Criminal Procedure [Highly Tested Rules]

Question 1

What does the Fourth Amendment provide?

Answer 1

The Fourth Amendment provides that people should be free in their persons from unreasonable searches and seizures
* The Fourth Amendment generally only protects against unreasonable searches and seizures by government agents (i.e., police officers, other government agents, or private individuals acting at the direction of police officers); it does not protect against searches or seizures by privately paid “police” (i.e., security guards, campus police) unless they are deputized as officers of the public police force

Question 2

What is a “search”?

Answer 2

A “search” is a governmental intrusion into an area where a person has a reasonable expectation of privacy

Question 3

What is a “seizure”?

Answer 3

A “seizure” is the exercise of control by the government over a person or property

Question 4

What is an “arrest”?

Answer 4

An “arrest” occurs when the police take a person into custody against his will for purposes of criminal prosecution or interrogation
* An arrest constitutes a seizure of the person arrested for purposes of the Fourth Amendment

Question 5

What is required to make an arrest?

Answer 5

An arrest must be based on “probable cause,” which exists when, at the time of arrest, the arresting officer had knowledge of facts and circumstances or reasonably trustworthy information that was sufficient to warrant a reasonably prudent person to believe that the suspect had committed or is committing a crime for which arrest is authorized by law

Question 6

Is a warrant required to make an arrest?

Answer 6

In contrast to the general rule for searches, police generally do NOT need to obtain an arrest warrant before arresting a person in a public place, even if they have time to obtain a warrant
* BUT: The police MUST obtain an arrest warrant to effect a nonemergency arrest of an individual in their home

Question 7

What is the effect of an unlawful arrest?

Answer 7

An unlawful arrest, by itself, has no impact on a subsequent criminal prosecution
* BUT: The exclusionary rule prohibits the prosecution from offering evidence that is fruit of the unlawful arrest against the defendant at trial

Question 8

What is a Terry stop?

Answer 8

When a police officer has an articulable and reasonable suspicion that an individual is engaged, or about to be engaged, in criminal activity, the officer may briefly stop and detain the person for investigative purposes (a “Terry stop”)
* If the officer also has a reasonable suspicion that the individual may be armed and dangerous, the officer may conduct a protective patdown (“frisk”) of the person’s outer clothing for concealed weapons

Question 9

What is “reasonable suspicion” for purposes of making a Terry stop?

Answer 9

“Reasonable suspicion” requires more than mere vague suspicion but less than probable cause
* Whether the officer had reasonable suspicion to conduct a Terry stop is judged under the totality of the circumstances
* Where reasonable suspicion is based on an informant’s tip, the tip must be accompanied by sufficient indicia of reliability (including predictive information)

Question 10

What is the permissible scope and duration of a Terry stop?

Answer 10

Although Terry stops are not subject to a specific time limit, the detaining officer must act in a diligent and reasonable manner in confirming or dispelling their suspicions
* The officer may ask the detained person to identify himself, and the detainee may be arrested for failure to comply with such a request
* The detention may become an arrest if, during the Terry stop, the officer develops probable cause for such arrest

Question 11

When may the police stop an automobile?

Answer 11

Police officers may stop an automobile if they have at least reasonable suspicion to believe that a law has been violated
* An automobile stop constitutes a seizure of the automobile’s driver and passengers
* After lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants to get out of the vehicle
* If the officer reasonably believes the occupants are armed and dangerous, the officer may conduct a frisk of the occupants and search the passenger compartment of the vehicle for concealed weapons, even after the occupants have been ordered out of the vehicle

Question 12

When may the police set up a roadblock?

Answer 12

If special law enforcement needs are involved, police officers may set up roadblocks to stop cars without individualized suspicion that the driver has violated a law, but only if the roadblock:
1. stops cars on the basis of some neutral, articulable standard (e.g., every car); AND
2. is designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility

Question 13

When does a person have standing to have object to an evidentiary search or seizure?

Answer 13

To have standing to object to an evidentiary search or seizure, a person must have their own reasonable expectation of privacy with respect to the area searched or item seized

Question 14

When does a person have a reasonable expectation of privacy with respect to an area searched or item seized?

Answer 14

Whether a person has a reasonable expectation of privacy is generally judged by the totality of the circumstances, but the Supreme Court has held that a person has a reasonable expectation of privacy any time:
1. the person owned or had a right to possession of the place searched;
2. the place searched was in fact their home, whether or not they owned or had a right to possession of it; OR
3. the person was an overnight guest of the owner of the place searched

Question 15

What is the Fourth Amendment warrant requirement?

Answer 15

To be reasonable under the Fourth Amendment, evidentiary searches and seizures by government agents must be pursuant to a search warrant unless a valid exception applies

Question 16

What are the requirements of a facially valid search warrant?

Answer 16

For a search warrant to be facially valid, the warrant must:
1. be based on an officer’s affidavit showing there is probable cause to believe seizable evidence will be found on the person or premises to be searched at the time the warrant is executed (may be anticipatory);
2. describe with particularity the place to be searched and items to be seized; AND
3. be issued by a neutral and detached magistrate

Question 17

When can a search warrant be invalidated on the basis of an invalid affidavit?

Answer 17

A search warrant can be invalidated on the basis of an invalid affidavit submitted to obtain the warrant ONLY IF:
1. the affiant intentionally or recklessly included a false statement in the affidavit; AND
2. the false statement was material to the finding of probable cause

NOTE: This is a very difficult test to satisfy, and a defendant is rarely successful in challenging the warrant affidavit

Question 18

What is required when executing a search warrant?

Answer 18

When executing a search warrant:
1. the police must knock, announce their purpose, and wait a reasonable time for admittance unless the executing officer has a reasonable suspicion, based on facts, that announcing his presence would be (i) dangerous or futile, or (ii) would inhibit the investigation
2. the police may not be accompanied by third parties unless they are present to aid in identifying stolen property
3. the scope of the search is limited to what is reasonably necessary to discover the items described in the warrant, but police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant
4. the police may detain occupants of the premises during the search, but the warrant does not authorize police to search persons found on the premises who were not named in the warrant

NOTE: Violations of the knock and announce rule will not result in the suppression of evidence otherwise properly obtained

Question 19

What are the exceptions to the warrant requirement?

Answer 19

Hot Pursuit
Emergency Aid
-
Evanescent Evidence
Search Incident to Lawful Arrest
Consent
Automobile
Plain View
Exigent Circumstances
Stop and Frisk

Remember: “HE ESCAPES”

Question 20

What is the “hot pursuit” exception to the warrant requirement?

Answer 20

Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure as broad as may be reasonably necessary to prevent the suspect from escaping or resisting
* As a rule of thumb, if the police are not within 15 minutes behind the fleeing felon, it is not a hot pursuit that triggers this exception
* The flight of a person suspected of a misdemeanor does NOT always justify a warrantless home entry; an officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry

Question 21

What is the “emergency aid” exception to the warrant requirement?

Answer 21

Emergencies that threaten health or safety if not immediately acted upon will justify a warrantless search, including situations where the police see someone injured or threatened with injury

Question 22

What is the “evanescent evidence” exception to the warrant requirement?

Answer 22

Police officers may make a warrantless seizure of evidence likely to disappear before a warrant can be obtained (e.g., scrapings of tissue from under a suspect’s fingernails)
* Whether such a warrantless search is reasonable is judged by the totality of the circumstances

Question 23

What is the “search incident to a lawful arrest” exception to the warrant requirement?

Answer 23

When the police have made a lawful arrest, the police may conduct a contemporaneous search of (1) the person arrested and (2) the areas within the person’s “wingspan” (or reaching distance)
* The police may also make a protective sweep of the area beyond the arrested person’s wingspan if they reasonably believe accomplices may be present

Question 24

When may the police conduct a warrantless search of an automobile incident to a lawful arrest?

Answer 24

After making a lawful arrest of an occupant of an automobile, the police may search the interior of the automobile if, at the time of the search:
1. the arrested person is unsecured and still may gain access to the interior of the vehicle; OR
2. the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

Question 25

When may the police conduct a warrantless inventory search incident to a lawful arrest?

Answer 25

After making a lawful arrest, the police may conduct an inventory search of the arrestee’s belongings pursuant to an established department procedure
* Similarly, the police may conduct an inventory search of an impounded vehicle in its entirety

Question 26

How does a court assess the constitutionality of a search incident to a lawful arrest involving technology that did not exist when the Fourth Amendment was adopted?

Answer 26

The court will balance (1) the degree to which the search incident to arrest intrudes on a person’s privacy against (2) the degree to which the search is needed to promote legitimate governmental interests

Question 27

What is the “consent” exception to the warrant requirement?

Answer 27

The police may conduct a warrantless search of an area if they have voluntary consent to do so
* The scope of the search is limited by the scope of the consent; however, consent extends to all areas to which a reasonable person under the circumstances would believe it extends

Question 28

Who can consent to a warrantless search?

Answer 28

Any person with an apparent equal right to use or occupy the property may consent to a search
* The search is valid even if the person did NOT actually have such right as long as the police reasonably believed the person had authority to consent

An occupant CANNOT give valid consent to a search when (1) a co-occupant is present and objects to the search, and (2) the search is directed against the co-occupant
* BUT: If the objecting co-occupant is removed for a reason UNRELATED to the refusal (e.g., a lawful arrest), the police may act on consent of the occupant, even if the removed co-occupant had refused consent

Question 29

What is the “automobile” exception to the warrant requirement?

Answer 29

If the police have probable cause to believe that a vehicle contains fruits, instrumentalities or evidence of a crime, they may conduct a warrantless search of the entire vehicle and any container in the vehicle that might reasonably contain the evidence for which they had probable cause to search
* The police may search a passenger’s belongings; the scope of the search is not limited to the driver’s belongings
* The probable cause necessary to justify a warrantless search of an automobile can arise after stopping a vehicle, but it must arise before the search

NOTE: If the vehicle is parked within the curtilage of a suspect’s home, the police must obtain a warrant to search the vehicle

Question 30

What is the “plain view” exception to the warrant requirement?

Answer 30

A police officer may make a warrantless seizure of evidence or contraband when:
1. the officer is legitimately on the premises at the time (e.g., on a public sidewalk, executing a search warrant, conducting a lawful warrantless search);
2. the item is in “plain view” of the officer (i.e., visible to the naked eye or can be smelled, heard, etc.); AND
3. the officer has probable cause to believe (i.e., it must be immediately apparent) that the item is evidence of a crime or contraband

Question 31

What is the “exigent circumstances” exception to the warrant requirement?

Answer 31

Police officers may enter a home without a warrant to prevent the destruction of evidence if the officers (1) have reason to believe that evidence is being destroyed and (2) did not create the exigency through an actual or threatened Fourth Amendment violation

Question 32

What is the “stop and frisk” exception to the warrant requirement?

Answer 32

A police officer may stop and briefly detain a suspect without probable cause for arrest if the officer has an articulable and reasonable suspicion of criminal activity (a “Terry stop”)

If the officer reasonably believes that the suspect may be armed and dangerous, the officer may conduct a protective patdown of the person’s body and outer clothing for concealed weapons (a “Terry frisk”)
* The scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing
* During the frisk, the officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence

Question 33

When does the “stop and frisk” exception to the warrant requirement apply to automobiles?

Answer 33

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

Question 34

What is the due process “catch-all”?

Answer 34

When evidence is obtained in a manner that offends the “sense of justice” inherent in due process (i.e., “shocks the conscience”), it is inadmissible under the Due Process Clause of the Fifth Amendment and Fourteenth Amendment

Question 35

Which rights are implicated by a defendant’s confession or other incriminating admission?

Answer 35

The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the Fourth, Fifth, Sixth and Fourteenth Amendments
* Fourth Amendment: prohibits unreasonable searches and seizures by the government
* Fifth Amendment: gives defendants rights against testimonial self-incrimination
* Sixth Amendment: gives defendants rights regarding the assistance of counsel
* Fourteenth Amendment: protects against involuntary confessions

Question 36

What is required for a self-incriminating statement to be admissible under the Due Process Clause of the Fourteenth Amendment?

Answer 36

For a self-incriminating statement to be admissible under the Due Process Clause of the Fourteenth Amendment, it must be voluntary
* Whether a confession is voluntary is determined by the totality of the circumstances, including:
(1) the age, education, and mental and physical condition of the suspect; AND
(2) the setting, duration and manner of police interrogation
* A confession will be rendered involuntary for purposes of the Fourteenth Amendment only if there is some official compulsion

Harmless Error Test Applies
A conviction will not necessarily be overturned if an involuntary confession was erroneously admitted into evidence
* The harmless error test applies, and the conviction will not be overturned if the government proves beyond a reasonable doubt that the conviction would have resulted DESPITE the improper evidence

Question 37

What is the Fifth Amendment privilege against self-incrimination?

Answer 37

The Fifth Amendment, applicable to the states through the Fourteenth Amendment, provides that no person “shall be compelled to be a witness against himself,” which has been interpreted to mean that a person has a privilege not to be compelled to give self-incriminating testimony

Question 38

What is required for a confession to be admissible under the Fifth Amendment privilege against compelled self-incrimination?

Answer 38

For an admission or confession to be admissible under the Fifth Amendment privilege against compelled self-incrimination, a person in custody MUST, prior to interrogation by the police, be given Miranda warnings informing him (in substance) that:
1. he has the right to remain silent;
2. anything he says can be used against him in court;
3. he has the right to the presence of an attorney; AND
4. if he cannot afford an attorney, one will be appointed for him if he so desires

Question 39

When do Miranda rights attach?

Answer 39

Anyone in police custody and accused of a crime, no matter how minor the crime, must be given Miranda warnings prior to interrogation by the police
* Generally, Miranda warnings are necessary only if the detainee knows that he is being interrogated by a government agent; Miranda does not apply when the detainee is being interrogated by an informant who he does not know is working for the police

Question 40

When is a person in “custody” for purposes of the Miranda requirement?

Answer 40

Determining whether a person is in “custody” is a two-step process:
1. The first step (the “freedom of movement test”) requires the court to determine whether a reasonable person under the circumstances would feel that he was free to terminate the interrogation and leave
> All of the circumstances surrounding the interrogation must be considered
2. The second step requires the court to consider whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda
> The more a setting resembles a traditional arrest (i.e., the more constrained the suspect feels), the more likely the court will consider it to be custody

Question 41

What is “interrogation” for purposes of the Miranda requirement?

Answer 41

“Interrogation” refers to any words or conduct by the police that they should know are reasonably likely to elicit an incriminating response from the detainee
* Thus, Miranda does NOT apply to:
(1) spontaneous statements not made in response to interrogation (but officers must give Miranda warnings before asking any follow-up questions); OR
(2) routine booking questions (e.g., name, address, age, etc.)

Question 42

What is required to establish a valid waiver of Miranda rights?

Answer 42

To establish a valid waiver of Miranda rights, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary
* The court will look to the totality of the circumstances in determining whether this standard was met, but it likely will find a valid waiver if the detainee was given Miranda warnings and then chose to answer questions

NOTE: That if the detainee does not respond at all after being given Miranda warnings, a waiver will not be presumed, but the court will also not presume that the detainee invoked his right to remain silent or right to consult with an attorney

Question 43

How does a person invoke their Fifth Amendment right to remain silent?

Answer 43

At any time prior to or during interrogation, the detainee may invoke his right to remain silent, which must be explicit, unambiguous and unequivocal
* If the detainee so invokes his right to remain silent, the police must “scupulously honor” the detainee’s request by
(1) immediately ceasing all questions related to the particular crime;
(2) not badgering the detainee into talking; AND
(3) waiting a significant amount of time before reinitiating any questioning (the police should probably also rewarn the detainee of his Miranda rights and limit questioning to a different crime)

Question 44

How does a person invoke their Fifth Amendment right to counsel?

Answer 44

At any time prior to or during interrogation, the detainee may invoke a Miranda (i.e., Fifth Amendment) right to counsel, which must be done by an unambiguous and specific request for counsel in dealing with the custodial interrogation that is sufficiently clear such that a reasonable police officer in the same situation would understand the statement to be a request for counsel
* If the detainee so invokes his Fifth Amendment right to counsel, ALL QUESTIONING MUST CEASE until counsel has been provided UNLESS:
(1) the detainee waives his right to counsel by reinitiating questioning on his own; OR
(2) the detainee is released from custody and 14 days have passed after the detainee returns to his normal life
* Once the Fifth Amendment right to counsel has invoked, the police also cannot resume questioning the detainee without his counsel present
* Mere consultation with counsel prior to questioning does not satisfy the right to counsel

Question 45

What is the effect of a violation of a defendant’s Miranda rights?

Answer 45

Generally, evidence obtained in violation of a defendant’s Miranda rights is inadmissible at trial

EXCEPTIONS
* Impeachment: Statements obtained in violation of the defendant’s Miranda rights may be used to impeach the defendant’s testimony if he takes the stand at trial, but may not be used as evidence of guilt
* Subsequent Confession After Miranda Warnings Given: If the police obtain a confession from a detainee without giving him Miranda warnings and then subsequently give the detainee Miranda warnings and obtain a subsequent valid confession, the second confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent
* BUT: If the “question first, warn later” nature of the questioning was intentional, the second confession will be inadmissible
* Nontestimonial Fruits of Unwarned Confession: If the police fail to give Miranda warnings and, during interrogation, the detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure to give Miranda warnings was purposeful, but the evidence will likely NOT be suppressed if the failure to give Miranda warnings was not purposeful

Question 46

What is the public safety exception to the Miranda requirement?

Answer 46

Failure to give Miranda warnings does not bar admission of statements by a detainee in response to police interrogation that was reasonably prompted by concern for public safety (e.g., the police asking a suspect where a gun was hidden when they were reasonably concerned it might cause injury to an innocent person)

Question 47

What is the Sixth Amendment right to counsel?

Answer 47

The Sixth Amendment provides that a defendant has a right to the assistance of counsel in all criminal prosecutions, which applies at all critical stages of a prosecution AFTER adversary judicial proceedings have begun (i.e., after formal charges have been filed)
* The Sixth Amendment right to counsel is violated when, after a defendant has been indicted, the police deliberately elicit an incriminating statement from the defendant without first obtaining a waiver of the defendant’s right to have counsel present

Question 48

At what stages does the Sixth Amendment right to counsel NOT apply?

Answer 48

The Sixth Amendment right to counsel does NOT apply at the following stages:
1. blood sampling
2. taking of handwriting or voice exemplars
3. precharge or investigative lineups
4. photo identifications
5. preliminary hearings to determine probable cause to detain
6. brief recesses during the defendant’s testimony at trial
7. discretional appeals
8. parole and probation revocation proceedings
9. postconviction proceedings (e.g., habeas corpus), including petitions by death-row inmates

Question 49

Explain the “offense specific” nature of the Sixth Amendment right to counsel

Answer 49

The Sixth Amendment right to counsel is “offense specific”
* Thus, if a defendant invokes his Sixth Amendment right to counsel for one charge, he may be questioned without counsel present concerning a separate, unrelated charge without violating the Sixth Amendment right to counsel
* BUT: Such interrogation might violate the defendant’s Fifth Amendment Miranda right to counsel

Question 50

When are offenses “different” for purposes of the Sixth Amendment?

Answer 50

The test for determining whether offenses are different for Sixth Amendment purposes is the Blockburger test, which provides that two crimes are considered different offenses if EACH requires proof of an additional element that the other crime does not

Question 51

What is required to establish a valid waiver of the Sixth Amendment right to counsel?

Answer 51

A valid waiver of the Sixth Amendment right to counsel must be knowing, intelligent and voluntary
* The waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but, rather, was appointed by the court

Question 52

What is the effect of a statement obtained in violation of a defendant’s Sixth Amendment right to counsel?

Answer 52

A statement obtained in violation of a defendant’s Sixth Amendment right to counsel is not admissible in the prosecution’s case-in-chief, but it may be used to impeach the defendant’s testimony if he takes the stand at trial

Question 53

What is the effect of a violation of a defendant’s Sixth Amendment right to counsel?

Answer 53

The Sixth Amendment provides that a defendant in a criminal prosecution has a right to the assistance of counsel at all critical stages of the prosecution after formal charges have been brought
* Violation of a defendant’s Sixth Amendment right to counsel at trial, including erroneous disqualification of the defendant’s privately retained counsel, requires reversal
* For violations of the right to counsel at nontrial proceedings, the harmless error test applies

Question 54

What is required for a defendant to waive the right to counsel at trial?

Answer 54

A defendant has a right to defend himself at trial if, in the judgment of the trial court judge, the defendant’s waiver of the right to counsel is knowing and intelligent, and the defendant is competent to proceed pro se
* A waiver of the right to counsel is knowing and intelligent if the defendant has a rational and factual understanding of the proceeding against him

Question 55

What is the Sixth Amendment right to effective assistance of counsel?

Answer 55

The Sixth Amendment right to counsel includes the right to effective assistance of counsel
* Effective assistance of counsel is generally presumed
* To prevail on a Sixth Amendment ineffective assistance claim, the defendant must show:
(1) deficient performance of counsel based on specific errors, not mere inexperience, lack of time to prepare, gravity of the charges, complexity of defenses, or lack of accessibility of witnesses; AND
(2) but for such deficiency, the result of the proceeding would have been different (e.g., no conviction or shorter sentence)

Question 56

When is the Sixth Amendment right to a speedy trial violated?

Answer 56

A determination of whether a defendant’s Sixth Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances, considering factors such as:
1. length of delay;
2. reason for delay;
3. whether defendant asserted right to speedy trial; and
4. prejudice to defendant

Question 57

What is the “exclusionary” rule?

Answer 57

The exclusionary rule is a judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant’s Fourth, Fifth and Sixth Amendment rights
* Under the rule, unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” (i.e., evidence obtained from exploitation of the unconstitutionally obtained evidence) must also be excluded UNLESS the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct

Question 58

In what types of proceedings is the exclusionary rule inapplicable?

Answer 58

The exclusionary rule is inapplicable in:
1. grand jury proceedings (unless evidence obtained in violation of federal wiretapping statute)
2. civil proceedings
3. parole revocation proceedings

Question 59

What is the “good faith warrant” exception to the exclusionary rule?

Answer 59

The exclusionary rule does not apply when the police relied in good faith on a defective search warrant that they believed was valid

EXCEPTIONS
A police officer cannot rely on a defective search warrant in good faith if:
1. the affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it;
2. the warrant is defective on its face (e.g., it fails to state with particularity the place to be searched or the things to be seized);
3. the police officer obtaining the warrant lied to or misled the magistrate; OR
4. the magistrate was biased and thus “wholly abandoned his judicial role”

Question 60

What is the “fruit of the poisonous tree” doctrine?

Answer 60

Generally, not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from exploitation of that evidence
* The courts deem such evidence the “tainted fruit of the poisonous tree”

Question 61

What is the balancing test courts must apply in deciding whether to apply the exclusionary rule?

Answer 61

The Supreme Court has emphasized that, in deciding whether to apply the exclusionary rule, lower courts must balance the rule’s purpose (i.e., deterrence of police misconduct) against its costs (i.e., the exclusion of probative evidence)
* Thus, exclusion of tainted evidence, including fruit of the poisonous tree, is NOT automatic; whether exclusion is warranted in a given case depends on “the culpability of the police and the potential of the exclusion to deter wrongful police conduct”

Question 62

What are the exceptions to the “fruit of the poisonous tree” doctrine?

Answer 62

Exceptions to the “fruit of the poisonous tree” doctrine include:
1. Non-testimonial fruits derived from Miranda violations that were NOT purposeful
2. The independent source exception
3. The attenuation exception
4. The inevitable discovery exception
5. A witness’s in-court identification

Question 63

What is the “independent source” exception to the fruit of the poisonous tree doctrine?

Answer 63

Evidence is admissible if the prosecution can show that it was obtained from a source independent of the original illegality

Question 64

What is the “attenuation” exception to the fruit of the poisonous tree doctrine?

Answer 64

If the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the causal link between the police misconduct and the evidence is broken, the evidence will NOT be supressed

Question 65

What factors will a court consider in determining whether the attenuation exception applies?

Answer 65

In determining whether the “attenuation” exception applies, court will consider:
1. the temporal proximity between the unconstitutional conduct and the discovery of the evidence (the closer the temporal proximity, the less likely the exception applies);
2. the presence of intervening circumstances; AND
3. most importantly, the purpose and flagrancy of the official misconduct

Question 66

What is the “inevitable discovery” exception to the fruit of the poisonous tree doctrine?

Answer 66

If the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will be admissible

Question 67

What is the “harmless error” test?

Answer 67

If unconstitutionally obtained evidence is erroneously admitted into evidence, a resulting conviction will NOT be overturned on appeal if the government can prove beyond a reasonable doubt that the error was harmless—it would have resulted despite the improperly admitted evidence

Question 68

What is required for a guilty plea?

Answer 68

The judge must determine that the guilty plea is voluntary and intelligent, by addressing the defendant personally in open court on the record and ensuring that the defendant knows and understands:
1. the nature of the charge to which the plea is offered, and the crucial elements of the crime charged;
2. the maximum possible penalty, and any mandatory minimum; and
3. that the defendant has a right not to plead guilty, and if they do plead guilty, they waive the right to trial

Question 69

On what grounds can a guilty plea be set aside?

Answer 69

Guilty pleas that are viewed as an intelligent choice among a defendant’s alternatives are immune from collateral attack, but a guilty plea can be set aside for:
1. involuntariness (failure to meet standards for taking a plea);
2. lack of jurisdiction;
3. ineffective assistance of counsel; or
4. failure to keep the plea bargain

Question 70

When does an identification of a defendant violate his rights under the Due Process Clause of the Fourteenth Amendment?

Answer 70

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