Criminal Procedure FINAL Flashcards
Mirandized
A term used by law enforcement officers to indicate that the suspect has been given the Miranda warnings
Miranda rule
Evidence obtained by the police during custodial interrogations cannot be used in court during trial unless the defendant was first informed of the right not to incriminate himself or herself and the right to a lawyer
Confession
A person says he or she committed th act
Admission
A person admits to something related to the act but may not have committed it.
Myth v. Reality: Police must give the Miranda warnings exactly as the Supreme Court specified
Myth
Myth v. Reality: Police do not have to give the Miranda warnings verbatim but must provide warnings which adequately convey the four components of the Miranda warnings
Reality
waiver
An intentional giving up of a known right or remedy
Intelligent waiver
One given by a suspect who knows what he or she is doing
Voluntary waiver
A waiver that is not the result of any threat, force or coercion
Myth vs. Reality: Police must obtain a signed waiver for a confession to be admissible after they give the Miranda warnings.
Myth
Myth vs. Reality
Police do not have to obtain a signed waiver; the waiver may be verbal. The better practice however, is to obtain a signed waiver
Custodial interrogation
An interrogation that takes place while a suspect is in custody
Custody
When the suspect is under arrest or deprived of freedom in a significant way
Deprived of freedom in a significant way
When a person’s freedom of movement is limited by the police and a reasonable person in the same circumstances would feel he or she was in custody
Interrogation
When the police ask questions that tend to incriminate or create the functional equivalent of an interrogation
Functional equivalent of an interrogation
Instances in which no questions are actually asked by the police but in which the circumstances are so conducive to making a statement or confession that the courts consider them to be the equivalent of interrogation
Edwards rule
Once a suspect invokes the right to remain silent, he or she cannot be questioned again for the same offense unless he or she initiates further communication, exchanges, or conversation with the police
Collateral derivative evidence
Evidence of a secondary nature that is related to the case but not directly a part of it.
General on-the-scene questioning
Questioning at the scene of the crime
Volunteered statement
one given by the suspect without interrogation
voluntary statement
a statement given without coercion and of the suspect’s own free will
Public safety exception
Responses to questions by the police without the Miranda warnings are admissible if the questions are reasonably prompted by concerns for public safety
Harmless error rule
A rule stating that an error made by the trial court in admitting illegally obtained evidence does not lead to a reversal of the conviction if the error is determined to be harmless. The prosecution has the burden of proving that the error is in fact harmless
Voir dire
A process whereby potential jurors are assembled in court and questioned by the judge or attorneys so either side can determine if they should be chosen for or disqualified from membership in a trial jury
Nonunanimous verdict
A verdict by a jury that is not the result of a unanimous vote
Hung jury
A jury that cannot come to a unanimous agreement to convict or acquit
Serious offense
for purpose of a jury trial, one for which more than six months imprisonment is authorized
Petty offense
For purpose of a jury trial, it is an offense whose maximum penalty is six months or less
Myth vs. Reality: A defendant has the right to a jury of peers, and that means the jury must include people similar in age or race or gender to the defendant
Myth
Myth vs. Reality: A defendant’s right to a jury of peers means only that the jury must come from the same community as where the crime occurred and be representative of the community generally, not the defendant specifically
Reality
Jury of peers
A jury that is not consciously restricted to a particular group
Peremptory challenges
A challenge to exclude a potential juror for which no reason is stated
Challenges for cause
A challenge to exclude a potential juror based on legal reasons
Retained counsel
An attorney chosen and paid by the accused
Court-appointed counsel
A defense lawyer appointed by the court for a defendant who is too poor to pay
Indigent defendants
A defendant who is too poor to hire a lawyer
Myth or Reality: A convicted offender can get a new trial simply by showing that their counsel made some mistakes during trial
Myth
Myth or Reality: It is very difficult to establish ineffective assistance of counsel as defined by the Supreme Court mistakes by defense counsel alone are rarely sufficient to warrant a new trial for a defendant
Reality
Procedural due process
The legal process that is to be followed, depending upon the type of proceeding involved
Substantive due process
There are aspects of a person’s life that cannot be regulated by the government because they are so basic and private to the individual
Brady rule
The prosecutor has a duty to disclose evidence favorable toa a defendant
Physical self-incrimination
Involves real or physical evidence
Testimonial or communicative self-incrimination
That which explicitly or implicitly relates a factual assertion or discloses information
Privilege of the accused
The privilege not to testify during trial.
Privilege of a witness
Any witness, other than an accused on the witness stand, has the privilege to refuse to disclose any information that may tend to incriminate him or her
Immunity
The person granted immunity will not be prosecuted in a criminal case
Transactional immunity
Full immunity, meaning the witness can no longer be prosecuted for any offense arising out of that act or transaction
Use and derivative use immunity
Partial immunity meaning the witness can still be prosecuted on the basis of evidence other than his or her testimony, if the prosecutor has such independent evidence
Sequestration
Keeping jurors together during the trial and strictly controlling contact with the outside world
Sentencing
The formal pronouncement of punishment following conviction in a criminal prosecution
Due process
Fundamental fairness
Positive school of criminology
Advocates that penalty should fit the offender instead of the offense
Sentencing disparity
different sentences given for similar crimes committed under similar circumstances
Mandatory sentences
Sentences that must be imposed by the judge of jury; no deviation is allowed
Presumptive sentences
A specified sentence is set by law, but may be increased or decreased depending on the presence of aggravating or mitigating circumstances
Sentencing guidelines
guidelines that provide structure for judges by specifying the sentencing range tha thsould be imposed for offenses
Blended sentencing
Sentences given to juveniles that combine juveniles and adult sentences
Bifurcated trial
The trial has two stages: the guilt or innocence stage and the punishment stage
Myth vs. Reality: The death penalty may be imposed for crimes other than first-degree murder.
Myth
Myth vs. Reality: The death penalty may only be imposed in cases where the defendant has been convicted of first-degree murder and the jury has found the existence of aggravating circumstances
Reality
Determinate sentencing
A sentence that specifies the period of incarceration based on guidelines
Indeterminate sentencing
A sentence that gives wide discretion to the sentencing authority
Concurrent sentence
Sentences served at the same time
Consecutive sentence
Sentences served on after the other
Old approach to prisoner’s rights
Prisoners had only a few rights because they are incarcerated
New approach to prisoner’s rights
Prisoners have the same rights as people in the free world, except those rights that can be denied them for justified reasons
parole
The prisoner is released before the end of his or her prison term, but subject to supervision by a parole officer
Myth vs. Reality: Inmates enjoy a wide variety of constitutional rights, similar to those enjoyed by people outside of prison
Myth
Myth vs. Reality: Inmates enjoy only limited constitutional rights; their conviction and incarceration limit most of their rights to a significant degree
Reality
Probation
A convicted offender is allowed to remain free in the community, subject to court-imposed conditions and under the supervision of a probation officer
Shock probation
An offender serves time in prison, after which he or she is discharged and placed on probation
Intensive probation
The probationer is supervised more closely than in regular probation
Special conditions
Conditions to meet the special needs of an offender
Intermediate sanctions
Sanctions that less severe and less costly than prisons, but more restrictive than traditional probation
Community service
Places an offender in unpaid position with nonprofit or tax-supported agencies to perform a specified service
Electronic monitoring
as offender is placed on an electronic monitor that constantly tracks his or her location
Boot camp
A military-style institution intended to provide discipline and education as well as punishments, usually for younger and first-time offenders
Fine
monetary punishment
monetary penalty
a sum of money exacted by an administrative agency for the doing of or failure to perform some act
forfeiture
taking away the property of an offender without compensation
restitution
a victim is restored to his or her original situation prior to the less or injury
Section 1983 case
A lawsuit filed under federal law that seeks damages from a police officer, supervision, and/or department
Acting under color of law
Officer using power possessed by virtue of law
Under color of law
When the officer uses power possessed by virtue of law and made possible only because the officer is clothed with the authority of the state
Myth vs. reality: Police officers are never liable for acts they engage in while off-duty
Myth
Myth vs. Reality: Police officers may believable anytime they are acting under color of law and this may include times hen the officer is off duty, if to officer used his or her position to advantage
Reality
Qualified immunity defense
An officer is not civilly liable unless he or she violated a clearly established statutory or constitutional right of which a reasonable person would have known
Clearly established constitutional right
a right so established that a reasonable police officer would have known his or her act was unlawful
Probable cause
A reasonable good faith belief in the legality of action taken
tort
A civil wrong in which the action of one person causes injury to the person or property of another, in violation of a legal duty imposed by law
intentional tort
Occurs when there is an intention on he part of the officer to bring some physical harm or mental coercion upon another person
False arrest
when the officer makes an illegal arrest
False imprisonment
when a person is placed in confinement without any valid reason
Assault
The attempt or threat to inflict bodily harm on another person
Battery
The intentional infliction of harmful or offensive bodily contact
Reasonable force
The force that a prudent and cautious person would use if exposed to similar circumstances
punitive force
force that is meant to punish rather than control
Deadly force
Force that, when used, would lead a reasonable officer objectively to conclude that it poses a high risk of death or serious injury
Wrongful death
When death occurs as a result of an officer’s unlawful action or inaction
Negligence tort
A tort that occurs when there is a breach of a common law or statutory duty to act reasonably toward those who may foreseeably be harmed by one’s conduct
Public duty doctrine
Government functions are owed to the general public but not to specific individuals, thus there is generally no liability for failing to protect a member of the public
Special relationship
If a duty is owed to a particular person rather than to the general public, then a police officer or agency that breaches that duty can be held liable
Official immunity
a defense in state tort cases if an act is discretionary, done in good faith, and the officer was acting within the scope of authority
Discretionary act
An act that involves personal deliberation, decision, and judgement
Good faith
When an officer acts in the honest belief that the action taken or the decision was appropriate under the circumstances
Acting within the scope of authority
When an officer is discharging the duties generally assigned.
Indemnification
Compensation for incurred hurt, loss, or damge
Myth or Reality: If a police officer is sued, the police department will cover all of the costs of his or here defense
Myth
Myth or reality: Police departments do not always cover the costs of defending a police officer who is sued. It depends on agency policy and whether the officer’s conduct was egregious
Reality
Deliberate indifference
No fixe definition; generally a higher form of negligence than mere indifference but lower than conduct that shocks the conscience
Deep pocket theory
Officers generally have limited financial resources, but the city, county, or municipality has deeper pockets of funds
Municipal policy
A statement, ordinance, regulation or decision that is officially adopted and promulgated by governmental authorities
Municipal custom
A persistent widespread practice that is so common or well settled as to constitute municipal policy
Electronic surveillance
The use of electronic devices to monitor a person’s activities or location
Old concept of electronic surveillance
Electronic surveillance was unconstitutional only if there was a trespass
New concept of electronic surveillance
Electronic surveillance is unconstitutional if it violates a reasonable expectation of privacy
Myth v. Reality: The Fourth Amendment only applies to situations where police trespass or interfere with a person’s house, papers, or effects
Myth
Myth vs. Reality: The Fourth Amendment applies whenever and wherever a person has a reasonable expectation of privacy
Reality
Title III of the Omnibus Crime Control and Safe Streets Act of 1968
government agents cannot tap or intercept wire communications except if a court order has authorized the wiretap, or if consent is given by one of the parties
Electronic Communications and Privacy Act of 1986
Amends and supplements the provisions of Title III
Communications Assistance for Law Enforcement Act in 1994
Enacted to keep up with advance in telecommunications technology
Foreign intelligence Surveillance Act of 1978
sees the procedure for foreign intelligence
Pen registers
Devices that record the numbers dialed from a particular telephone
Myth vs. Reality: Police may install a tracking device on a vehicle any time it is in public, because there is no reasonable expectation of privacy in a public area
Myth
Myth vs. Reality: Police may not install a tracking device on a vehicle without a search warrant, as a vehicle is an effect protected by the Fourth Amendment from police trespass
Reality
USA Patriot Act
Acronym for the 2001 antiterrorism law, Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and obstruct Terrorism Act of 2001 and subsequent amendments
Department of Homeland Securtiy
consolidated twenty-two federal agencies; its purpose is to secure the homeland from terrorist attacks
Community Oriented Policing Services (COPS)
federal-local law enforcement program efforts to fight terrorism
