Criminal Procedure (Main Deck)*

Question 1

WHAT 4 AREAS SHOULD YOU CONSIDER WHEN APPROACHING A CRIMINAL PROCEDURE PROBLEM?

Answer 1

**STEP 1: **4TH AMENDMENT

1A: PROPER SEIZURES

1B: PROPER SEARCHES

STEP 2: 5TH & 6TH AMENDMENTS

2A: RIGHT TO COUNSEL

2B: RIGHT AGAINST SELF-INCRIMINATION

STEP 3: SUPPRESSION OF EVIDENCE

STEP 4: PROCEDURAL ISSUES

4A: PRE-TRIAL ISSUES

4B: TRIAL ISSUES

4C: POST-TRIAL ISSUS

Question 2

STEP 1: 4TH AMENDMENT WHAT PROTECTIONS ARE OFFERED BY THE 4TH AMENDMENT?

Answer 2

Rule: The 4th Amendment requires that:

1) Searches and seizures be reasonable, AND
2) Warrants be supported by probable cause and an oath or affirmation particularly describing:
a) The place to be searched, AND/OR
b) The person or things to be seized.

Note:

1) The 4th Amendment protects against government (not private) activity.
2) The 4th Amendment has been incorporated through the 14th Amendment’s Due Process Clause to apply to the states.

Question 3

SEIZURE:

WHAT IS THE TEST TO DETERMINE IF A SEIZURE HAS OCCURRED FOR 4TH AMENDMENT PURPOSES?

Answer 3

Seizure of Property: A seizure of property occurs when a government actor has meaningfully interfered with an individual’s possessory interests in the property.

Seizure of a Person: A seizure of a person has occurred if:

1) A police officer has restrained a person’s liberty by means of physical force or show of authority, AND
2) A reasonable person, in view of the totality of the circumstances surrounding the incident, would have believed he was not free to leave.

Note:

1) A police officer merely asking a question of someone in a public space is not a seizure.
2) In an encounter with authority figures, if a person is free to disregard them and walk away, a seizure has not occurred.

Question 4

WHAT IS THE TEST TO DETERMINE IF A SEIZURE OF A PERSON IS REASONABLE?

Answer 4

Rule: A seizure is reasonable only if the government actor has an objective and particularized justification for
suspecting the individual of wrongdoing. The level of suspicion required depends on the type of seizure at issue.

Question 5

LIST 3 TYPES OF SEIZURES OF A PERSON YOU MAY ENCOUNTER IN A CRIMINAL PROCEDURE QUESTION

Answer 5

1) Investigatory Detention
2) Stationhouse Questioning
3) Arrest

Question 6

INVESTIGATORY DETENTION

(Define & State the Rule)

Answer 6

Definition: An investigatory detention (a.k.a. investigatory stop) is a brief stop by law enforcmentforthe purpose of investigating possible criminal activity.

Rule: To constitutionally perform an investigatory stop:

1) Police must have a reasonable suspicion of criminal activity, AND
2) The length and circumstances of the detention must be reasonable.

Note:

1) Whether the length of the detention is reasonable depends on the purpose of the stop and the time required for the police to obtain information.
2) An unreasonably long detention will become a de facto arrest.
3) If the detention becomes a de facto arrest, probable cause must be established.

Question 7

TRAFFIC STOP

(Define & State the Rule)

Answer 7

Definition: A traffic stop occurs when the driver of a vehicle is temporarily detained by police for the purpose of investigating a possible crime or civil infraction.

Rule: Police must have reasonable suspicion that a law has been violated or is being violated to make a traffic stop.

Note:

1) Police may stop a vehicle for an observed traffic violation even if:
a) The real motivation was to investigate for evidence of another crime, AND/OR
b) The police do not customarily stop motorists for the violation observed.
2) Sobriety and immigration checkpoints are permissible.
3) Random stops of motorists to check driver’s license, registration, or safety features of cars are not permissible.
4) The police can run a warrant check during a traffic stop as long as it does not unreasonably prolong the duration of the stop.

Question 8

STATION HOUSE QUESTIONING

(Define & State the Rule)

Answer 8

Definition: Stationhouse questioning occurs when a suspect is transported to a police station (or other police area) for investigatory purposes, but is not arrested.

Rule: Police must have probable cause to bring a suspect in against her will for stationhouse questioning or fingerprinting.

Note:

1) Probable cause is not required if the suspect consents to the questioning or fingerprinting.
2) If probable cause does not exist and the suspect consents to questioning, the suspect must be free to leave the stationhouse at will. If the suspect is not free to leave, the detention is treated as an arrest.

Question 9

ARREST

(Define & State the Rule)

Answer 9

Definition: An arrest is the taking of a person into custody against his will for the purpose of criminal interrogation or prosecution.

Rule: A police officer must have probable cause to make an arrest.

Note:

1) An arrest warrant is not required to arrest a person in public.
2) An arrest warrant is required to make a non-emergency arrest of a suspect inside the suspect’s home.
3) Both an arrest warrant and a search warrant (or consent to enter) are required to make a non-emergency arrest of a suspect inside a third party’s home.

Question 10

EXPLAIN THE DIFFERENCE BETWEEN PROBABLE CAUSE & REASONABLE SUSPICION

Answer 10

Probable Cause (Arrest): Probable cause exists if the facts and circumstances within an officer’s knowledge at the time of the arrest would lead a prudent person to believe the arrestee had committed or was committing a crime.

**Reasonable Suspicion (Stop or Detention): **Reasonable suspicion exists when a police officer has an articulable and particularized belief, based on more than a hunch or conjecture, that a person has engaged or is engaging in criminal activity.

Question 11

WHAT IS THE TEST TO DETERMINE IF 4TH AMENDMENT PROTECTIONS APPLY TO A SEARCH CARRIED OUT BY POLICE?

Answer 11

Rule: A search carried out by police is subject to 4th Amendment protections if a person has a reasonable expectation of privacy in the person, place or thing that is
searched.

Note: A search can be surveillance or physical intrusion of a person, place, or thing.

Question 12

REASONABLE EXPECTATION OF PRIVACY

(State the Rule)

Answer 12

Rule: A reasonable expectation of privacy exists if both subjective and objective standards are met:

1) Subjective: The person actually expected some degree of privacy, AND
a) Note: Courts look to the person’s actions to see if she acted in accordance with such an expectation.
2) Objective: The expectation of privacy is reasonable.
a) Note: The reasonableness of the expectation is based on societal standards (i.e., whether society recognizes such expectation as reasonable).

Note: A person does not have a reasonable expectation of privacy in items held out to the public (e.g., one’s voice or handwriting, wafting odors, trash, abandoned property, open fields).

Question 13

IS A SEARCH WARRANT REQUIRED BEFORE THE POLICE CAN SEARCH A PERSON OR PROPERTY?

Answer 13

Rule: A warrant is required to search a person or property in which a reasonable expectation of privacy exists.

Exception: A warrant is not required to search a person or property if the search falls within one of the recognized exceptions to the warrant requirement.

Question 14

VALID SEARCH WARRANT

(State the Rule)

Answer 14

Rule: To be valid, a warrant must be:

1) Issued by a neutral and detached magistrate,
2) Supported by an oath or affirmation demonstrating facts sufficient to establish probable cause, AND
3) Describe with particularity the area to be searched and the items or persons to be seized.

Question 15

PROPER EXECUTION OF A SEARCH WARRANT

(State the Rule)

Answer 15

Rule: To be properly executed, a warrant must be carried out by law enforcement in a reasonable manner and without unreasonable delay.

Note: Though no bright line rule exists to determine the reasonableness of a search, the following apply:

1) The warrant should be served within 10 days of the date of issuance unless another date is specified in the warrant,
2) The warrant should be served between the hours of 6 a.m. and 10 p.m unless special permission is granted by the court, AND
3) Once begun, a search should be ongoing and continuous until the search is concluded.

Question 16

KNOCK & ANNOUNCE RULE

(State the Rule)

Answer 16

Rule: Before forcibly entering a residence to serve a warrant, police officers must knock and announce:

1) Their identity and authority (e.g., “Police!”),
2) Their purpose (e.g., “Search Warrant!”), AND
3) A demand to enter the home (e.g., “Open the door!”).

Exception: Police may enter without announcing their presence if they reasonably believe announcing their presence would be dangerous or evidence would be lost.

Note:

1) Police must wait a reasonable time before forcibly entering the home.
2) Forcibly entering a home ranges from breaking down the door to opening an unlocked door without permission.
3) The knock and announce requirement can be met by a phone call announcing the officers’ identity, purpose, and demand to enter.
4) Police may request a no-knock warrant be issued due to exigent circumstances.

Question 17

WHAT CAN POLICE DO AFTER ENTERING A RESIDENCE WITH A SEARCH WARRANT?

Answer 17

Rule: Once they have entered to search a home, police may:

1) Sweep the premises to ensure no one is hiding,
2) Detain occupants of the premises while the search is carried out, AND
a) Note: This includes occupants who are closely connected to the premises (e.g., standing nearby on the sidewalk or pulling out of the driveway),
b) Note: Some jurisdictions allow occupants to be detained only if the search is for contraband; others allow occupants to be detained during the execution of any search warrant.
3) Search areas where the evidence described in the warrant may reasonably be located,
a) Note: If a warrant provides a house address, all buildings and objects within the curtilage can also be searched.

Question 18

WHO HAS STANDING TO CHALLENGE A SEARCH WARRANT?

Answer 18

Rule: A person has standing to challenge a search warrant if that person has a legitimate expectation of privacy in the place or thing searched.

Note:

1) A person will always have standing to raise a 4th Amendment claim if he:
a) Has an ownership or possessory interest in the area searched, AND/OR
b) Was an overnight guest in a home that was searched.
2) A passenger of a vehicle has standing to challenge a search of the vehicle only if the initial seizure was improper (i.e., reasonable suspicion to stop the vehicle did not exist).

Question 19

LIST 8 EXCEPTIONS TO THE WARRANT REQUIREMENT

Answer 19

1) Consent
2) Plain View
3) Stop and Frisk (Terry Stop)
4) Search Incident to Arrest
5) Custodial Search
6) Vehicle Exception
7) Border Searches
8) Exigent Circumstances

Question 20

CONSENT

(State the Rule)

Answer 20

Rule: A warrantless search may be carried out if the owner or person with custody and control of the item or area to be searched has given voluntary and intelligent consent.

Note:

1) Police do not have to advise the person of her right to refuse consent.
2) The officer obtaining consent must establish that the person giving consent has:
a) Authority to consent to a search, AND
b) Mental capacity to give voluntary consent.
3) Consent may be withdrawn by an unequivocal act or statement of withdrawal.

Question 21

PLAIN VIEW

(State the Rule)

Answer 21

Rule: Police officers may make a warrantless seizure of an item if the:

1) Observing officer is lawfully present,
2) Item is in plain view,
3) Item is contraband, AND
4) Officer has probable cause to believe the item is associated with criminal activity.

Note:

1) Items viewed using spotlights or binoculars fall within the plain view exception.
2) If the police officer does not have probable cause to believe the item is associated with criminal activity, he cannot pick up, move, or manipulate the item.

Question 22

STOP & FRISK

(TERRY STOP)

(State the Rule)

Answer 22

Rule: If a police officer has reasonable suspicion that a suspect is armed and dangerous, the officer may perform a pat-down search of the suspect’s outer garments for concealed weapons.

Note:

1) The officer’s reasonable suspicion may be based upon an informant’s tip.
2) An officer may order occupants out of a vehicle to frisk them for weapons.
3) Although the pat-down may be conducted for weapons only, contraband that feels like but turns out not to be a weapon may be admissible.

Question 23

SEARCH INCIDENT TO ARREST

(State the Rule)

Answer 23

Rule: After making a lawful arrest, police officers may search the person of the suspect as well as the area within her wingspan (i.e., within her immediate control).

Note:

1) The search must be carried out contemporaneously with the arrest.
2) A search incident to arrest may be carried out regardless of the crime for which the person is arrested.

Question 24

CAN A VEHICLE BE SEARCHED INCIDENT TO AN ARREST?

Answer 24

Rule: A vehicle may be searched incident to a lawful arrest of an occupant if the:

1) Arrest was lawful,
2) Search was contemporaneous to the arrest,
3) Arrestee is a recent occupant of the vehicle, AND:
a) The officer reasonably believed evidence relevant to the crime for which the suspect was arrested will be found in the vehicle, OR
b) The arrestee is:
i) Unsecured, AND
ii) Within reaching distance of the passenger compartment.

Note:

1) The search may include the entire passenger compartment of the vehicle as well as any containers found in the passenger compartment.
2) A vehicle search incident to arrest can be executed even if the arrestee has locked and walked away from the car before encountering the police.

Question 25

CUSTODIAL SEARCH

(Define & State the Rule)

Answer 25

Definition: A custodial search is a search conducted after transporting the arrestee to the stationhouse for processing (booking).

Rule: A warrantless search of the arrestee’s person and personal effects may be conducted at the stationhouse for the purpose of inventorying and securing the items.

Question 26

VEHICLE EXCEPTION

(State the Rule)

Answer 26

Rule: If the police have probable cause to believe that a vehicle contains contraband or evidence of a crime, the police may search the entire vehicle and its contents.

Note:

1) The search may be as thorough as though the police had a search warrant.
2) The vehicle may be moved to another location before executing the search.

Question 27

INVENTORY SEARCH OF AN IMPOUNDED VEHICLE

(Define & State the Rule)

Answer 27

Definition: An inventory search is a search conducted for inventory purposes after impounding a vehicle.

Rule: A warrantless search of an impounded vehicle may be conducted without probable cause if the:

1) Vehicle is lawfully impounded,
2) Search is conducted for inventory purposes,
3) Search is conducted pursuant to clearly established procedures, AND
4) Search is not a ruse for conducting an investigatory search.

Question 28

BORDER SEARCHES

(State the Rule)

Answer 28

Rule: People and property passing through U.S. borders are subject to warrantless searches without probable cause or reasonable suspicion.

Note:

1) Agents may search physical and electronic items (e.g., laptops, cell phones, cameras).
2) Warrantless searches are proper in places that are the functional equivalent of the physical border (e.g., international airports) if:
a) A reasonable certainty exists that the person or thing crossed the border,
b) A reasonable certainty exists that there was no change in the object of the search since it crossed the border, AND
c) The search was conducted as soon as practicable after the border crossing.

Question 29

EXIGENT CIRCUMSTANCES

(State the Rule)

Answer 29

Rule: A warrantless search may be carried out if police reasonably believe that immediate action is required to preserve evidence or to protect the welfare or safety of themselves, third parties, or property.

Note: Police may enter and search a private dwelling while in hot pursuit of a suspect.

Question 30

4TH AMENDMENT PROTECTION OF STUDENTS IN SEARCHES BY PUBLIC SCHOOL OFFICIALS

(State the Rule)

Answer 30

Rule: To conduct a warrantless search of a student’s person or property, public school officials must have:

1) Reasonable suspicion that a law or school rule has been oris being violated, OR
2) Reasonable cause to believe that the search is necessary to maintain school discipline.

Note:

1) Children and adolescents do not enjoy the same level of constitutional protection of privacy as do adults.
2) Mandatory drug-testing of high school athletes is constitutional.
3) Strip searches of students in search of narcotics are unconstitutional.

Question 31

STEP 2:

5TH & 6TH AMENDMENTS

WHAT PROTECTIONS ARE OFFERED BY THE 5TH AMENDMENT?

Answer 31

Rule: The 5th Amendment ensures a person’s right:

1) To be represented by an attorney while in custody,
2) Against self-incrimination,
3) To indictment by grand jury, AND
4) Against double jeopardy.

Note:

1) The 5th Amendment protects against government (not private) activity.
2) All of the 5th Amendment protections have been incorporated through the 14th Amendment’s Due Process Clause except the right to indictment by grand jury.

Question 32

WHAT PROTECTIONS ARE OFFERED BY THE 6TH AMENDMENT?

Answer 32

Rule: The 6th Amendment ensures a criminally accused person’s right to:

1) Be represented by an attorney,
2) Be informed of the charges against him,
3) A speedy trial,
4) A trial by jury, AND
5) Confront witnesses against him.

Note:

1) The 6th Amendment protects against government (not private) activity.
2) The 6th Amendment has been incorporated through the 14th Amendment’s Due Process Clause to apply to the states.

Question 33

EXPLAIN THE DIFFERENCE BETWEEN THE 5TH & 6TH AMENDMENT RIGHTS TO COUNSEL

Answer 33

5th Amendment: The 5th Amendment right to counsel attaches as soon as a suspect is in custody. A suspect’s right against compelled self-incrimination requires that she be given the opportunity to have an attorney during custodial questioning, regardless of the topic of the interrogation. The protection remains in force while the suspect is in custody and, if invoked, prevents police from attempting to question the suspect without a lawyer present for 14 days after the suspect is released.

6th Amendment: The 6th Amendment right to counsel does not attach until a suspect has been formally charged with a crime. Once charged, a defendant must be given the opportunity to be represented by an attorney at all critical stages of the criminal proceeding. Because the 6th Amendment right to counsel is offense-specific, it protects a defendant only in matters regarding the crime for which she has been formally charged and remains in force until the conclusion of the criminal proceedings (i.e., until charges are dropped or a verdict is reached).

Question 34

DOES A PERSON INCLUDED IN A LINEUP HAVE THE RIGHT TO COUNSEL?

Answer 34

Rule: Whether a person has the right to have an attorney present at a lineup depends on whether formal charges have been brought:

1) If already charged with a crime, the defendant has a 6th Amendment right to counsel,
2) If not charged with a crime, the suspect does not have a 6th Amendment right to counsel.

Note:

1) Defendants (but not suspects) also have the right to have an attorney present during a show up (i.e., when a police officer arranges a face-to-face encounter between a witness and the suspect).
2) Defendants do not have a right to counsel during other identification procedures such as photo spreads or the collecting of blood, DNA, handwriting, or voice samples.

Question 35

CAN THE RIGHT TO COUNSEL BE WAIVED?

Answer 35

Rule: The right to counsel can be waived by a suspect or defendant if relinquishment of the right is voluntary, knowing, and intelligent.

Note:

1) Police can ensure a voluntary, knowing, and intelligent waiver by reciting the Miranda warning before obtaining a waiver.
2) A suspect’s or defendant’s waiver of the right to counsel after receiving the Miranda warning waives the right under both the 5th and 6th Amendments.
3) A suspect or defendant can revoke her right to counsel after invoking the right if the revocation is voluntary, knowing, and intelligent.

Question 36

CONFESSIONS

(State the Rule)

Answer 36

Rule: Confessions must be given voluntarily and free of coercion. Courts look to the circumstances surrounding the confession to determine voluntariness, including whether the:

1) Defendant understood the nature of the offense with which he was charged,
2) Defendant was advised of his right to silence,
3) Defendant was advised of his right to counsel,
4) Defendant was represented by counsel when he confessed, AND
5) Time elapsed between the arrest and arraignment was reasonable (if confession made during this period).

Note:

1) Confessions obtained in violation of a defendant’s right to prompt arraignment will be excluded even if given voluntarily.
2) Until the 5th Amendment right against self-incrimination was applied to the states in 1964, the voluntariness of confessions in state prosecutions was required by due process.

Question 37

MIRANDA WARNING

(State the Rule)

Answer 37

Rule: Before interrogating a person in custody, the police must first inform the suspect that:

1) She has the right to be silent,
2) Anything she says can be used against her,
3) She has the right to an attorney, AND
4) If she cannot afford an attorney, one will be appointed to her.

Question 38

WHEN IS THE MIRANDA WARNING REQUIRED?

Answer 38

Rule:

The Miranda warning is required when:

1) A person is in police custody, AND
2) The police engage in questioning or activity that is reasonably likely to elicit an incriminating response.

Note:

1) Terry stops and traffic stops are non-custodial and do not require Miranda warnings.
2) Police do not have to provide the Miranda warning before requesting consent to search a person, item, or area.

Question 39

LIST 4 EXCEPTIONS TO THE MIRANDA REQUIREMENT

Answer 39

1) Routine Booking Questions
2) Jailhouse Informants
3) Undercover Agents
4) Public Safety

Question 40

MIRANDA WARNING:

ROUTINE BOOKING QUESTIONS

(State the Rule)

Answer 40

Rule: A Miranda warning is not required before asking routine questions during the processing (booking) of an arrestee because the questions are not expected to elicit an incriminating response.

Note: Routine questions include the arrestee’s name, address, height, and weight.

Question 41

MIRANDA WARNING:

JAILHOUSE INFORMANTS

(State the Rule)

Answer 41

Rule: The use of jailhouse informants to obtain a confession without administering the Miranda warning does not violate the 5th Amendment because the
protection against self-incrimination applies only to situations that are coercive in nature.

Question 42

MIRANDA WARNING:

UNDERCOVER AGENT

(State the Rule)

Answer 42

Rule: The use of undercover agents to obtain a confession without administering the Miranda warning does not violate the 5th Amendment because the
protection against self-incrimination only applies to situations that are coercive in nature.

Question 43

MIRANDA WARNING:

PUBLIC SAFETY EXCEPTION

(State the Rule)

Answer 43

Rule: The police may interrogate a suspect without first giving the Miranda warning if:

1) The police reasonably believe the information sought is necessary to protect against a substantial threat to
life or property, AND

2) The questions asked are limited to those that are reasonably necessary to obtain the needed information.

Question 44

MIRANDA WARNING:

INVOKING THE RIGHT TO SILENCE

(State the Rule)

Answer 44

Rule: If a suspect invokes the right to remain silent, the police must cease questioning and are prohibited from badgering the suspect.

Note: The police may resume questioning if:

1) A significant amount of time has passed,
2) The police have read the suspect her rights again, AND
3) The suspect voluntarily consents to the questioning.

Question 45

MIRANDA WARNING:

INVOKING THE RIGHT TO COUNSEL

(State the Rule)

Answer 45

Rule: If a suspect invokes the right to counsel under the 5th Amendment, all questioning by the police must stop until the suspect’s attorney is present.

Note:

1) The suspect’s request for counsel must be direct and unequivocal.
2) Once the right to counsel is invoked, the police may not question the suspect about any matter.
3) The police may not reinitiate interrogation without an attorney present unless the suspect:
a) Voluntarily invites the questioning on his own initiative, OR
b) Has been released from custody for 14 days.

Question 46

STEP 3:

SUPPRESSION OF EVIDENCE EXCLUSIONARY RULE

(State the Rule)

Answer 46

Rule: Evidence generally cannot be used for a criminal prosecution in a court of law if it was obtained as a direct result of a violation of the:

1) 4th Amendment,
2) 5th Amendment right against self-incrimination, OR
3) 6th Amendment right to counsel.

Note:

1) When determining whether to exclude evidence, courts weigh the deterrence benefits against the social costs of excluding the evidence.
2) The exclusionary rule applies to evidence improperly obtained by government actors or private individuals working as an agent of a government actor but not to private individuals working on their own.
3) The failure to knock and announce before executing a search warrant will not result in the exclusion of evidence.

Question 47

CONSEQUENCE OF DENYING COUNSEL AT A LINEUP

(State the Rule)

Answer 47

Rule: If a defendant is denied the assistance of counsel during a lineup:

1) All testimony relating to the out-of-court identification is inadmissible, AND
2) A courtroom identification will be prohibited unless an independent source for the identification can be established.

Note: To determine if an independent source exists, courts look to:

1) The witness’ prior opportunity to observe the criminal act,
2) Discrepancies between a pre-lineup description and the defendant,
3) Whether the witness identified any suspects before the lineup, AND
4) The lapse of time between the criminal act and the lineup.

Question 48

CONSEQUENCE OF FAILING TO ADMINISTER PROPER MIRANDA WARNING

(State the Rule)

Answer 48

Rule: Statements obtained in violation of Miranda cannot be used as direct evidence against an accused in a criminal proceeding.

Note:

1) Statements obtained in violation of Miranda can be introduced on cross-examination of a defendant to impeach her testimony.
2) Physical evidence discovered as a result of improperly obtained statements can be used against the defendant if the statements are voluntary.

Question 49

QUESTION-FIRST, WARN-LATER

(State the Rule)

Answer 49

Rule: Statements made before the Miranda warning is given are not admissible even if repeated verbatim after the suspect is informed of her Miranda rights unless the warning effectively informed the suspect of her right to
silence.

Note: To determine if a warning is sufficiently informative, courts consider the:

1) Detail of the questions and answers in the first round of interrogation,
2) Overlapping content of the two statements,
3) Timing and setting of the first and second interrogations,
4) Continuity of police personnel conducting the interrogation, AND
5) Degree to which the police treated the second round of questioning as a continuation of the first.

Question 50

FRUIT OF THE POISONOUS TREE DOCTRINE

(State the Rule)

Answer 50

Rule: Evidence directly derived from illegally obtained evidence is tainted and cannot be used against an accused in a criminal proceeding.

Note: Witnesses found as a result of illegally obtained evidence will not be prevented from testifying if the witness freely desires to do so.

Question 51

LIST 4 EXCEPTIONS TO FRUIT OF THE POISONOUS TREE DOCTRINE

Answer 51

1) Independent Source
2) Inevitable Discovery
3) Attenuation
4) Good Faith Doctrine

Question 52

INDEPENDENT SOURCE

(State the Rule)

Answer 52

Rule: Evidence derived from improperly obtained evidence is admissible as an exception to the Fruit of the Poisonous Tree Doctrine if the evidence:

1) Was obtained from a source independent of the illegality, AND
2) The independent source was not tainted by the improper conduct.

Question 53

INEVITABLE DISCOVERY

(State the Rule)

Answer 53

Rule: Evidence derived from improperly obtained evidence is admissible as an exception to the Fruit of the Poisonous Tree Doctrine if the evidence would have been discovered through proper investigative techniques that the police were using at the time.

Question 54

ATTENUATION

(State the Rule)

Answer 54

Rule: Evidence derived from improperly obtained evidence is admissible as an exception to the Fruit of the Poisonous Tree Doctrine if a sufficient amount of time has passed to break the chain of causation between the improper conduct and the obtaining of derivative evidence.

Note: A defendant’s act of free will (e.g., voluntarily returning to a stationhouse after being released to provide a statement to the police) also serves to break the chain of causation.

Question 55

GOOD FAITH DOCTRINE

(State the Rule)

Answer 55

Rule: Evidence derived from an improperly issued warrant is admissible as an exception to the Fruit of the Poisonous Tree Doctrine if the officer executing the warrant reasonably believed the warrant was valid.

Note: An officer’s reliance on the validity of a warrant will be reasonable if:

1) The issuing magistrate was neutral,
2) The supporting affidavit contained sufficient indicia of reliability,
3) The oath or affirmation on which the warrant was based was provided by a person who believed his statements to be true, AND
4) The warrant described with particularity the area to be searched and the items or persons to be seized.

Question 56

SUPPRESSION HEARING

(Define)

Answer 56

Definition: A suppression hearing is a motion hearing during which the court determines whether evidence was obtained improperly and should be excluded from trial.

Note: The prosecution bears the burden of proving by a preponderance of the evidence that the evidence was collected without violating the defendant’s constitutional rights.

Question 57

HARMLESS ERROR STANDARD

(State the Rule)

Answer 57

Rule: Under the harmless error standard, any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

Note:

1) Admission at trial of improperly obtained evidence will not require reversal of a conviction unless the evidence actually prejudiced the defendant.
2) A defendant is prejudiced if the evidence had substantial and injurious effect or influence in determining the jury’s verdict.

Question 58

STEP 4:

PROCEDURAL ISSUES INDICTMENT BY GRAND JURY

(State the Rule)

Answer 58

Rule: Suspects in felony cases have a 5th Amendment right to have the case against them presented to a grand jury for indictment.

Note:

1) The 5th Amendment right to a grand jury has not been incorporated through the 14th Amendment. However, many states have laws that provide for indictment by grand jury.
2) If an indictment is handed down by the grand jury, the prosecutor may narrow the scope of the indictment but may not add additional charges.
3) The right to indictment by grand jury does not apply to misdemeanor crimes.

Question 59

WHAT ARE THE CHARACTERISTICS OF A GRAND JURY PROCEEDING?

Answer 59

Rule: The following are characteristics of grand jury proceedings:

1. The grand jury must have 16 to 23 members,
2. At least 12 jurors must agree to indict,
3. The proceedings are secret,
4. The defendant does not have the right to be present,
5. The defendant cannot introduce evidence or witnesses,
6. The defendant nor witnesses have a right to counsel, AND
7. The indictment can be based upon improperly obtained evidence.

Question 60

CHALLENGING GRAND JURY PROCEEDINGS

(State the Rule)

Answer 60

Rule: A defendant can challenge the grand jury on the grounds that the jury pool was improperly drawn (e.g., in a racially discriminatory manner) or that an individual juror was not legally qualified.

Note:

1) If a racially discriminatory selection procedure is demonstrated, the grand jury’s indictment and subsequent conviction of the defendant will be dismissed.
2) If an individual juror is shown to be not legally qualified, the indictment will be dismissed unless at least 12 qualified jurors concurred in the indictment.

Question 61

WHAT MUST BE CONTAINED IN AN INDICTMENT?

Answer 61

Rule: The 6th Amendment requires that an indictment fully and specifically allege all of the elements necessary to constitute the crime charged.

Note:

1) The prosecutor cannot merely cite the words of the criminal statute unless the words fully, directly, expressly and without any ambiguity set forth all the necessary elements.
2) Defendants cannot not be tried, convicted, or sentenced for a crime that materially varies from the crime as set forth in the indictment.
3) If the indictment is determined to be legally insufficient on appeal, the defendant’s conviction will be overturned.

Question 62

BAIL

(Define & State the Rule)

Answer 62

Definition: Bail is the money or real property a defendant may be required to post as collateral in order to be released from custody pending trial.

Rule: The 8th Amendment prohibits excessive bail, but does not guarantee a right to bail.

Note: Bail may be denied if the defendant is a threat to society or a flight risk.

Question 63

DISCOVERY:

WHAT EVIDENCE MUST BE PROVIDED TO THE DEFENDANT UPON REQUEST?

Answer 63

Rule: Upon request by the defendant, the prosecution must disclose:

1) Any oral statements the defendant made in response to an official investigation that the prosecution intends to use at trial,
2) All relevant written or recorded statements made by the defendant,
3) All statements made by an organizational defendant’s agents that are legally attributable to the defendant,
4) A summary of the testimony of any experts the prosecution intends to call in its case-in-chief,
5) Reports of physical or mental examinations that the prosecution intends to use in its case-in-chief or that are material to the defense, AND
6) All documents or items that the prosecution intends to use in its case-in-chief. are material to the defense, or were previously in the defendant’s possession.

Note: The prosecution does not have to disclose statements made by potential government witnesses.

Question 64

DISCOVERY:

WHAT EVIDENCE MUST A PROSECUTOR PROVIDE REGARDLESS OF WHETHER IT IS REQUESTED BY A DEFENDANT?

Answer 64

Rule: Prosecutors must disclose exculpatory evidence that is:

1) In the government’s possession,
2) Favorable to the accused, AND
3) Material to either guilt or punishment.

Note:

1) Information that impacts the credibility of a witness is material and must be disclosed.
2) The ABA Model Rules place a stronger duty on prosecutors by requiring timely disclosure of all information (not just evidence) that could negate or mitigate the guilt of the accused.
3) The failure to disclose potentially exculpatory evidence will result in the dismissal of charges against the defendant if prejudice resulted from the failure to disclose.

Question 65

GUILTY PLEAS

(State the Rule)

Answer 65

Rule: A guilty plea must be voluntary, knowing and intelligent. Before accepting the plea, a court must inform the defendant of:

1) The nature of the charge against her,
2) The maximum and mandatory minimum penalties, AND
3) That a guilty plea is a waiver of the defendant’s constitutional rights against self-incrimination, to trial by jury, to confront witnesses, and to present evidence in her defense.

Note: The defendant need not be informed of:

1) Possible deportation consequences,
2) Collateral consequences, OR
3) Evidence that could be used to impeach a government witness.

Question 66

CAN A DEFENDANT CHALLENGE A GUILTY PLEA AFTER SENTENCING?

Answer 66

Rule: A guilty plea may only be challenged after sentencing by showing that the:

1) Plea was involuntary,
2) Prosecution failed to keep a plea bargain, OR
3) Court lacks jurisdiction.

Question 67

SPEEDY TRIAL

(State the Rule)

Answer 67

Rule: The 6th Amendment guarantees a defendant the right to a speedy trial after criminal charges have been filed. To determine whether a delay violates this right, courts look to:

1) The length of the delay,
2) The reason for the delay,
3) Whether the defendant asserted the right, AND
4) Whether the delay prejudiced the defendant.

Note:

1) The right to a speedy trial does not require a speedy investigation before charges are filed.
2) If criminal charges are dropped, the right to a speedy trial does not prevent the prosecution from refiling the charges at a later date.
3) The remedy for a violation of a defendant’s right to a speedy trial is dismissal of the case with prejudice.

Question 68

COMPETENCY TO STAND TRIAL

(State the Rule)

Answer 68

Rule: To be competent to stand trial, a defendant must have:

1) A rational and factual understanding of the nature of the charges against him, AND
2) A rational and factual understanding of the proceedings, AND
3) The capacity to consult with his lawyer to aid in his own defense.

Question 69

TRIAL BY JURY

(State the Rule)

Answer 69

Rule: A defendant has a right to trial by an impartial jury when charged with a crime for which the punishment is incarceration for more than six months.

Note:

1) The jury must be composed of at least six people.
2) The jury pool must represent a fair cross-section of the community.
3) Peremptory challenges cannot be used to exclude jurors based on their gender or race.
4) Jurors can be excused on the basis of racial bias.
5) Jurors can be excused on the basis of extreme views on the death penalty (never impose or always impose).

Question 70

CONFRONTING WITNESSES

(State the Rule)

Answer 70

Rule: The 6th Amendment guarantees defendants the right to:

1) Confront and cross-examine witnesses against them, AND
2) To present evidence and testimony in her own defense.

Note:

1) Testimonial out-of-court statements cannot be admitted if the:
a) Defendant did not have the opportunity to cross-examine the declarant, AND
b) Declarant is unavailable at trial.
2) Crime lab reports cannot be admitted into evidence unless the report author is available to testify at trial.
3) Physical evidence must be presented before the jury, and the defendant must have the opportunity to challenge its validity.

Question 71

EFFECTIVE ASSISTANCE OF COUNSEL

(State the Rule)

Answer 71

Rule: The 6th Amendment right to counsel guarantees the right to effective assistance of counsel for defendants charged with crimes punishable by incarceration. To demonstrate ineffective assistance of counsel, the defendant must prove:

1) The representation of counsel was ineffective, AND
2) Had counsel been effective, the outcome would have been different.

Note: The right to counsel includes the right to represent oneself at trial if the defendants capable of representing
herself effectively.

Question 72

DOUBLE JEOPARDY

(State the Rule)

Answer 72

Rule: The 5th Amendment prohibits a defendant from being prosecuted twice for the same offense once jeopardy has attached.

Note:

1) The time at which jeopardy attaches depends on whether the trial is a jury or bench trial:
a) Jury Trial: Jeopardy attaches at the swearing in of the jury.
b) Bench Trial: Jeopardy attaches when the first witness is sworn in.
2) Double jeopardy does not prevent the retrying of a defendant if a jury is unable to reach a verdict.

Question 73

CRUEL & UNUSUAL PUNISHMENT

(State the Rule)

Answer 73

Rule: The 8th Amendment prohibits the imposition of cruel and unusual punishment on individuals. Courts consider to be cruel and unusual punishment that:

1) By its severity is degrading to human dignity,
2) Is obviously inflicted in wholly arbitrary fashion,
3) Is clearly and totally rejected throughout society, AND
4) Is patently unnecessary.

Note:

1) Physical torture is banned as cruel and unusual punishment.
2) Ancient forms of punishment such as drawing and quartering, public dissecting, or burning alive are cruel and unusual punishment.
3) Mandatory life sentences without parole for possession of large quantities of narcotics are not cruel and unusual punishment.

Question 74

DEATH PENALTY

(State the Rule)

Answer 74

Rule: To constitutionally impose the death penalty, the jury must:

1) Be allowed to consider mitigating circumstances,
2) Have sufficient information to make the decision, AND
3) Have sufficiently clear guidance from the text of the law to determine if the death penalty is warranted.

Note:

1) Possible lesser included offenses cannot be removed entirely from the jury instructions.
2) Statements from the victim’s family may be heard by the jury.

Question 75

WHEN IS THE DEATH PENALTY CONSIDERED CRUEL & UNUSUAL PUNISHMENT?

Answer 75

Rule: The imposition of the death penalty is cruel and unusual when:

1. The penalty is automatically imposed without regard to mitigating circumstances,
2. The defendant is mentally retarded,
3. The defendant is insane at the time of execution,
4. The defendant was a minor at the time of the offense,
5. The defendant was guilty of the crime of rape only, OR
6. The defendant is guilty of felony murder but did kill, attempt to kill, or intend to kill the victim.