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The Bar!!!! > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

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1
Q

Whose actions are covered by the constitution as far as criminal procedure concerns go?

A

the government

private citizens acting as government agents (i.e., government asked them to do something)

defense counsel for 6A purposes

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2
Q

What limits exist on what cops can do in a public place?

A

Nothing except seizure rules (i.e., they can tail someone, approach anyone in a public place)

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3
Q

When has a seizure occurred?

What is the test?

A

When an officer,

by means of PHYSICAL CONTACT or a SHOW OF AUTHORITY

INTENTIONALLY terminates/restrains a person’s freedom of movement

Test: whether a REASONABLE PERSON would feel free to DISREGARD the officer and go on their way

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4
Q

What is a Terry stop?

A

when an officer STOPS an individual,

due to REASONABLE and ARTICULABLE SUSPICION

to believe suspect is/is about to be engaged in criminal behavior

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5
Q

What is allowed during a Terry stop?

A

pat down for WEAPONS, not for EVIDENCE

BUT if the pat down reveals objects that are OBVIOUSLY CONTRABAND, those can be seized

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6
Q

Is an officer’s mistake of law allowed to give rise to reasonable suspicion to make a Terry stop?

A

yes, IF IT’S A REASONABLE MISTAKE of law

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7
Q

What result for seized evidence if a Terry stop is NOT based on adequate suspicion, but basis for lawful arrest is developed during stop?

A

evidence seized during arrest CAN BE USED AT TRIAL

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8
Q

If an arrest is unlawful, can evidence seized during an UNLAWFUL arrest?

A

CANNOT be used at trial (generally, lol)

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9
Q

What is required for a cop to stop a car?

A

REASONABLE SUSPICION*

*unless checkpoint, then no RAS required

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10
Q

What can officers do after stopping a car?

A

Pat down occupant for WEAPONS if they have REASONABLE SUSPICION that he may be armed

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11
Q

What is required to make an arrest, generally?

A

PROBABLE CAUSE to believe that individual has committed a crime

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12
Q

Are pretextual arrests okay? (i.e., stopping someone for failing to stop at a stoplight even though you are actually stopping him because you think, without RAS, that he may have drugs)

A

YES, assuming there is no EP issue

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13
Q

What is required to get an arrest warrant?

A

Finding of PROBABLE CAUSE

by a NEUTRAL AND DETACHED MAGISTRATE

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14
Q

What must go on a warrant?

A

NAME of person

the OFFENSE

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15
Q

What does an ARREST warrant authorize cops to do if the person is at home?

What does it not authorize?

A

allows officers to ENTER HIS HOME to arrest him

does NOT authorize cops to enter a THIRD PARTY’S home or business

does NOT authorize cops to SEARCH premises for individual (need search warrant or exception)

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16
Q

When can a cop arrest someone INSIDE A DWELLING?

A

1) with arrest WARRANT
2) there are EXIGENT CIRCUMSTANCES (e.g., felony hot pursuit, danger to others)
3) CONSENT to enter home

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17
Q

When can a cop make a WARRANTLESS ARREST?

A

in PUBLIC,

for ANY CRIME committed in PRESENCE of cop,

for a FELONY committed OUTSIDE cop’s presence

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18
Q

What can a cop search when arresting someone?

A

cops can make a CONTEMPORANEOUS search of:

1) the PERSON ARRESTED, and
2) IMMEDIATE SURROUNDING AREAS in order to:

a) find WEAPONS or other DANGERS, and
b) prevent DESTRUCTION OF EVIDENCE

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19
Q

What constitutes the immediate area that a cop can search upon making an arrest when:

arrested on the street?

at home?

in a car?

A

street: suspect and his WINGSPAN
home: suspect and IMMEDIATE ARREST AREA
car: PASSENGER COMPARTMENT IF SUSPECT STILL HAS ACCESS

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20
Q

When can cops search an entire car for evidence?

A

1) search warrant
2) with PROBABLE CAUSE of CONTRABAND
3) when it’s impounded (for inventory purposes)

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21
Q

Can cops search a cellphone during an arrest?

A

they can SEIZE the cellphone during an arrest and check it for DANGERS, but they need a WARRANT to search the phone’s information

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22
Q

What is a “search”?

A

Occurs when THE GOVERNMENT’S conduct violates a REASONABLE EXPECTATION OF PRIVACY

can be physical intrusion or without physical intrusion (e.g., special technology)

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23
Q

Where do you have and not have an expectation of privacy?

A

YES expectation of privacy:

  • homes
  • backyard of home (curtilage)
  • hotel room
  • offices
  • luggage
  • car (but limited)

NO expectation of privacy:

  • public streets
  • open fields (even if private property)
  • garbage left on street
  • abandoned property
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24
Q

What is required to conduct a search of a place with reasonable expectation of privacy, generally?

What is required of that thing that’s required?

A

a SEARCH WARRANT

requires:

1) issued by NEUTRAL magistrate
2) based on PC that items sought are FRUITS, INSTRUMENTALITIES, or EVIDENCE of crime
3) must describe property and place to be searched WITH PARTICULARITY

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25
Q

Is wiretapping a search? Any extra requirements if so?

A

YES:

  • PC and WARRANT
  • specifically ID which CONVERSATIONS are to be intercepted
  • END DATE
  • MINIMIZATION (stop listening when it’s private)
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26
Q

What are the seven main exceptions to the warrant requirement?

A

the seven ESCAPES:

1) exigent circumstances
2) search incident to arrest
3) consent
4) automobiles
5) plain view
6) evidence obtained from administrative searches
7) stop and frisk

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27
Q

What counts as exigent circumstances such that there is an exception to a search warrant?

When does this exception not apply?

A

exigent circumstances = HOT PURSUIT or IMMEDIATE DANGER

does not apply when cops CREATE the exigency

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28
Q

Do cops need a warrant for a DUI blood draw?

A

YES, unless EXIGENT CIRCUMSTANCES

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29
Q

Can DNA samples be collected, without a warrant, as part of a search incident to arrest?

A

YES!

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30
Q

Must an officer warn a person of their rights when they give consent to be searched/have a bag or place searched without a warrant?

A

NOPE!

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31
Q

Can consent to a warrantless search be obtained via outright deception?

A

YES

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32
Q

How does the consent exception to the search warrant requirement apply to third parties?

A

cops CANNOT search over objection of PRESENT OCCUPANT

officers CAN search if suspect is not present but other occupant consents

if one occupant consents and one does not, evidence cannot be used against suspect who did not consent

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33
Q

What is the plain view exception to the search warrant requirement?

A

if cops are LEGALLY PRESENT,

they can seize any item in PLAIN VIEW or PLAIN SMELL

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34
Q

What is the administrative search exception to the search warrant requirement?

A

no search warrant needed for administrative searches

TWO KINDS:

1) administrative warrants (e.g., fire inspection)
2) warrantless administrative searches, e.g.:
- TSA
- international borders,
- highly regulated industries (liquor stores, gun shops),
- students in public schools,
- special needs searches (drug testing metro employees after accident)
- drunk driving roadblocks

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35
Q

To whom does the 5A privilege against self incrimination extend?

A

natural persons only! not corporations!

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36
Q

To what does the 5A privilege against self incrimination apply?

A

TESTIMONIAL evidence, NOT PHYSICAL evidence

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37
Q

When does the 5A privilege against self incrimination apply?

A

when there’s ANY REASON to believe the testimony may lead to future criminal prosecution

if IMMUNITY has been granted, no privilege

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38
Q

What is the starting point for analyzing a statement made to cops, based on Miranda?

A

CUSTODIAL INTERROGATION ONLY

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39
Q

What defines custodial interrogation for Miranda purposes?

A

whether reasonable person would be FREE TO LEAVE

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40
Q

Is someone in prison “in custody” for purposes of miranda?

A

NO, not if he can go back to his cell

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41
Q

What is an interrogation for miranda purposes?

A

when a cop asks QUESTIONS or CONDUCT that he knows/should know will ELICIT A RESPONSE

does not include VOLUNTEERED statements

does not include ROUTINE booking questions

42
Q

What are the miranda warnings?

A

right to remain silent

any statement you make may be used against you in court

right to an attorney and have attorney present during questioning

right to have an attorney appointed if you cannot afford one

43
Q

Must the miranda warnings be perfectly communicated?

A

no magic words, substance is all that needs to be communicated

44
Q

How are the miranda rights invoked? When can/can’t cops question based on invocation?

A

1) right to remain silent: must affirmatively state it, silence is not enough
- -cops can return, re-mirandize, and resume questioning after SUBSTANTIAL period of time

2) right to counsel: must be affirmative (“i want a lawyer”)
- -must cease interrogation until (a) lawyer is present or (b) D affirmatively initiates contact with the cops

45
Q

Must cops alert D that his lawyer is trying to reach him if they know that’s true?

A

NOPE, fuck the police!!

46
Q

What is the main exception to Miranda?

A

PUBLIC SAFETY EXCEPTION

47
Q

What makes a confession involuntary?

A

threats of illegal acts (we will arrest your kids, we’ll beat you up, etc)

NOT failure to mirandize

48
Q

Is a confession admissible if it’s the product of deceipt?

A

YES

49
Q

What are the consequences of an involuntary confesion?

A

NEVER ADMISSIBLE

evidence obtained based on it is PRESUMPTIVELY INADMISSIBLE

50
Q

What standard is used when an appellate court is considering whether to overturn a conviction based on an involuntarily obtained confessoin?

A

HARMLESS ERROR

51
Q

What are the consequences of a statement made in violation of miranda?

A

inadmissible in prosecution’s CASE IN CHIEF,

but ADMISSIBLE for impeachment of D

EVIDENCE obtained as a result of a voluntary statement made in violation of Miranda is ADMISSIBLE

52
Q

How is the 6A right to counsel invoked?

A

AUTOMATICALLY ATTACHES

once there has been an INDICTMENT, INFORMATION, OR OTHER FORMAL CHARGES

Exists unless D KNOWINGLY AND INTELLIGENTLY WAIVES the right

53
Q

To what charges does the 6A right to counsel apply?

A

OFFENSE-SPECIFIC: only for those things he has been charged with

unrelated charges, no right

54
Q

What’s the rule re: 6A’s application when in/out of custody?

A

6A R2C applies WHETHER IN CUSTODY OR NOT

55
Q

WHEN does the 6A R2C apply?

A

which crimes: applies to all FELONY PROSECUTIONS and to any MISDEMEANORS in which jail time/suspended jail sentence is imposed

when: all CRITICAL stages of prosecution. NOT:
- investigative lineups (pre-indictment)
- witnesses looking at photo arrays
- discretionary appeals
- post-conviction (habeas) proceedings

56
Q

What rights does a D have with regard to photo arrays?

A

neither D nor his lawyer has right to be present, but cops must turn over array to D

57
Q

What rights does a D have with regard to pre-indictment lineups?

A

D has no R2C here

58
Q

What rights does a D have with regard to post-indictment lineups?

A

D has a right to have counsel present

if violated, evidence of ID at that lineup must be excluded

59
Q

How will a court consider a D’s motion to suppress evidence that a witness picked D out of a lineup?

A

whether lineup was IMPERMISSIBLY SUGGESTIVE

if yes, it CAN exclude

60
Q

What is required to admit an in-court identification?

A

prosecution must establish BY CLEAR AND CONVINCING EVIDENCE that witness would have identified the D, even WITHOUT the suggestive lineup

61
Q

What is the exclusionary rule?

A

Evidence obtained in violation of the 4th, 5th, ot 6th amendments cannot be introduced at TRIAL to prove a D’s guilt.

62
Q

When does the exclusionary rule apply?

A

at TRIAL, not at PRE-TRIAL proceedings like a grand jury

63
Q

Who has standing to challenge the admissibility of evidence as suppress-able under the exclusionary rule?

A

only a D whose rights were violated! if another person’s rights were violated and that led to the evidence, not excludable

FRUIT of a violation also excludable

caveat: if youre the passenger in a car that’s pulled over, your rights are also violated, not just the driver

64
Q

What are the exceptions to the exclusionary rule?

A

1) knock and announce: cops are supposed to knock and announce but if they don’t, no exclusion
2) inevitable discovery: if the evidence would have been discovered anyway through lawful means, 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 passage of time can remove taint of unconstitutional conduct
5) good faith exception (diff card)
5. 5) isolated negligence does not necessarily trigger the rule, exclusion must be able to meaningfully deter it

65
Q

What is the good faith exception to the exclusionary rule?

A

exclusionary rule keeps in evidence when:

1) officers relied on existing law that was later declared unconstitutional,
2) relied on warrant that, while FACIALLY VALID, is later found to be defective

+ good faith reliance

66
Q

When CAN’T officers rely on a warrant?

A

1) obtained by fraud
2) facially defective (too bare bones)
3) magistrate has wholly abandoned his judicial role

67
Q

How must all federal felony charges be initiated?

A

by INDICTMENT by a GRAND JURY

unless D waives indictment

68
Q

How must states initiate charges?

A

EITHER by grand jury indictment OR by INFORMATION

if information: must be prelim hearing before neutral judge to determine whether PC exists

69
Q

Can grand juries hear evidence that has been obtained illegally?

Hearsay?

A

YES and YES

NO RULES at a grand jury

70
Q

Do Ds have the right to testify or call witnesses at a grand jury?

A

NOPE

71
Q

Do witnesses at a grand jury have the right to counsel?

A

NOPE, but they can leave after each question and confer with their attorney

72
Q

How many grand jury members need to vote to indict for there to be an indictment?

A

just a majority, doesn’t need to be unanimous

73
Q

What is the test of a defendant’s competance to stand trial?

A

whether D COMPREHENDS NATURE OF PROCEEDINGS and can ASSIST lawyer in his defense

74
Q

What is required for a guilty plea to be valid?

A

D must KNOWINGLY and INTELLIGENTLY waive the rights

75
Q

What must a judge do in a plea allocution?

A

inform D of possible sentences;

inform D of immigration consequences;

make sure there’s a factual basis for plea;

determine that plea is not result of force, coercion, threats, or promises

76
Q

What is the general rule about the availability of bail?

A

bail is available unless D poses either a flight risk or a danger to the community

presumption in favor of bail

77
Q

When does a D have a right to a jury trial?

A

for all serious offenses

serious = authorized punishment is more than six months

78
Q

do state juries have to be unanimous?

A

no, two states allow non-unanimous juries

BUT if it’s 6 people, must be unanimous

79
Q

What is required of the jury pool?

A

must represent a fair cross-section o the community from which no distinctive group is excluded

80
Q

When does the SOL run for a crime?

A

when it occurs

for continuing crimes, when they END

81
Q

What factors does a court doing a speedy trial clause analysis look at?

A

1) length of delay
2) reasons for delay
3) whether D asserted his right to a speedy trial; and
4) risk of prejudice to D

82
Q

When can a court close proceedings to the public?

A

when there is a substantial likelihood of PREJUDICE to the defendant

83
Q

What does the DP clause require of judges regarding bias?

A

no ACTUAL nor APPARENT bias

84
Q

What are the four prosecutorial duties?

A

1) Brady: turn over all material exculpatory evidence to defense
2) not knowingly present false testimony
3) not contact/direct others to contact D outside presence of D’s attorney
4) not comment on D’s failure to testify at trial or make unfair remarks about D to jury

85
Q

Can a prosecutor comment on a D’s silence if it was pre- miranda rights attaching?

A

YES

86
Q

What is the brady doctrine?

A

prosecutors must turn over all material exculpatory evidence to defense

two types of evidence:

1) evidence that tends to show that D is NOT GUILTY; and
2) evidence that would enable D to IMPEACH credibility of state’s witnesses

material = disclosure would change outcome of case

87
Q

What must the judge do if co-defendants are repped by the same person?

A

WARN Ds that joint rep is a risk

give OPPORTUNITY to get their own lawyers

if not, get an AFFIRMATIVE WAIVER of Ds acknowledging risk

88
Q

What is the test to determine if a lawyer was effective under the 6A?

A

Strickland test:
1) did counsel’s PERFORMANCE fall below wide range of REASONABLE conduct that lawyers may engage in?

2) is there a REASONABLE PROBABILITY that, had counsel been effective, result would have been different?
- -either no guilty plea or no conviction

89
Q

On whom can the death penalty be imposed, constitutionally?

A

18+ person, not suffering from mental retardation or insanity, who killed someone

90
Q

What does double jeopardy protect you from?

A

protection from prosecution for the same offense after acquittal or conviction

protection from multiple prosecutions/punishments for same offense

91
Q

how do you determine whether two charges are the “same offense” for purposes of double jeopardy analysis?

A

blockburger test:

if each charge has an element that the other doesn’t, they’re different.

if lesser-included offense and higher offense, same

BUT:

  • same offenses with different victims can both be prosecuted
  • separate sovereigns can each try it separately
92
Q

When does jeopardy “attach”? so what?

A

when JURY is SWORN IN

in bench trial: when FIRST WITNESS is sworn in

acquittal: end of case
meaning: before these times, prosecutor can bring case again if it gets dropped or dismissed!

93
Q

if the jury convicts a D, and he appeals and gets it reversed, can he always be retried?

A

yes, unless the reversal was based on a finding of insufficiency of evidence

94
Q

what are the two kinds of mistrials? what is the effect of both?

A

manifest necessity (e.g., deadlock, defense counsel misconduct) = D CAN be retried

no manifest necessity: D CANNOT be retried

95
Q

What is the Apprendi Doctrine of the 6A?

A

judge cannot ENHANCE criminal sentence beyond max based on facts that are not decided by a jury beyond a reasonable doubt.

EXCEPT prior convictions don’t need to be found by a jury

e.g.: if statute says that max sentence for crime is 10 years, but is doubled if XYZ, jury must find XYZ for judge to go beyond 10 years.

96
Q

can the death penalty be imposed for felony murder?

A

not if D didn’t kill, attempt to kill, or intend to kill, or acted with reckless indifference to human life

97
Q

should charges be dismissed after an improper arrest of a defendant? (i.e., going to her friend’s house when he had a warrant, not hers?)

A

NO! nothing can come of a search from that house, but charges don’t get dropped

98
Q

what standard must a school administrator meet to search a student?

A

reasonable suspicion

99
Q

are strip searches permissible at school?

A

sadly, yes, with reasonable suspicion

100
Q

can statements taken in violation of Miranda be used to impeach the credibility of a defendant?

A

YES! they cannot be used as direct evidence, but they can be used to impeach if the witness is on the stand

101
Q

How high up can cops fly to look into a house or yard?

A

as long as they’re above 400 feet in the air, they’re good, because the law is SO FUCKING DUMB

102
Q

what happens if a defendant is denied her choice of private attorney for any reason?

A

REVERSE

The Bar!!!! (20 decks)

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