Criminal Procedure

Question 1

Fourth Amendment

Answer 1

protects individuals against unreasonable searches

and seizures of property and against unlawful arrests.

Question 2

Arrest

Answer 2

1.Warrant: An arrest warrant is generally not required for an arrest unless a person is arrested in his home. a.Probable cause required: An arrest warrant must be issued based on probable cause, which is a reasonable belief that the person violated the law.

Basick, Mary. Essay Exam Writing for the California Bar Exam (Bar Review) (p. 423). Wolters Kluwer. Kindle Edition.

Question 3

Routine Stops

Answer 3

1. Automobile stop: The police may randomly stop automobiles if there is a reasonable suspicion of wrongdoing based on an objective standard. All occupants may also be asked to exit the vehicle for any reason.
2. Checkpoints/roadblocks: The police may set up fixed checkpoints to test for compliance with laws relating to driving or if special law enforcement needs are involved, such as immigration. The stops must be based on some neutral, articulable standard. 3.Stop and frisk: Police may also stop and frisk individuals without arresting them
3. Stop and frisk: Police may also stop and frisk individuals without arresting them

Question 4

Search and Seizure of Property

Answer 4

A search warrant is required for a government search and seizure of property that is located where one has a reasonable expectation of privacy because a person has a right to be free from an unreasonable search and seizure.

1. Government action required: The Fourth Amendment search and seizure protections apply only against actions by the government. Government action includes individuals acting under the direction of the government.
2. Reasonable expectation of privacy: The defendant must have a reasonable expectation of privacy in the property or place being searched or seized for the Fourth Amendment protections to apply. This is based on a totality of the circumstances (e.g., one has a reasonable expectation of privacy in his home and its curtilage, such as a garage).

Question 5

Warrant Requirements

Answer 5

1. Based on probable cause: reasonable for the items to be searched:

a) Connected with criminal activities;
b) will be found in the place to be searched;
c) based on informant information sufficiency is determined by the totality of the circumstances

2. Issued by a neural and detached magistrate
3. Description: search warrant must contain a particular description of the premises to be searched and the items to be seized.
4. Knock and announce before execution. Can still execute if no one answers

Question 6

Search Incident to a Lawful Arrest

Answer 6

When the police are making a lawful arrest, they may search the area within the arrestee’s immediate control

Question 7

Protective Sweep under SILA

Answer 7

Under SILA, police may also conduct a protective sweep of all or party of the premises where an arrest takes place if they have a reasonable belief based on specific and articulable facts that other dangerous individuals may be present

Question 8

Vehicle under SILA

Answer 8

Under SILA, the police may search a car and is compartments if it is reasonable to believe that the arrestee might access the vehicle at the time of the search or the vehicle contains evidence of the offense causing the arrest

Question 9

Plain View

Answer 9

The police may make a warrantless search if they see an object or contraband in plain view, so long as they are legitimately on the premises or have a right to be in the position to obtain the view.

Question 10

Automobile

Answer 10

If police have probable cause to believe that a vehicle contains contraband or evidence of a crime, they may search the whole automobile and any container therein that might contain the objects for which they are searching

Question 11

Inventory Search

Answer 11

If the driver is arrested, the police may legally impound the car, transport it to the station house, and search it there without a warrant.

Question 12

Consent

Answer 12

The police may make a warrantless search if the person whose premises, items, or person will be searched voluntarily consents.

Question 13

Exigent Circumstances

Answer 13

The police may conduct a search or seizure without a
warrant if they have probable cause and it is necessary to:

1. Prevent imminent destruction of evidence,
2. Prevent imminent injury to persons, or
3. Search for a felony suspect of whom the police are in hot pursuit and reasonably believe has entered particular premises.

Question 14

Stop and Frisk

Answer 14

A police officer may stop and frisk a person if the police have a reasonable suspicion (based on the totality of circumstances) of criminal activity or involvement that is supported by articulable facts.

1. The brief detention may include a pat-down search of outer clothing for weapons if the suspect appears dangerous and under the plain feel doctrine, they may seize contraband discovered if its identity is immediately apparent. The officer may reach into the person’s clothing if he reasonably believes, based on his plain feel, is a weapon or contraband, but he cannot manipulate the clothing to get a better feel of the item.

Question 15

Fifth Amendment - Miranda

Answer 15

When a suspect is taken into custody by the police and is under interrogation, his confession will be admissible against him only if he has received the requisite Miranda warnings, informing him that he has the right to remain silent, that anything he says can be used against him, that he has the right to have an attorney present, and if he cannot afford an attorney, one will be appointed for him.

Question 16

Custodial

Answer 16

A suspect is “in custody” when a reasonable person would be live that he is not free to leave

Question 17

Interrogation

Answer 17

includes words or actions by the police that they should know are reasonably likely to elicit an incriminating response from the suspect.

-includes words or actions by the police that they should know are reasonably likely to elicit an incriminating response from the suspect.

Question 18

Public Safety Exception to Miranda Warning

Answer 18

Miranda warnings do not apply to questioning that is reasonably prompted by a concern for public safety.

Question 19

Re-Mirandize

Answer 19

Once the suspect has unambiguously invoked his rights under Miranda, the police cannot re-Mirandize the suspect in an attempt to get the suspect to speak, unless there has been a sufficient break in custody (14 days are deemed sufficient).

Question 20

Waiver of Miranda

Answer 20

A suspect may waive his Miranda rights, expressly or impliedly, but such a waiver is admissible only if it is voluntarily, knowingly, and intelligently made. Mere silence is insufficient to demonstrate a waiver.

Question 21

Fifth Amendment Right to Counsel

Answer 21

When the accused unambiguously indicates that he wishes to speak to counsel, the police are required to cease all questioning until the suspect has consulted a lawyer, and the lawyer must be present while any further questioning occurs.

Question 22

Right Against Self Incrimination

Answer 22

This right protects a criminal defendant from compulsion to give testimony or communicative evidence that could expose him to criminal liability.

Question 23

Fifth Amendment Double Jeopardy

Answer 23

This protects an individual from being tried for the same offense twice after jeopardy attaches. Jeopardy attaches when the jury has been empaneled and sworn in for a jury trial, or when the first witness has been sworn in for a bench trial (doesn’t apply to preliminary hearings or grand juries).

Question 24

Fifth Amendment Due Process

Answer 24

which is applicable to the states through the Fourteenth Amendment, requires that:

1. Confessions be made voluntarily (based on the totality of the circumstances), and
2. Identifications are not unnecessarily suggestive and so conducive to mistaken identification that it is unfair to the defendant. (See section V below.)

Question 25

Sixth Amendment - Right to Effective Counsel

Answer 25

A suspect against whom formal criminal proceedings have been commenced has a right to effective counsel at any post-charge line-up or show-up, including sentencing. This right does not apply to photo identifications, or when police take physical evidence from a suspect such as handwriting samples or fingerprints. This right is offense specific *defendant must invoke his right to counsel for act offense charged).

Question 26

Standard of Effective Counsel

Answer 26

To establish ineffective assistance of counsel, the defendant must prove that counsel’s performance was deficient in that counsel did not act as a reasonably competent attorney would have acted, and that this deficiency was prejudicial such that, but for the deficiency, the result would have been different.

Question 27

Attorney Substitution

Answer 27

A court will allow the defendant to substitute his attorney if the interests of justice so require, taking into account any conflicts, the interests of the defendant and the court, and the timeliness of the request.

Question 28

Self-Representation

Answer 28

The defendant is permitted to knowingly and intelligently waive his right to counsel and represent himself.

Question 29

Right to Confront Adverse Witnesses

Answer 29

The Sixth Amendment allows a defendant in a criminal prosecution the right to confront adverse witnesses.

1. Compel testimony: The right to confront includes issuing subpoenas to compel testimony of an adverse or hostile witness, as well as to cross-examine hostile witnesses.
2. Testimonial statements: The prosecution may not admit testimonial statements by a third person against the defendant unless the declarant is available for cross-examination either at the time the statement was made or during trial.
   a. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency, such as a 911 call.
   b. Statements are testimonial when the circumstances indicate that there is no on-going emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.
3. Joint co-defendants can raise “right to confront” issues.
   a. Confession of one co-defendant: Where two defendants are jointly tried and one of them confesses, the right to confront adverse witnesses prohibits use of that statement against the other defendant unless the statement can be redacted or the co-defendant who made the statement takes the stand and subjects himself to cross-examination.
   b. Severance of joint trial: Where co-defendants are charged for the same crime, courts prefer joint trials for judicial economy, but will sever the co-defendants if a joint trial would result in substantial prejudice to one of the defendants.

Question 30

Right to a Jury Trial

Answer 30

Criminal defendants have the right to a jury trial for serious offenses that have a potential imprisonment of greater than six months.

1. Waiver permitted: The defendant may voluntarily, knowingly, and intelligently waive his right to a jury trial.
2. Number of jurors required: Juries must consist of at least 6 persons and can consist of 12 persons.
   a. Six-person jury: In a six-person jury, a unanimous verdict is required.
   b. Federal criminal trial: A unanimous verdict is required.
   c. Twelve-person jury: In a 12-person state jury, only a substantial majority is required for a conviction. (Modernly, many jurisdictions require unanimous verdicts or the result is considered a hung jury).
3. Impartial jurors: A jury must be impartial, consisting of a fair cross-section of a community.
   a. A jury does not consist of a fair cross-section of a community if the defendant can prove that:
4. The group alleged to be excluded is a distinctive group in the community,
5. The representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community, and
6. This underrepresentation is due to systematic exclusion of the group in the jury-selection process.

Question 31

Voir Dire

Answer 31

During voir dire each side (not party) has unlimited strikes for cause (bias, prejudice, related to a party, etc.) and limited peremptory strikes (the number varies by jurisdiction—CA allows 20 if death/life sentence or 10 otherwise in criminal trial) that may be used for any reason, so long as the reason is gender and race neutral (some courts have expanded this to include sexual orientation neutral).

Question 32

Discrimination not permitted

Answer 32

The equal protection clause of the Fourteenth Amendment prevents the state or any state actor, including the court, from intentionally discriminating against a distinctive group in selection of the jury pool.

Question 33

The right to a speedy trial

Answer 33

The Sixth Amendment right to a speedy trial is viewed on a case-by-case basis with the court balancing the following factors:

1. The length of the delay,
2. The reason for the delay,
3. The prejudice to the defendant as a result of the delay, and
4. The time and manner in which the defendant asserted his right.

Question 34

Right to a preliminary hearing

Answer 34

A defendant who pleads not guilty has a right to a preliminary hearing if probable cause has not been established unless he waives such right. (The rules for preliminary hearings vary among jurisdictions.)

Question 35

Exclusionary Rule

Answer 35

a judge-made rule that prohibits the prosecution from introducing evidence obtained in violation of a defendant’s Fourth, Fifth, or Sixth Amendment rights.

Question 36

Exclusionary Rule Requirements

Answer 36

1. Standing - evidence obtained must have been in violation of the defendant’s own constitutional rights and not any third person’s

Question 37

Fruit of the Poisonous Tree

Answer 37

Evidence wrongfully obtained is inadmissible as the “fruit of the poisonous tree” — in other words, evidence that is found as a result of the original wrongfully obtained evidence is inadmissible — subject to the following exceptions: independent source, inevitable discovery, purged taint.

Question 38

Independent Source

Answer 38

The evidence obtained could have been obtained from an independent source separate from the illegal source e

Question 39

Inevitable Discovery

Answer 39

The evidence obtained would inevitably have been discovered by other police techniques, had it not first been obtained through illegal discovery; or

Question 40

Purged Taint

Answer 40

There are a sufficient number of additional factors that intervened between the original illegally and the final discovery that the link is too tenuous, such that the intervening factors have purged the taint of the illegal discovery

Question 41

Impeachment and The Exclusionary Rule

Answer 41

Illegally obtained evidence may sill be used to impeach the defendant but not any witnesses

Question 42

Exclusionary Rule Does not apply to

Answer 42

1. Civil proceedings
2. Grand Juries
3. Parole Proceedings

Question 43

Good Faith Warrant Exception

Answer 43

Where an officer acts in reasonable reliance on a facially valid search warrant issued by a proper magistrate and the warrant is ultimately found to be unsupported by probable cause, the exclusionary rule will not apply and the evidence will not be barred.

1. Exceptions: The good faith warrant exception does not apply (and thus the evidence will be excluded under the exclusionary rule) where:
   a. The affiant knew the information he was providing in the affidavit was false, or he would have known except for his reckless disregard of the truth, or
   b. There was a lack of probable cause such that the magistrate’s reliance on the affidavit was unreasonable, or c.The warrant was defective on its face.

Question 44

Due Process - Confessions must be voluntary

Answer 44

Under the Fourteenth Amendment, confessions must be made voluntarily without police coercion, in light of the totality of the circumstances, with the court considering the susceptibility of the suspect and the environment and methods used.

1. Nongovernmental coercion: A confession obtained by nongovernmental coercion is admissible

Question 45

Confession by a person who is mentally ill

Answer 45

A confession made by a person suffering from mental illness is admissible

Question 46

Police Coercion and Confessions

Answer 46

Where a confession is the result of police coercion, the prosecution cannot use it during its case-in-chief or to impeach the defendant. This rule is in contrast to a confession obtained in violation of Miranda, which is still admissible for impeachment purposes.

Question 47

Due Process in Identification

Answer 47

A defendant’s due process rights are violated if an identification of the defendant based on the totality of the circumstances is unnecessarily suggestive and so conducive to mistaken identification that it is unfair to the defendant.

Question 48

Plea Bargains

Answer 48

A defendant can settle by plea bargain to receive a less serious charge or a lighter sentence if he is competent, understands the charge, and understands the consequences of the plea.

1. Voluntary and intelligently: Plea bargains must be made voluntarily and intelligently; in open court and on record.
2. The prosecutor has no obligation to agree to a plea and the judge can refuse to accept the guilty plea if he thinks the defendant didn’t commit the crime.

Question 49

When a defendant confesses talk about

Answer 49

1. Voluntariness
2. Due Process
3. Miranda
4. Waiver of Miranda
5. Fifth Amendment right to counsel

Question 50

Eighth Amendment

Answer 50

A.Bail: The Eighth Amendment requires that bail shall not be excessive or unduly high based on several factors, including the following:

1. The seriousness of the offense,
2. The weight of the evidence against the defendant,
3. The defendant’s financial abilities, and
4. The defendant’s character.

Question 51

Cruel and Unusual Punishment

Answer 51

The Eighth Amendment prohibits cruel and unusual punishment by preventing the penalty imposed on the defendant from being grossly disproportionate to the seriousness of the crime.

1. A defendant cannot be sentenced to death if:
   a. At least one juror finds the defendant is mentally retarded, or b. the defendant was a minor at the time of the crime.
2. A minor cannot be sentenced to a mandatory life without parole sentence.
3. Victim impact statements during the penalty phase do not violate a defendant’s Eighth Amendment right against cruel and unusual punishment.
4. Mitigating circumstances: When considering the death penalty, the jury must consider mitigating circumstances, such as the defendant’s age, capacity, previous criminal liability, duress, other defendants’ involvement, and any other factors that mitigate against imposition of a death sentence.

Question 52

Open Fields/Fly Overs

Answer 52

a. Open fields/fly overs: Areas outside the home that are held out to the public do not have a reasonable expectation of privacy (e.g., some distant barns,
yards visible by plane, discarded trash). Courts will consider:

1. The proximity of the area to the house,
2. Whether the area is enclosed by a structure, such as a fence or wall,
3. The nature of the use of the structure or area in question, and
4. The steps taken by the individual to protect privacy in the area.

Question 53

Sensory Enhancing Technology

Answer 53

b. Sensory enhancing technology will violate a reasonable expectation of privacy (e.g., heat/thermal imagers not allowed), but technology available to the public may be permitted (e.g., binoculars, telescopes). Electronic eavesdropping is not acceptable (fine to listen through walls though).

Question 54

Dog Sniffing

Answer 54

c. Dog sniffing: Dogs are permitted to sniff luggage at airports and cars during a legitimate traffic stop but cannot extend the stop beyond the time reasonably required to complete the stop’s mission unless there is reasonable suspicion of a violation other than a traffic infraction. Police cannot use dogs to sniff homes without a warrant or warrant exception (the dog cannot be the probable cause).