Criminal Procedure

Question 1

Constitutional amendments and associated crim pro rights

Answer 1

4th Amendment - prohibition against unreasonable search and seizure; 5th Amendment - Miranda/compulsory self incrimination and double jeopardy; 6th Amendment - right to speedy trial, trial by jury, confront witnesses, assistance of counsel; 8th Amendment - death penalty and prisoner rights

Question 2

Exclusionary rule and limitations

Answer 2

Procedure whereby someone who has been the victim of an illegal search or a coerced confession can have the product of that illegal seach/coerced statement excluded from any subsequent criminal prosection. EXCEPTION: grand jury proceedings, civil proceedings, parol revocation proceedings and does NOT apply to use of excluded evidence for impeachment (although can only be used to impeach defendant not other witnesses). Also, violations of knock and announce rule don’t get this protection

Question 3

Fruit of the poisonous tree doctrine

Answer 3

excludes illegally seized evidence but also excludes all evidence obtained or derived from police illegality. DOES NOT apply to Miranda violations unless in bad faith

Question 4

Three ways to break the chain between original, unlawful police action and a supposedly derived piece of evidence

Answer 4

3 IN’s (as in they are “in”) - 1) show independent source; 2) inevitable discovery; 3) intervening acts of free will on the part of the defendant

Question 5

Test for overturning a conviction on appeal for admitting improperly obtained evidence

Answer 5

Harmless error (i.e., conviction will be upheld if the conviction would have resulted despite the improper evidence)

Question 6

Standard for which to base an arrest

Answer 6

probable cause

Question 7

Are warrants required to arrest someone in a public place?

Answer 7

Generally, no

Question 8

Are warrants required to arrest someone in his home?

Answer 8

Yes, if it’s a non-emergency situation

Question 9

Station house detention doctrine

Answer 9

police need probable cause to arrest you and compel you to come into the police station for either fingerprinting or interrogation (note: don’t need this if they merely ask)

Question 10

Investigatory detentions/Terry stops defined

Answer 10

Police have authority to briefly detain a person even if they lack probable cause of arrest. In order to make such a stop they must have 1) reasonable suspicion supported by 2) articulable fact of criminal activity. Measured by totality of circumstances

Question 11

Automobile stops (special Terry stop)

Answer 11

Cops may stop a car if they have at least a reasonable suspicion that the law has been violated. Doesn’t matter if they have ulterior motive. Exception: check point roadblocks - must be neutrally applied (e.g., DUI checks, border crossing)

Question 12

Steps to evaluate search and seizure problem

Answer 12

1) government conduct? 2) reasonable expectation of privacy? (e.g., standing) 3) did police have a valid search warrant? 4) if warrant not valid, does an officer’s good faith defense save the defective search warrant? 5) If warrant invalid and can’t be save by good faith, or if no warrant at all, does the situation fall under the exceptions to the warrant requirement?

Question 13

What constitutes government conduct?

Answer 13

1) publicly paid police - on or off duty; 2) private individual acting at direction of public police; 3) privately paid police actions do NOT constitute gov’t conduct UNLESS deputized with power to arrest you

Question 14

Automatic categories of standing (reasonable expectation of privacy)

Answer 14

1) you own the premises searched; 2) you live on premises searched, whether you have ownership interest or not; 3) you are an overnight guest on the property

Question 15

“Sometimes” category of standing

Answer 15

1) you own the (non-real) property seized (only have standing if you have reasonable expectation of privacy in the item or area searched)

Question 16

No standing categories

Answer 16

1) sound of your voice; 2) style of your handwriting; 3) paint on the outside of the car; 4) account records held by a bank; 5) monitoring the location of your car on public street or in your driveway; 6) anything seen across the open fields (even if fenced in); 7) anything that can be seen from flying over in the public airspace; 8) the odors emanating from your luggage or car; 9) your garbage set out on the curb for collection

Question 17

Two core requirements for facially valid search warrant

Answer 17

1) probable cause (a fair probability that contraband or evidence of a crime will be found in the area searched) and 2) particularity (warrant must state with particularity the place to be searched and the property to be seized)

Question 18

Ability of an officer to base his affidavit/probable cause for warrant on informant

Answer 18

Sufficiency determined by totality of circumstances; an informant’s credibility and basis of knowledge relevant factors; valid warrant can only be based in part on tip from informant; informant can be anonymous

Question 19

When is no knock entry in execution of a search warrant permitted?

Answer 19

if knocking an announcing would be dangerous, futile, or inhibit the investigation (e.g., destruction of evidence)

Question 20

General rule of officer’s good faith defense to a defective warrant

Answer 20

officer’s good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements

Question 21

Exceptions to good faith reliance on a defective search warrant

Answer 21

1) affidavit underlying that warrant is so lacking probable cause that no reasonable police officer would have relied on it; 2) affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it; 3) police officer lied or mislead the magistrate when seeking the warrant; 4) magistrate was biased and therefore has wholly abandoned his neutrality

Question 22

Exceptions to the warrant requirement

Answer 22

1) search incident to arrest; 2) automobile exception; 3) plain view; 4) consent; 5) stop and frisk; 6) evanescent evidence; 7) hot pursuit; 8) public school searches

Question 23

Requirements for search incident to arrest warrant exception

Answer 23

1) arrest itself must be lawful; 2) arrest and search must be contemporaneous in time and place; 3) only the person and the areas within the person’s wingspan may be search; 4) in a search incident to arrest (and automobiles) police may search the interior of the the auto incident to arrest ONLY IF: arrestee unsecured OR police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle; 5) for community caretaker (or emergency aid) exception, officer can conduct a warrantless search if an officer faces faces an emergency that threatens the health or safety of an individual or the public

Question 24

Requirements for automobile exception

Answer 24

In order for police to search anything or anybody (to fall under auto exception), the police must have probable cause. If and only if before searching anything or anybody the police have probable cause then they can search the entire car (including trunk and interior compartment). Further, with probable cause, the police may open any package, luggage or other container that could reasonably contain the item they had probable cause to look for, no matter who owns the container. Probable cause necessary to justify the warrantless search can arise after the car is stopped but must arise before anything or anybody is searched

Question 25

Requirements for plain view exception

Answer 25

police officer must be legitimately present at the location where he or she does the viewing of the item seized and it must be immediately apparent that the item is contraband or a fruit of a crime

Question 26

Requirements for consent exception (warrantless search)

Answer 26

consent must be voluntary and intelligent; police saying they have a warrant negates any such consent; if two people have equal right to use property and both present when cops ask to search, and one consents, one denies, denying party controls

Question 27

Stop and frisk (Terry) exception

Answer 27

Terry stop allows for brief detention for purpose of investigating suspicious conduct; need reasonable suspicion (s a reasonable belief that the man might be armed and dangerous, can only reach inside outer clothing if officer reasonably believes by plain feel that something is a weapon or contraband

Question 28

Auto stops and Terry frisks and searches

Answer 28

if a vehicle is properly stopped for a traffic violation and cop reasonably believes that the driver/passenger may be armed and dangerous the officer may 1) conduct a frisk of suspected person and 2) search the vehicle so long as limited to the areas in which a weapon may be placed

Question 29

Evanescent evidence exception

Answer 29

evidence that might disappear quickly if the police took the time to get a warrant - don’t need warrant

Question 30

Hot pursuit of a fleeing felon exception

Answer 30

If police are truly in hot pursuit of a fleeing felon, they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible. However, if the police are not within 15 minutes behind a fleeing felon, then not valid hot pursuit exception

Question 31

Inventory searches exception

Answer 31

Before incarceration of arrestee, the police may search the arrestee’s personal belongings and/or their entire vehicle, including closed containers in vehicle

Question 32

Public school searches exception

Answer 32

1) public school children engaged in extracurricular activities can be randomly drug tested; 2) warrantless searches of public school children’s effects (e.g., purses/backpacks) permissible to investigate violations of school rules; 3) school searches held reasonable only if it offers a moderate change of finding evidence of wrongdoing, measures are adopted to carry out the search are reasonably related to the objectives to the search, and the search is not excessively intrusive

Question 33

Warrant requirement for wiretapping/eavesdropping

Answer 33

needs a warrant; exceptions: unreliable ear (take risk person is wired when you talk to them), uninvited ear (when no attempt to make conversation private)

Question 34

Trigger for Miranda warnings

Answer 34

custodial interrogation

Question 35

When is a suspect in custody for the purposes of Miranda?

Answer 35

If, at time of interrogation, you are not free to leave. Objective standard. Exceptions: probation interviews and traffic stops

Question 36

Interrogation for purposes of Miranda

Answer 36

Any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect (doesn’t matter if response is incriminating, only matters is police conduct); this does NOT cover spontaneous statements

Question 37

Requirements for waiver of Miranda rights

Answer 37

must be knowing, voluntary, and intelligent (courts look at totality of the circumstances)

Question 38

Invoking the right to remain silent

Answer 38

1) must be unambiguous; 2) police may reinstate questioning after invoked if they wait a significant amount of time, defendant re-Mirandized, and the questions are limited to a crime not subject to earlier questioning

Question 39

Invoking the right to counsel

Answer 39

1) request must be unambiguous; 2) if right invoked then all questions must cease until the accused is either: given an atty or the accused initiates further questioning; 3) if there is a break in custody, the police can come back and ask defendant to waive his Miranda rights after 14 days

Question 40

5th Amendment right to counsel v. 6th Amendment right to counsel

Answer 40

5th - arises when a suspect invokes Miranda rights and requests an atty, NOT offense specific and thus applies to entire process of custodial police interrogation; 6th - offense specific, counsel only need to be present when Defendant asked questions about the specific case for which counsel retained (note: when a defendant not specifically asked for counsel but appointed one, can waive right to counsel and talk to police about crime for which he was charged)

Question 41

Substantive bases for attacking a pre-trial identification

Answer 41

1) denial of right to counsel during post-charge line-ups and show-ups (but not when police go out to show victim/witness photos, taking of blood samples, handwriting samples, pre-charge line-ups, brief recesses during defendant’s testimony at trial, parole and probation revocation proceedings, taking of fingerprints); 2) denial of due process (where certain pretrial ID techniques so unnecessarily subjective and substantially likely to produce a misidentification they deny due process)

Question 42

Remedy for unconstitutional pretrial identification

Answer 42

Preclude the in-court identification unless the state can show it had and adequate independent source for the in-court identification (most commonly is that the victim or witness had an adequate opportunity to observe the defendant at the time of the crime)

Question 43

Prosecutorial duty to disclose exculpatory information

Answer 43

Prosecutor’s failure to disclose evidence, willful or inadvertent, violates Due Process and may be grounds for reversal of conviction

Question 44

Reversing a conviction on grounds of prosecution’s failure to disclose exculpatory evidence

Answer 44

conviction reversed if 1) evidence is favorable to defendant, and 2) there’s prejudice (reasonable probability the result would have been different had the information been disclosed)

Question 45

When is a judge biased?

Answer 45

1) has a financial interest in the outcome of the case; or 2) some actual malice against the defendant

Question 46

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

Answer 46

When defendant tried for an offense for which the maximum authorized sentence EXCEEDS 6 months

Question 47

Minimum number of jurors

Answer 47

6

Question 48

Unanimity of verdict

Answer 48

necessary if only bare minimum, but no federally protected constitutional right to unanimous twelve juror verdict (upheld 10-2, and 9-3)

Question 49

Fair cross section

Answer 49

defendant has right to have jury pool to reflect fair cross section of community but not empaneled jury

Question 50

Preemptory challenges

Answer 50

Can use such challenge to exclude any prospective juror for any reason whatsoever but unconstitutional for anyone to use such a challenge to exclude a juror based on race or gender

Question 51

6th Amendment right to counsel

Answer 51

applies to all critical stages of the prosecution, including trial

Question 52

ineffective assistance of counsel coa

Answer 52

must be deficient performance by counsel, and, but for such deficiency, the result of the proceeding would have been different. Typically can only be made by specifying particular errors of trial counsel (vague allegation of inexperience not enough)