Criminal Procedure

Question 1

Fourth Amendment

Answer 1

Free from unreasonable searches & seizures

Question 2

Standing (4th Amendment)

Answer 2

a person has standing to raise a Fourth Amendment challenge if the person has a reasonable expectation of privacy in the thing searched or seized

Question 3

Seizure

Answer 3

under totality of circumstances, reasonable person would feel he was not free to decline officer’s requests or terminate encounter

Question 4

Arrest

Answer 4

police take person into custody against her will for purposes of criminal prosecution or interrogation; must be passed on probable cause – trustworthy facts or knowledge sufficient for reasonable person to believe suspect has committed or is committing crime [warrant generally not required for arrest in public place; generally must have warrant for arrest in home]

Question 5

Stop and Frisk

Answer 5

if police have reasonable suspicion of criminal activity or involvement in a complete crime, supported by articulable facts, they may detain person for investigative purposes; if police also have reasonable suspicion that detainee is armed and dangerous, may frisk for weapons

Question 6

Automobile Stops

Answer 6

may not stop car unless have at least reasonable suspicion to believe law has been violated – if special law enforcement needs are involved, police can set up roadblocks to stop cars without individualized suspicion that driver violated some law [roadblock must (1) stop cars on basis of neutral, articulable standards; (2) be designed to serve purposes closely related to particular problem pertaining to automobiles and their mobility]

Question 7

Evidentiary Searches and Seizures

Answer 7

D must have 4th Am right – seizure by gov concerning a place or thing in which D had a reasonable expectation of privacy; gov typically must have a valid warrant – issued by neutral and detached magistrate on showing of probable cause and reasonably precise as to place to be searched and items to be seized

Question 8

Reasonable Expectation of Privacy

Answer 8

has any time (1) owned or had right to possession of place searched; (2) place searched was his home, whether or not he owned or had right to possession of it; or (3) was an overnight guest of owner
of place searched | no REOP in things held out to public

Question 9

Informers

Answer 9

affidavit based on informer’s tip must meet totality of circumstances test – may be sufficient even though reliability and credibility of informer or his basis for knowledge are not established; search warrant issued on affidavit will be invalid if D establishes (1) false statement was included in it by affiant; (2) affiant intentionally or recklessly included false statement; (3) false statement was material to finding of probable cause

Question 10

Execution of Warrant

Answer 10

only police may execute; must known, and announce purpose and wait reasonable time for admittance but violation of rule will not result in suppression of evidence otherwise properly obtained; scope limited to what is reasonably necessary to discover items described in warrant; authorizes police to detain occupants of premises during search, but cannot search persons who are not named in warrant

Question 11

Search Incident to Lawful Arrest

Answer 11

incident to constitutional arrest police may search person and areas into which he can reach to obtain or destroy evidence; with automobiles, police may search passenger compartment of car incident to arrest only if at time of search (1) arrestee is unsecured and still may gain access to interior of car or (2) police reasonably believe evidence of offense for which person was arrested may be found in car

Question 12

Automobile Exception

Answer 12

if police have probable cause to believe vehicle contains fruits, instrumentalities, or evidence of crime, may search whole vehicle and any container that might reasonably contain item for which they had probable cause to search [includes trunk]

Question 13

Plain View

Answer 13

(1) are legitimately on premises; (2) discover evidence, fruits or instrumentalities of crime or contraband; (3) see such evidence in plain view; (4) have probable cause to believe (immediately apparent) that item is evidence

Question 14

Consent To Search

Answer 14

voluntary consent; any person with apparent equal right to use or occupy property may consent to a search, and any evidence found may be used against other owners or occupants; occupant cannot give valid consent to search when co-occupant is present and objects to search

Question 15

Stop and Frisk

Answer 15

reasonable articulable suspicion of criminal activity; may conduct protective frisk if believes presently armed and dangerous – limited to pat down of outer clothing, officer may reach into suspect’s clothing and seize item officer reasonably believes based on plain feel is weapon or contraband

Question 16

Hot Pursuit/Exigency

Answer 16

in pursuit of fleeing felon may make warrantless search and seizure/evidence likely to disappear before obtaining warrant

Question 17

Administrative Inspections and Searches

Answer 17

must have warrant for searches of private residences and commercial buildings – showing of general and neutral enforcement plan will justify issuance

Question 18

Wiretapping/Eavesdropping

Answer 18

Constitutes search; valid warrant permitting wiretap is OK in certain circumstances when particular requirements are met; speaker assumes risk that person to whom he is talking is an informer wired for sound; pen registers not controlled by 4th Am

Question 19

Due Process

Answer 19

Evidence obtained in manner offending a sense of justice is inadmissible under Due Process; reasonableness of searches person’s body is determined by balancing society’s need against magnitude of intrusion

Question 20

14th Amendment Confession

Answer 20

voluntariness – must be voluntary as determined by totality of circumstances; only involuntary if official compulsion [harmless error test applies – conviction need not be overturned with other evidence of guilt]

Question 21

6th Amendment Right to Counsel

Answer 21

guarantees right to assistance of counsel in all criminal proceedings, which include all critical stages of prosecution after judicial proceedings have begun [former charges filed]; prohibits police from deliberately eliciting an incriminating statement from D outside presence of counsel after D has been charged unless he waived right to counsel [at nontribal proceedings harmless error rule applies; if entitled to lawyer at trial failure to provide counsel results in automatic reversal] **used for impeachment

Question 22

5th Amendment Privilege

Answer 22

person in custody must, prior to interrogation, be informed that (1) he has a right to remain silent; (2) anything he says can be used against him in court; (3) he has a right to an attorney; and (4) if he cannot afford an attorney, one will be appointed for him if he so desires

Question 23

Custody

Answer 23

whether reasonable person under circumstances would feel he was free to leave; whether relevant environment presents coercive pressures

Question 24

Interrogation

Answer 24

any words or conduct by police that they should know would likely elicit a response from detainee

Question 25

Effect

Answer 25

if does nothing, cannot presume waiver but may continue to question; gov must show by preponderance of evidence that waiver was knowing and voluntary; if indicates wishes to remain silent, police must honor request – must be explicit, unambiguous, and unequivocal – allows questioning on unrelated crime; if unambiguously indicates wants counsel, all questioning must cease until counsel has been provided unless detainee (1) then waives right to counsel or (2) is released from custodial interrogation and 14 days have passed

Question 26

Waiver

Answer 26

must make a knowing, intelligent, and voluntary waiver

Question 27

Violation

Answer 27

evidence obtained is inadmissible under exclusionary rule; may be used to impeach D’s trial testimony but not evidence of guilt; interrogation without Miranda where it was reasonably prompted by a concern for public safety

Question 28

6th Amendment Pre-Trial Identification

Answer 28

suspect has right to presence of attorney at any post-charge lineup or showup; does not have right at photo IDs or when police take physical evidence

Question 29

Due Process Pre-Trial ID

Answer 29

ID is unnecessarily suggestive and substantial likelihood of misidentification

Question 30

Remedy Pre-Trial ID

Answer 30

exclusion of in-court ID [independent source: opportunity to observe at time of crime; admissibility of ID should be determined at suspension hearing in absence of jury, but jury exclusion is not constitutionally required

Question 31

Exclusionary Rule

Answer 31

Prohibits introduction of evidence obtained in violation of D’s 4th, 5th, and 6th Am rights; all fruits of poisonous tree must also be excluded unless costs of excluding evidence outweigh deterrent effect exclusion would have on police misconduct

Question 32

Exclusionary Rule Exceptions

Answer 32

(1) fruits derived from statements obtained in violation of Miranda; (2) obtained from source independent of original illegality; (3) intervening act of free will by D; (4) inevitable discovery; (5) violations of knock and announce rule

Question 33

Exclusionary Rule Limitations

Answer 33

inapplicable to grand juries, violations of state law, internal agency rules, and parole revocation proceedings; does not apply when police arrest someone erroneously but in good faith thinking that they are acting pursuant to valid arrest warrant, search warrant or law; an otherwise voluntary confession taken in violation of Miranda is admissible for impeachment and evidence obtained from an illegal search may be used by prosecution to impeach D’s but not others’ statements; not available for knock and announce

Question 34

Harmless Error Test

Answer 34

resulting conviction should be overturned on appeal unless gov can show beyond reasonable doubt that error was harmless

Question 35

Preliminary Hearing

Answer 35

if probable cause has been determined, no preliminary hearing needed; if it has not been and there are significant constraints on an arrestee’s liberty, hearing to determine probable cause must be held within reasonable time

Question 36

Pre-Trial Detention - Bail

Answer 36

right to be released on bail unless charge is capital; no higher than necessary to assure D’s appearance at trial

Question 37

Grand Juries

Answer 37

D has no right to notice grand jury is considering indictment against him, to be present and confront witnesses, or to introduce evidence; witness doesn’t have right to receive Miranda warnings or warning that he is potential D; based on evidence that would be inadmissible at trial; no right to challenge subpoena on 4th Am grounds; conviction resulting from indictment issued by grand jury from which members of minority group have been excluded will be reversed without regard to harmless of error

Question 38

Speedy Trial

Answer 38

totality of circumstances [length of delay, whether D asserted his right, prejudice to D]; remedy = dismissal with prejudice; right does not attach until D has been arrested or charged

Question 39

Duty to Disclose

Answer 39

gov has duty to disclose material, exculpatory evidence to D; failure to disclose violates Due Process and grounds for reversing conviction if D can prove that – (1) evidence is favorable to him because it either impeaches or is exculpatory and (2) prejudice has resulted; if D using alibi or insanity defense, must notify prosecution [list of witnesses]

Question 40

Competency to Stand Trial

Answer 40

based on mental condition of D at time of trial; incompetent to stand trial if either (1) lacks rational as well as factual understanding of charges and proceedings, or (2) lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding [D may show incompetency by preponderance of evidence – not clear and convincing]

Question 41

Right to public trial

Answer 41

6th and 14th Am guarantee right to public trial but right varies with stage of proceeding involved – PRETRIAL [preliminary probable cause hearings open to public and press, as are pretrial suppression hearings]; TRIAL [press and public have 1st Am right to attend trial itself, even when defense and prosecution agree to close it]

Question 42

Judicial Bias

Answer 42

Due process violated if judge is shown to have actual malice against D or to have had a financial interest in having trial result in guilty verdict

Question 43

Due Process Violations

Answer 43

Due process violated if (1) trial conducted in manner making it unlikely that jury gave evidence reasonable consideration; (2) state compels D to stand trial in prison clothing; (3) state compels D to stand trial or appear at penalty phase proceedings visibly shackled, unless justified; (4) jury exposed to influence favorable to prosecution

Question 44

Right to Trial By Jury

Answer 44

only right for serious offenses [if imprisonment is for more than 6 months]; no jury right for civil contempt proceedings but for criminal contempt, cumulative penalties totaling more than 6 months cannot be imposed without affording D right – if judge imposes punishment for contempt during trial, penalties may aggregate for more than 6 months without jury trial

• No constitutional right to jury of 12, but must be at least 6 jurors; 6 person juries must be unanimous
• D has right to have jury selected from cross-section of community; equal protection-based attack on peremptory strikes – (1) D must show facts or circumstances that raise an inference that exclusion was based on race or gender; (2) P must come forward with race-neutral explanation for strike; (3) judge determines whether prosecutor’s explanation was genuine reason – if sincere it will be upheld

Question 45

Impartial Jury

Answer 45

D entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in case or accused of interracial capital crime; if trial court refuses to exclude for cause a juror whom court should exclude, D using peremptory challenge is not unconstitutional

Question 46

Inconsistent Verdicts

Answer 46

not reviewable

Question 47

Sentence Enhancement

Answer 47

if substantive law provides sentence may be increased beyond statutory max for crime if additional facts are proved, proof of facts must be submitted to jury and proved beyond reasonable doubt; judges have power to decide whether sentences for multiple crimes run consecutively

Question 48

Right to Counsel

Answer 48

violation of right at trial requires reversal; for nontribal denials, harmless error test is applied

Question 49

Waiver

Answer 49

D has right to defend himself at trial if his waiver is knowing and intelligent and he is competent to proceed pro se

Question 50

Effective Assistance

Answer 50

includes right to effective counsel; extends to first appeal – generally presumed – ineffective assistance claimant must show (1) deficient performance by counsel; (2) but for deficiency, result of proceeding would have been different *must point out specific deficiencies
*Atty failure to provide D with plea offer can constitute bad performance if D can show that (1) had the plea agreement been communicated, he likely would have accepted; (2) plea likely would have been entered without prosecutor’s cancelling it

Question 51

Right to Confront Witnesses

Answer 51

not absolute; if 2 persons are tried together and one has given confession that implicates the other, right of confrontation prohibits use of that statement, but such statement may be admitted if (1) all portions referring to other D eliminated; (2) confessing D takes stand and subjects himself to cross with respect to truth or falsity of statement; (3) confession of non-testifying co-D is being used to debut D’s claim that his confession was obtained coercively

Question 52

Confrontation Clause

Answer 52

prior testimonial evidence may not be admitted unless (1) declarant is unavailable and (2) D had opportunity to cross-examine declarant at time statement was made [testimonial = preliminary hearing, grand jury hearing, former trial, police interrogation to establish or prove past acts]; if lab tests used to prove truth of matter they are testimonial; D can be held to forfeit clause by wrongdoing – court will not find so unless wrongdoing was intended to keep witness from testifying

Question 53

Burdens

Answer 53

state must prove guilt beyond reasonable doubt

Question 54

Judge must determine plea is voluntary and intelligent –

Answer 54

address D personally in open court on record – must understand: (1) nature of charge to which plea is offered and crucial elements of crime charged; (2) max possible penalty and any mandatory minimum; (3) right to not plead guilty and if he does, he waives right to trial violation means withdrawal of plea

Question 55

Collateral Attacks (Plea)

Answer 55

plea can be set aside for (1) involuntariness, (2) lack of jurisdiction, (3) ineffective assistance of counsel, or (4) failure to keep plea bargain

Question 56

D has right to counsel during sentencing

Answer 56

D has no right to confrontation or cross-examination; D in death penalty case must have more opportunity for confrontation

Question 57

Resentencing

Answer 57

if greater punishment imposed on D who has been reconvicted after successful appeal than was imposed at first trial, judge must set forth in record reasons for harsher sentence [ex: de novo trial or in jury sentencing]

Question 58

8th Amendment

Answer 58

prohibits cruel and unusual punishment – penalty grossly disproportionate to seriousness of offense committed is cruel and unusual

Question 59

Appeals

Answer 59

No federal constitutional right to appeal; indigents must be given counsel at state expense during first appeal granted to all as a matter of right and for appeals of guilty pleas and pleas of nolo contendere

Question 60

Right to counsel at parole and probation revocation:

Answer 60

if after probation revocation an already imposed sentence of imprisonment springs into application or if case involves parole revocation, right to counsel is available only if representation is necessary to a fair hearing; if involves imposition of new sentence, D is entitled to representation as if counsel at trial

Question 61

Double Jeopardy Attachment

Answer 61

Jeopardy attaches in jury trial at empaneling and swearing in of jury; in bench trial attaches when first witness is sworn

Question 62

Double Jeopardy Exceptions permitting retrial

Answer 62

(1) first trial ends in hung jury; (2) manifest necessity to abort original trial or when termination occurs at behest of D not constituting acquittal on merits; (3) D who successfully appealed conviction unless
ground for reversal was insufficient evidence to support guilty verdict; on retrial D may not be tried for a greater offense than for which he was convicted; (4) after D breaches plea bargain

Question 63

Double Jeopardy Same Offense

Answer 63

two crimes are same unless each crime requires proof of an additional element that other does not require; attachment of jeopardy for greater offense bars retrial for lesser included offense and vice versa [ex: unlawful conduct that is subsequently used to prove greater offense (1) has not occurred at time of prosecution for the lesser offense or (2) has not been discovered despite due diligence