v. Invocation + Remember When Can Police Reinitiate Questioning After Right to Silence Was Invoked

Answer 33

Waive: A Miranda waiver MUST BE KNOWING and VOLUNTARY. This is tested as a TOTALITY OF THE CIRCUMSTANCES

Invoking Rights: To remain silent - this revocation MUST BE UNAMBIGUOUS

Remember: Police may reinitiate questioning after D has invoked right to silence if they 1) SCRUPULOUSLY HONOR the detainees request, 2) wait a SIGNIFICANT amount of time, 3) the person was RE-MIRANDIZED, and 4) questions were limited to a crime that was NOT THE SUBJECT OF THE EARLIER QUESTIONING

Question 34

Confessions: Fifth Amendment Miranda Doctrine - Invoking Right to Counsel + Remember Police Required Conduct After Invocation

Answer 34

Invocation must be UNAMBIGUOUS REQUEST

Remember: If the accused invokes, police must cease ALL QUESTIONS, until 1) the accused is given an attorney, or 2) the accused initiates further questioning

Question 35

Confessions: Fifth Amendment Miranda Doctrine - 14 Day Rule

Answer 35

The prohibition against questioning a detainee after he requests counsel lasts the ENTIRE TIME after detainee is in custody, PLUS 14 MORE DAYS after detainee is out of custody, after which detainee may be questioned regarding same matter upon receiving FRESH MIRANDA WARNINGS

Question 36

Confessions: Fifth Amendment Miranda Doctrine - Remedy for Violation of Miranda Warning + Exception + Remember Public Safety Exception

Answer 36

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

Exception: A confession obtained in violation MAY be used to IMPEACH CREDIBILITY of D’s testimony

Remember: If police interrogation is reasonably prompted by CONCERN FOR PUBLIC SAFETY, responses to the question may be used in court, even though a suspect is in custody and Miranda warnings are NOT GIVEN

Question 37

Exclusionary Rule

Answer 37

Someone who has been the victim of an illegal search or coerced confession can have the product of that illegal search be EXCLUDED from ANY SUBSEQUENT criminal prosecution

Question 38

Exclusionary Rule: Scope/Limitations

Answer 38

1) Does NOT apply to GRAND JURY PROCEEDINGS (a grand jury W may be compelled to testify based on ILLEGALLY SEIZED evidence);
2) Not available in CIVIL PROCEEDINGS;
3) Not available in PAROLE REVOCATION PROCEEDINGS;
4) Not available for IMPEACHMENT PURPOSES (ONLY for D’s testimony);
5) Not available for KNOCK AND ANNOUNCE rule

Question 39

Exclusionary Rule: Fruit of the Poisonous Tree Doctrine + Remember Miranda Violations

Answer 39

ALL EVIDENCE obtained or derived from POLICE ILLEGALITY is excluded

Remember: This DOES NOT apply to Miranda violations, UNLESS police act in bad faith in obtaining such information

Question 40

Exclusionary Rule: Exceptions to FOTPT +Tip The 3 In’s of Breaking the Chain

Answer 40

There are (3) ways the gov’t can break the chain between an original, unlawful police action:

1) The gov’t could show that it had an INDEPENDENT SOURCE for that evidence;
2) INEVITABLE DISCOVERY, police would have found anyways;
3) INTERVENING ACTS OF FREEWILL on the part of the D

Tip: InInIn (Independent, Inevitable, and Intervening)

Question 41

Exclusionary Rule: Live Witness Testimony + In-Court Identification

Answer 41

Live Witness: It is DIFFICULT to have live witness testimony excluded as the FOTPT

In-Court: the D MAY NOT EXCLUDE the W’s in-court identification on grounds that it is FOTPT

Question 42

Exclusionary Rule: Good Faith Exception + Exceptions

Answer 42

An officer’s GOOD FAITH RELIANCE on an invalid arrest or search warrant OVERCOMES defects with the probable cause or particularity

Exceptions:

1) Affidavit underlying that warrant is so LACKING IN PROBABLE CAUSE that no reasonable police officer would have relied on it,
2) The affidavit underlying the warrant is SO LACKING IN PARTICULARITY that no reasonable police officer would have relied on it;
3) The police officer or prosecutor LIED TO or MISLED the magistrate when seeking warrant; and
4) If the magistrate based, and therefore wholly ABANDONED his or her NEUTRALITY

Question 43

Exclusionary Rule: Harmless Error Test + Burden on Appeal

Answer 43

A conviction will NOT NECESSARILY be overturned because improperly obtained evidence will be UPHELD if the conviction would have resulted despite the improper service

Burden: On appeal, the government bears the burden of showing BEYOND A REASONABLE DOUBT that the admission was harmless

Question 44

Trial: Prosecutor Duty + Remedy for Violation

Answer 44

Prosecutor must disclose EXCULPATORY EVIDENCE

Remedy: If a prosecutor fails to disclose evidence, whether willful or inadvertent, may be grounds for reversal IF:

1) the evidence if FAVORABLE TO THE D, AND
2) prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the info been disclosed

Question 45

Trial: Right to Trial by Jury - Serious Offenses + Remember Minimum Number of Jurors

Answer 45

The right to trial by jury attaches ANYTIME the D is tried for an offense which that MAXIMUM SENTENCE EXCEEDS 6 MONTHS

Remember: The MINIMUM number of jurors permissible is SIX, if the court uses the minimum number, the verdict MUST BE UNANIMOUS (no protected right to unanimous 12 juror verdict)

Question 46

Trial: Right to Impartial Jury + Remember Impair or Prevent Performance

Answer 46

You have the right to have the jury pool reflect a FAIR CROSS-SECTION of the community

Remember: The standard determine whether a prospect juror should be excluded for cause is whether the juror’s view would prevent or SUBSTANTIALLY IMPAIR THE PERFORMANCE of her duties

Question 47

Trial: Right to Counsel + Right to Waive

Answer 47

A criminal D’s right to counsel applies to ALL CRITICAL STAGES of a prosecution, including trial

Remember: D has the right to waive counsel as long as he it is KNOWING and INTELLIGENT, and he is COMPETENT to proceed

Question 48

Trial: How to Prove Ineffective Assistance of Counsel + Remember Particular Errors

Answer 48

There must be deficient performance by counsel, AND there is a reasonable probability the result of the proceeding would HAVE BEEN DIFFERENT

Remember: Typically, such claim can only be made out by SPECIFYING PARTICULAR ERRORS of trial counsel

Question 49

Trial: Right to Confront a Witness (Confrontation Clause)

Answer 49

The absence of face-to-face confrontation between D and accused DOES NOT violate 6A when preventing such confrontation serves an IMPORTANT PUBLIC PURPOSE and the reliability of the W testimony is otherwise assured

Question 50

Trial: Admissibility of Co-Defendant’s Confession

Answer 50

A confession implicating a co-D is prohibited and INADMISSIBLE at their trial

Question 51

Trial: Burden of Proof for Gov’t + Exception

Answer 51

The state must prove EVERY element of a crime BEYOND A REASONABLE DOUBT

Exception: Affirmative defenses of insanity and self-defense shift burden of proof to D

Question 52

Trial: Death Penalty for Felony Murder in Accomplice Trial

Answer 52

The death penalty for felony murder where the D, AS AN ACCOMPLICE, did not take or attempt or intend to take life, however death penalty may be imposed where he participated in a major way that resulted in a murder and he ACTED WITH RECKLESS INDIFFERENCE FOR HUMAN LIFE

Question 53

Double Jeopardy and Self Incrimination: When Does Jeopardy Attach + Remember Civil + Exceptions Permitting Retrial

Answer 53

Jury Trial: When JURY IS SWORN

Bench Trial: When FIRST WITNESS IS SWORN

Remember: Does not generally attach when the proceedings are civil

Exceptions: 1) Jury is unable to agree on a verdict (hung jury)

2) Mistrials for manifest necessity (e.g. D has heart attach)
3) Retrial after successful appeal (cannot be retried for a more serious offense)
4) Breach of an agreed upon plea bargain by D

Question 54

Double Jeopardy and Self Incrimination: Same Offense/Blockburger Test + Remember Lesser Included Offenses + Remember Different Sovereign

Answer 54

Two crimes DO NOT constitute the same offense IF each requires proof of AN ADDITIONAL ELEMENT that the other does not (i.e. charged for murder and hit and run)

Remember: Being put in jeopardy for a greater offense BARS RETRIAL for any lesser included offenses (you cannot be retried for a lesser assault)

Remember: Double jeopardy is NOT BARRED for the same offense in DIFFERENT SOVEREIGNS (e.g. can be tried in federal court and state court)

Question 55

Double Jeopardy and Self Incrimination: Privilege Against Self-Incrimination + Remember Civil Proceedings Before Criminal

Answer 55

5A privilege against self-incrimination can be asserted BY ANYONE in ANY CASE, must be asserted the FIRST TIME the question is asked or waived

Remember: The privilege MUST be claimed in a civil proceeding to prevent the privilege from being waived for a later criminal prosecution

Scope:

Question 56

Double Jeopardy and Self Incrimination: Privilege Against Self-Incrimination - Scope of Protection + Remember Difference from Physical Evidence

Answer 56

Protects citizens from COMPELLED TESTIMONY

Remember: This does NOT protect citizens from having the gov’t e PHYSICAL EVIDENCE in ways to incriminate them

Question 57

Double Jeopardy and Self Incrimination: Fifth Amendment and Prosecutorial Conduct + Exception + Remember Harmless Error

Answer 57

It is UNCONSTITUTIONAL for the prosecutor to make a negative comment on the D’s failure to testify OR on a D from remaining silent after being given Miranda rights

Exception: The prosecutor CAN comment on the D’s failure to take the stand when the comment is in response to defense counsel’s assertion that he was not allowed to explain his side

Remember: If prosecutor mentions D’s silence, harmless error test applies

Question 58

Double Jeopardy and Self Incrimination: Elimination of the Fifth Amendment Privilege

Answer 58

Can be eliminated in three ways:

1) Under grant of IMMUNITY
2) no possibility of incrimination (e.g. SOL has run on underlying crime), and
3) Waiver

Question 59

Grand Juries Right to Counsel, Miranda Warnings, or Evidence Excluded

Answer 59

No right to counsel, Miranda warnings, or right to have evidence excluded in grand jury proceedings

Question 60

Writ of Habeas Corpus

Answer 60

After all appeals are exhausted, a D may appeal BY CIVIL PROCEEDING using a writ of habeas corpus

Question 61

Steps to Search and Seizure Essay

Answer 61

1) Is there gov’t conduct?
2) Is there a REOP?
3) Is there a valid warrant? (particularity and probable cause)
4) If no, is officer’s good faith defense effective?
6) Exceptions to warrant requirement?

Question 62

Steps to Miranda Essay

Answer 62

1) Is there custody?
2) Is there interrogation?
3) Was there a valid waiver?
4) Was there a valid indication of rights (unambiguous)?