Criminal procedure

Question 1

Any evidence obtained due to unreasonable search or seizure without valid warrant?

it can still be used

Answer 1

The 4th Amendment (applicable to the states through the 14th Amendment)protect people against unreasonable searches and seizures by the government, フォースは守る

exclusionary rule

*Any evidence obtained due to unreasonable search or seizure without valid warrant may be suppressed or exclude from evidence to prove his guilt. unless a warrant exception applies.( Further, under the fruit of the poisonous tree doctrine, all evidence gathered as a result of an unlawful search will be suppressed as well unless the government can show that the taint of the unconstitutional activity has been sufficiently attenuated.)

• Because there is no indication that the officer had a warrant for any of the activity,his actions are unreasonable if they constitute a search and if no valid warrant exception applies…(warrant発行されていなければ内容には触れずに定義と例外を検討）*
• it can still be used for impeachent* in civil and other proceedings

if discovery was inevitable (or if there was and independent source or the taint disapperared)

The exclusionary rule is meant to prevent officers from acting improperly , so if the officer acted in good faith reliance on the warrant the evidence will not be suppressed

There is no bad faith underlying the warrant here, and no facts indicate that the magistrate was biased

Question 2

items obtained in violation of the fourth amendment may not be…

Answer 2

Under the exclusion rule items obtained in violation of the fourth amendment may not be introduced at trial to prove guilt.

The exclusionary rule is meant to prevent officers from acting improperly , so if the officer acted in good fait_h reliance on the warrant_ the evidence will not be suppressed

Question 3

A search occurs

(you forget,,)

Answer 3

A search occurs when government action violates a reasonable expectation of privacy（”REOP”).　

*The home is the most protected place and the curtilage is also protected as it it were home itself * commercial properties in highly regulated industries have a lower expectation of privacy\

If The third party acts under direction or control of a law enforcement,then the state has taken sufficient action for the 4th amendment to apply

Question 4

A seizure occurs eavesdropping conversation?

Answer 4

A seizure occurs when government exercises control over property the person has ownership of , or possessory interest in. Eavesdropping conversations A speaker has no fourth amendment claim if he makes no attempt to keep a conversation private.

Question 5

Government action(search and seizure)

Answer 5

*if a third person not a police officer acts under the direction or control of police officers there is sufficient government action Here, the search was done by the police, direct government agent However it may be argued that

Question 6

In order to make a arrest of a person in public place ,

Answer 6

Warrant Requirement In order to make a arrest of a person in public place ,

there must be a probable cause for the arrest (reasonable grounds to believe that the felony has been committed and that the person before him committed or misdemeanor is comitted in his presence)

In order to make a non emergency arrest of a person in his home there must be sufficient warrant

Question 7

In order to search and seize evidence, there must be a *** **** must be 1 2 3

Answer 7

there has to be a sufficient warrant.

理由・描写・発行pro des partial

A sufficient warrant must be based on probable cause, describes in detail the place to be searched and the item to be seized and is issued by an impartial neutral magistrate.

Question 8

if the search or seizure was done without warrant

Answer 8

Here no warrant was issued Thus an exception to the warrant requirement must apply to ## otherwise the evidence will be surpressed Because no exceptions to the warrant requirement applies to the ## the evidence will be surpressed

Question 9

Exception to warrant requirement Ann 1 2 3 4 5 6 7 8

Answer 9

One exception to the warrant requirement is #### Ann Arbor plays cool succer hot in chelsy studium

1 search incident to lawful arrest

2 automobile exception(probable cause)

3 plain views(immediately apparent)

4 consent

5 stop and frisk(reasonable suspicious without probable cause)

6 hot pursuit and evanescent evidence(

15 minutes behid is not hot persuit

7 inventory search

8 checkpoint (stopping car is 4th amendment seizure)

Question 10

Search incident to lawful arrest

Answer 10

One exception to the warrant requirement is the search incident to lawful arrest In a lawfull arrest the police may search the person and wingspan.

Question 11

Automoble exception. His exception allows the warrantless search of The rational is that 1 and 2

Answer 11

One exception to the warrant requirement is Automoble exception. An officer can search a car if there is probable cause to believe the the vehicle hascontraband or weapon This exception allows the warrantless search of any container in the vehicle and the belongings of the people inside the vehicle. The rational is that exgencies of the car’s mobility and the lesser expectation of privacy

Question 12

if something apparently seems the heroin fell out from the person the police was asking May the police search the item without warrant?

Answer 12

Plain view An officer may seize property as long as his view is lawful** and it must be **immediately apparent that the item is evidence of crime

Question 13

consent

Answer 13

A police may make a warrantless search if they have a voluntary and intelligent consent.

A woman as the driver and sole person in the vehicle , had authority to consent to the search of the vihicle

check point -consent- plain view set

Question 14

May police officer can stop or seize a person without probable cause?

Answer 14

1 Stop and frisk A police officer can stop a person without probable cause if he has an articulate and reasonable suspicion of criminal activity.

(ask why ?)

2 A police officer can conduct a frisk*patting down outer closing) if he reasonably believes that the person may be armed and presently dangerous.

Question 15

Hot pursuit of ( ) and evanescent evidence

Answer 15

If the police have probable cause a fleeing individual has committed a felony they may make a warrantless search and seizure and pursue the felon into a private building to arrest. Evidence that would disappear if the police waited to obtain a warrant may be seized without warrant.

Question 16

May office search in the vehicle at the checkpoint 1) 2)

Answer 16

One exception to the warrant is when the search occurs at checkpoint .

they must be 1)neutral in stopping everyone who passed through the checkpoint 2)designed to serve purpose closely related to a particular problem pertaining to automobiles (not burglary) (for officer’s safety or preservation of evidence)

Cf to combat crime by randomly stopping automobile is not closely related to automobile therefore ilegal seizure

Question 17

Why the police officer have to give the D Miranda warning?

Answer 17

The 5 th amendment (applicable to the states through the 14th Amendment)prevents coerced testimonial confessions by requiring the police to give the defendant Miranda warning before custodial interrogation. 5th は自白を防ぐ

Question 18

Generally , a person has the obligation to testify truth under oath.

Howevr invocation of the privilege relieves the person from such obligation.(A person must assert the privilege when he is first asked under oath or he has waived the privelege in all subsequent criminal prosecution)

*5th amendment privilege against self incrimination

may be eliminated by.. 1 2 3

Answer 18

*5th amendment privilege may be eliminated

1)by grant of immunity

A witness may be compelled to answer if he is granted adequate immunity from prosecution.

Use and derivative use immunity means the prosecutor must not use the person’s testimony or anything derived from it to convict him( however can prosecute based on evidence derived from a source independent )

2)no further possibility of incrimination

ex statute of limitation has run

3)waiver

criminal D , by taking the witness stand waives his 5th privilege to the extent necessary to subject him to any cross examination.

A witness waives his privilege, only if he dicloses the incriminating information

Question 19

Custody A person is in custody …

interrogation is

Answer 19

Custody A person is in custody where a reasonable person would believe they are no free to leave.

Interrogation is any words or conduct

would likely to elicit response from D

Question 20

Miranda warning A defendant must be told …

Answer 20

Miranda warning A defendant must be told

prior to custodial interrogation

1 the right to remain silent

2 anything said can be used against him in court

3 right to presence of an attorney

4 if he cannot afford an attorney the court will appoint one

Question 21

A party can waive their Miranda rights if …

Answer 21

Miranda waiver A party can waive their Miranda rights if it is done knowingly intelligently and voluntarily.

Question 22

Questioning is prohibited after D has…

Answer 22

Questioning is prohibited after D has invoked his right to counsel and lasts the entire time the D is in custody for interrogation purpose, plus 14 days after the detainee has returned to his normal life.

When D invokes his right to remain silent all questioning is supposed to cease

Accordingly, D’s confession to office will be suppressed as a violation of his fifth amendment rights.

Question 23

the exclusion rule extends to secondary evidence obtained as… under

Answer 23

Exclusionary Rule - Suppression Remedy Evidence seized in violation of the fourth amendment will be suppressed at trial.

Further, under the fruit of the poisonous tree doctrine,

all evidence gathered as a result of an unlawful search will be suppressed as well

unless the government can show that the taint of the unconstitutional activity has been sufficiently attenuated.

This is often shown

1) where sufficient time has gone by between the illegality and the discovery of the evidence, or
2) where there is an independent source for the evidence,
3) or where it would have been inevitably discovered.

Question 24

Secondary evidence may be admissible if 1)2)3)

Answer 24

unless the government can show that the taint of the unconstitutional activity has been sufficiently attenuated.

This is often shown

1) where sufficient time has gone by between the illegality and the discovery of the evidence, or
2) where there is an independent source for the evidence,
3) or where it would have been inevitably discovered.

As to violation of Miranda, physical fruit of a statement obtained in violation of Miranda are admissible

if failure to give Miranda warning is not purposeful.

Question 25

Under 6 th amendment right to counsel A suspect has a right tothe 1) 2) 3) Pretrial identification violate D's due process right if

Answer 25

Under 6th amendment right to counsel A suspect has a right to the presence of an attorny **at any post charge** **lineup and show up** not photo arrays Pretrial identification _violate D's due process right and excluded from the evidence_ to prove the guilt if it is so _unnecessary suggestive_ and sosubstantially likely to produce misidentification _as to make the identification unreliable_ However the witness is allowed to make a incourt identification if the state can show an independent source for in court identification.

Question 26

Under 6 th amendment D has 1) 2) 3)

Answer 26

Under 6th amendment Cocojuice66 1) D has a right to **counsel** (waiver of this right must be knowingly and intengently) when D is formally charged 2) D has a right to **jury trial** (maximum authorized sentence exceed 6 month) 3) D has a right to **confront adverse witness**

Question 27

confession of co defendant that implicate the other is prohibited unless 1) 2)

Answer 27

Under 6th Amendment D has a right to confront adverse witness It include codefendant Confession of coD thtat implicate the other D is prohibited unless 1)all portion reffering to the other can be eliminated or 2) the confession of non testifying co D is being used to rebut the D's claim

Question 28

if there is codefendant A trial court has discretion whether to grant a motion to ... under the 6th Amendment A court must grant such a motion if ...

Answer 28

While a trial court has discretion whether to grant a motion to sever. A court must grant such a motion if a defendant show there will be manifest prejudice from being tried jointly, the co-defendant's testimony would have been officially exculpatory

Question 29

The double jeopardy clause

Answer 29

5th amendment applicable by 14th amendment forbids the government from prosecuting or punishing a defendant twice for the same action by the same sovereign. \* two different states are separate sovereigns!! \*doesn't apply to trials by separate sovereigns

Question 30

As general two crimes are the same offence

Answer 30

As general two crimes are the same offence unless each crime require proof of an additional element that the other does not require # the charge of manslaughter has additional elements that reckless driving does not have therefore reckless driving is not a lesser included offense of manslaughter

Question 31

Jeopardy attaches when..

Answer 31

Jeopardy attaches when the jury is impaneled and sworn in a jury trial or when the first witness is sworn in a bench trial

Question 32

Direct verdict dismissing the case

Answer 32

Direct verdict dismissing the case If the judge concluded that there is at least one element og the crime that no jury could find to have been proved beyond a reasonable doubt, the judge can and should direct verdict for

Question 33

For the court to properly accept a guilty plea \*\*\*\* 1) 2) 3)

Answer 33

A guilty plea waives various right including the right to a jury trial under the 6th Amendment, For the court to properly accept a guilty plea The judge must be sure that the defendant knows and understands 1)the nature of charge against him and the crucial elements of the crimes 2) the maximum possible penalty and any mandatory minimum 3)he has a right to a jury under the 6th and voluntarily waive that right

Question 34

Entrapment defense

Answer 34

The Due Process Clauses requires that in all criminal cases the government prove guilt beyond a reasonable doubt. The prosecution must have the burden of proving each element of the crime charges. The defense of entrapment requires a defendant to show (i) inducement and (ii) a lack of predisposition. Inducement occurs when a criminal design originates with the police. A lack of predisposition occurs when the defendant was not otherwise intending to commit the crime, but only did so because the police applied pressure or some sort of other unfair deceit. _The defendant must establish both elements **by a preponderance of the evidence** in order to make out the defense of entrapment._

Question 35

the striking of potential jurors on the basis of theire race is

Answer 35

Striking jurors simply on the basis of their race violates equal protection under the law.(conviction should be reversed on appeal) the challenges to the racially motivated use of preemptory challenges against jorors can be raised by any defendant.

Question 36

directed verdict(JMOL) in criminal case

Answer 36

The judge may use a directed verdict to find a S not guilty The judge may not use a directed verdict to find aD guilty because the D has the right to a jury trial.

Question 37

question by the police at the checkpoint require Miranda warning?

Answer 37

_Traffic stops are fenerally not considered custodial_ because they are temporary and do not present the same inherently coercive pressures as station house interrogations

Question 38

The Sixth Amendment right to counsel protects

Answer 38

The Sixth Amendment right to counsel protects a criminal defendant's right to be represented by an attorney in all critical stages of prosecutory action by the state. The Sixth Amendment right includes the right to counsel of choice or to decline the right of representation if the defendant is competent to refuse. Right of Self-Representation The Sixth Amendment includes a right of self-representation. The court must grant the right if the defendant is competent. To be competent to stand trial, the defendant must understand the nature of the proceedings against him and be aware of the consequences of the proceedings.

Question 39

May the prosecution use that silence after D's arrest against D at trial to imply that the silence had a particular meaning?

Answer 39

No The D had a right to remain silent after her arrest as part of her fifth amendment right not to incriminate herself. While the harmless error rule would be considered , using someone's silence against him at trial is not a mere harmless error and therefore reversal would likely be proper

Question 40

using the drug detection dog on the porch constitute search?

Answer 40

bringing a drug-sniffing dog to the front porch of a home **for the purpose of searching for drugs** is a "search" under the fourth amendment. Although the front door is typically held open **under implied consent doctrine,** the use of a drug-sniffing dog **exceeds this consent** and is therefore a trespass. Curtil**age** is the area immediately around a home and is intimately tied with the activities of the home. Areas that are not curtilage are considered **"open fields"**. _Sensory Enhancing Technology_ However, even in the open fields, the government action is a "search" **if they use "sensory enhancing technology" not available to the general public.** Here, a drugsniffing dog may meet this test (a plurality of the Supreme Court feels it does). Thus, even if the dog were kept in open fields, the use of a drug dog would still constitute a search

Question 41

valid warrantless arrest

Answer 41

A police officer may arrest a person without warrant when he has reasonable ground to believe that a felony has been committed and that the person before him committed or when misde mean er is committed in his presense

Question 42

guilty plea is Judge must determine that the pleasi ( ) and () The judge must be sure that 1) 2) 3) 4)

Answer 42

guilty plea is a waiver to the 6th Amendment right to jury trial Judge must determine that the plea is voluntary and intelligent The judge must be sure that D knows and understands 1) nature of charge 2) maximum possible penalty and any mandatory minimum 3) that he has a right not to plead guilty and demand a trial 4) if he does plead guilty he waive the righ to jury trial and judge wil directly goto sentencing.