Criminal Procedure MBE

Question 1

General Principles

Answer 1

1. Standing—D must have standing to assert claim
2. Exclusionary rule
   * Prevents introduction at a subsequent criminal trial of evidence unlawfully seized
   * Does not apply to federal habeas corpus review, grand jury proceedings, preliminary/bail/sentencing hearings, proceedings to revoke parole, evidence used as impeachment evidence against the defendant, or civil proceedings
   * Suppression decisions made by a judge; factual findings are reviewed for clear error while findings of law are reviewed de novo
3. Government conduct—publicly paid police, private person directed by police, or deputized private police
4. Reasonable expectation of privacy (REP)—as to place searched or item seized

Question 2

Arrest

Answer 2

unreasonable seizure of persons

Question 3

Seizure

Answer 3

—when police, by means of physical force/show of authority, intend to terminate/restrain freedom of movement

• Totality of circumstances
  o If police intent to restrain is ambiguous, or
  o If D’s submission is only passive acquiescence,
  o Then a seizure occurs if totality of circumstances would lead reasonable innocent person to believe he is not free to leave

Question 4

Stop and Frisk

Answer 4

temporary detention that constitutes seizure if the officer, by means of physical force/show of authority, has in some way restrained (physical restraint or an order to stop) the liberty of a citizen

Question 5

Arrest Warrant

Answer 5

must be issued by detached/neutral magistrate upon finding of probable cause (PC) and describe with particularity the D and crime; deficient warrant does not invalidate arrest as long as there was PC (no warrant required for proper arrest based on PC)

Question 6

Search Warrant

Answer 6

—issued by detached/neutral magistrate upon finding of PC, supported by oath or affidavit, & must describe with particularity places to be searched and items to be seized (reasonable belief that contraband will be found)

Question 7

Facts supporting PC

Answer 7

o Officer’s personal observations

o Information from reliable, known informant or verified unknown informant

o Evidence seized during stop and based on reasonable suspicion, discovered in plain view, or during consensual search

Question 8

Particularity

Answer 8

o Must specify place to be searched and objects to be seized

o Can also refer to contraband as “other fruits, instrumentalities, or evidence of crime at this time unknown” and still be valid

Question 9

Knock & announce rule

Answer 9

o Police must generally announce purpose when executing a warrant (unless state allows exception for exigent circumstances)

o Violation does not trigger exclusionary rule

Question 10

Warrantless arrests

Answer 10

• Arrest warrant not needed in public place or for felony or misdemeanor in arresting party’s presence, but invalid arrest alone not a defense to crime charged (but will affect any seizure of evidence)
• In determining whether a crime has been committed, the question is whether an officer could conclude—considering all of the surrounding circumstances—that there was a substantial chance of criminal activity

Question 11

Search and seizure - government conduct

Answer 11

search must be by government employee or agent

Question 12

Reasonable expectation of privacy (REP) or physican intrusion on protected area

Answer 12

• Home, private room, or office—home and curtilage, motel rooms, and business premises are protected; use of drug-sniffing dog is a search if physically intrudes onto constitutionally protected property
• Luggage—REP for invasive searches but not for canine sniff
• Automobiles—need reasonable suspicion of law violation to effectuate a stop, and PC for pretextual stops when traffic law violated to investigate whether another law has been violated; fact that a person in lawful possession of a rental car is not listed on the rental agreement does not defeat his REP
• Open areas—outside curtilage – no reasonable (objective) expectation of privacy
• Odor from car—no REP
• Technological device
  o Attaching a tracking device to a person without consent is a search; collecting cellsite location information from a wireless carrier to track a person requires a warrant
  o Physically intruding on a suspect’s property to install a technological device may be a search
  o Use of sense-enhancing devices not used by general public is a search

Question 13

Search incident to lawful arrest (exception to search warrant requirement)

Answer 13

—must be reasonable in scope and incident to a lawful arrest

o Wingspan—includes contemporaneous search of person/immediate surrounding area including pockets/containers (does not include cell phone or laptop unless exigent circumstances exist)

o Home—a “protective sweep” is permissible, even without probable cause or reasonable suspicion; includes places immediately adjoining place of arrest in home from which an attack could be launched and in which a person might be hiding (adjacent rooms, closets, showers); the search area can be broadened if based on reasonable suspicion that confederates are hiding beyond these immediately adjacent areas

o Vehicle—justified if:
 Arrestee is within reaching distance of passenger compartment (weapons/evidence) during search, or
 It is reasonable that evidence of the offense of arrest might be in vehicle

Question 14

Exigent circumstances (exception to search warrant requirement)

Answer 14

o Totality of circumstances test
 Must have PC and exigent circumstances
 Police may not create the exigency by threats or conduct that violates the Fourth Amendment

o Hot pursuit—police in pursuit of a suspect can seize “mere” evidence (not fruits/instrumentalities of crime) from a private building if they have PC to believe the suspect committed a felony; may also act without warrant if they have PC that suspect committed a misdemeanor and the totality of the circumstances shows an emergency

o Emergency—reasonable apprehension that delay in getting warrant would result in immediate danger of evidence destruction, police/public safety or fleeing felon (judged by police officer’s objective reasonable belief)

Question 15

Stop and Frisk (exception to search warrant requirement)

Answer 15

o Stop—(Terry stop) reasonable suspicion (totality of circumstances), based on articulable facts that detainees involved in illegal activity, and is a limited/temporary intrusion on D’s freedom of movement

o Frisk
 An officer without probable cause may pat down a person’s outer clothing if the officer has reasonable suspicion that the suspect was/is involved in criminal activity and that the frisk is necessary for safety
 Under “plain feel” exception, if officer conducting a valid frisk feels an object whose identity is immediately obvious (i.e., PC of contraband) it can be seized

o Passenger compartment—permitted if police have reasonable belief suspect is dangerous and may get immediate control of weapons, and the search is limited to places where a weapon could be hidden

o Limitations—least intrusive means reasonably available to frisk for weapons only, but if suspicion becomes PC, then officer can make arrest and conduct a full search

Question 16

Automobile exception (exception to search warrant requirement)

Answer 16

can search any part of car (compartments, particular containers (including luggage), trunk, etc.) if PC that it contains contraband/evidence of crime; does not permit warrantless entry of home or curtilage in order to search a vehicle therein

Question 17

Plain-view Doctrine (exception to search warrant requirement)

Answer 17

o In public view—no REP

o In private view—officer on premises for lawful purpose, incriminating nature of item immediately apparent, officer has lawful access to the item

Question 18

Consent (exception to search warrant requirement)

Answer 18

o Voluntary—no threats of harm, compulsion, or false assertion of lawful authority (totality of circumstances); but government agent may pretend to be someone else

o Third party—can consent to own property search, but D’s property only if agency relationship to D or D assumes the risk of search when giving right to third party to consent to search

Question 19

Warrant authorizing wiretapping

Answer 19

o Limited period of time

o PC that a specific crime has been or is about to be committed

o Identify persons and describe particular conversations to be tapped

o When to terminate tapping

o Reveal intercepted conversation to court

Question 20

Standing to object

Answer 20

D must show a legitimate expectation of privacy with regard to the search

Question 21

Exclusionary Rule - Fruit of the Poisonous Tree

Answer 21

—applies not only to evidence initially seized as a result of government illegality but also to secondary derivative evidence resulting from primary taint

Question 22

Exceptions to Exclusionary Rule (7)

Answer 22

o Inevitable discovery—in same condition through lawful means

o Independent source—unrelated to tainted evidence

o Attenuation—passage of time and/or intervening events may purge primary taint

o Good faith
 Applies to police relying in objective GF on either facially valid warrant later found invalid or existing law later held unconstitutional
 Does not apply if no reasonable officer would rely on affidavit underlying warrant, warrant defective on its face, warrant obtained by fraud, magistrate wholly abandons judicial role, or warrant improperly executed

o Isolated police negligence—not enough to trigger the exclusionary rule; must be sufficiently deliberate that exclusion can meaningfully deter it

o Knock and announce—exclusionary rule doesn’t apply when police fail to knock and announce their presence

o In-court ID—not fruit of an unlawful detention

• Harmless error—court can refuse to order new trial if error harmless beyond reasonable doubt, i.e., illegal evidence did not contribute to result

Question 23

Privilege against compulsory self-incrimination

Answer 23

—no person shall be compelled in criminal case to testify against himself; applies to states through the Fourteenth Amendment

2. Testimonial evidence only—nontestimonial physical evidence (blood, urine, breathalyzer, etc.) not protected
3. Proceedings—applies to civil/criminal, formal/informal proceedings if answers provide reasonable possibility of incriminating D in future criminal proceeding
4. Waiving privilege—D waives by taking the stand and answering prosecution’s questions; witness waives it by disclosing self-incriminating information in response to a specific question
5. Immunity—prosecution may compel incriminating testimony if it grants immunity

• Transactional—blanket or total immunity, fully protects a witness from future prosecution for crimes related to testimony
• Use and derivative-use—only precludes use of witness’s own testimony
• Immunity precludes use by another U.S. jurisdiction to prosecute the defendant

Question 24

5A in police interrogation context

Answer 24

any incriminating statement obtained as result of custodial interrogation may not be used against suspect at subsequent trial unless police inform subject of Miranda rights

Question 25

Miranda - Custodial

Answer 25

o Substantial seizure, i.e., formal arrest or restraint of freedom equivalent to arrest; would reasonable person believe he could leave?

o Questioning at a police station is not automatically custodial

Question 26

Miranda - Interrogation

Answer 26

o Questioning and also words/actions reasonably likely to elicit incriminating response

o Voluntary statements not protected

o Confessions involuntary only if coerced by police (totality of circumstances)

Question 27

Miranda - Content/Timing

Answer 27

warning must be given before interrogation begins (or given again if stopped for long time then resumed), need not be verbatim, but must inform suspect of right to remain silent, any statement can be used in court, right to an attorney (or one will be appointed)

Question 28

Miranda - Right to Counsel

Answer 28

suspect must make a specific, unambiguous statement asserting his desire to have counsel present, and once invoked, all interrogation must stop until counsel is present, unless suspect voluntarily initiates communication with police (including spontaneous statements) or 14-day or more break in custody and fresh Miranda warnings given

Question 29

Miranda - right to silence

Answer 29

suspect must make a specific, unambiguous statement asserting his desire to remain silent (mere silence is not enough); interrogator must scrupulously honor right if invoked, but if suspect indicates desire to speak, subsequent interrogation lawful if suspect not coerced, and Miranda warnings must be given again

Question 30

Miranda - Exceptions

Answer 30

o Public safety

o Routine booking questions

o Undercover police

Question 31

Miranda - Waiver

Answer 31

—suspect may waive right, burden is on government to prove by a preponderance of evidence that waiver was made knowingly and voluntarily (silence insufficient)

Question 32

Fruits of a tainted confession

Answer 32

1. Miranda violation doesn’t automatically result in suppression of incriminating statements made after second warnings given
2. But, second confession inadmissible if circumstances make it clear police approach was intentional attempt to circumvent Miranda

Question 33

6A

Answer 33

right to jury, public trial, confront witnesses against him, cross-examine witnesses, be present at his own trial, and assistance of counsel for his defense

Question 34

6A Right to Counsel

Answer 34

1. Types of proceedings—any case in which actual/suspended incarceration is imposed
2. Applicability—automatically applies at all critical stages of prosecution after formal proceedings begin, and right automatically attaches when formal judicial proceedings have begun (e.g., post-arrest initial appearance before a judicial officer, formal charge, preliminary hearing, indictment, information, or arraignment); no right to counsel at postconviction proceedings (e.g., parole, probation)

Question 35

6A RTC - Waiver

Answer 35

must be voluntary, knowing, and intelligent; receiving a Miranda warning sufficiently apprises a person of his Sixth Amendment rights and the consequences of waiving those rights (even though Miranda rights arise from the Fifth Amendment)

• Subsequent waivers
  o If an accused has not actually asserted his right to counsel (e.g., court automatically appoints counsel), there is no presumption that any subsequent waiver of the right to counsel will be involuntary; if an accused actually asserts the right to counsel, then subsequent waivers are presumed involuntary, but only in a custodial setting
  o Even after Sixth Amendment rights attach, police may initiate non-custodial interactions with the accused outside the presence of his lawyer, and there will be no presumption that any knowing waiver of the right to have counsel present for the interaction is involuntary
• Right to proceed pro se—D can refuse counsel and proceed pro se at trial; court should warn D of dangers and disadvantages, and may appoint “standby counsel;” D may be competent to stand trial yet incompetent to represent himself

Question 36

6A RTC - Withholding information

Answer 36

—police have no obligation to inform D that counsel has been trying to reach him unless Sixth Amendment has attached

Question 37

Offense-specific

Answer 37

1. Blockburger test—two different crimes in one criminal transaction deemed to be same offense unless each offense requires proof of an element that the other does not
2. Miranda comparison—Unlike Miranda, presence of counsel only applies to interrogations about offense charged, and police must deliberately elicit the incriminating statement to create a violation; like Miranda, D may make knowing/voluntary waiver of right

Question 38

Remedies for denial of counsel

Answer 38

1. Effect on conviction—D’s conviction is automatically reversed even without specific showing of unfairness
2. Effect on guilty plea—D has right to withdraw it and it can’t be used against him as an admission
3. Nontrial proceeding—harmless-error analysis
4. Defendant’s statements to informants—post-indictment statement to informant where situation is likely to induce D to incriminate himself without counsel is inadmissible (but police may place an informant in D’s cell to listen without questioning D)
5. Exclusionary rule
   * Fruit of the poisonous tree—the doctrine applies to statements and physical evidence obtained as result of violation; such evidence will be inadmissible
   * Impeachment—incriminating evidence obtained in violation of Sixth Amendment may be used for impeachment

Question 39

Ineffective assistance of counsel

Answer 39

1. Reasonable competence presumed—to prove ineffective, claimant must show:
   * Counsel’s representation fell below objective standard of reasonableness; and
   * Counsel’s deficient performance prejudiced D, resulting in the reasonable probability that the outcome would have been different
   o Mere inexperience, strategy, or failure to produce mitigating evidence insufficient
   o Prejudice presumed if deficient performance costs D an appeal, even if D signed a waiver of his right to appeal as part of a guilty plea, or if D was not informed that a plea carried a risk of deportation
2. Conflict of interest—representation of Ds with conflicting interests may amount to ineffective assistance of counsel; must show actual conflict and an adverse effect on counsel’s performance
   * Actual conflict—occurs when a court determines that the defense attorney is subject to an obligation/unique personal interest that, if followed, would lead her to adopt a strategy other than that most favorable to the D
   * Adverse impact—occurs when a plausible alternative strategy/tactic might have been pursued but was inherently in conflict with, or not undertaken, due to the attorney’s other loyalties or interests

Question 40

Eyewitness ID Procedures

Answer 40

1. Types
   * Corporeal—in person (e.g., lineups)
   * Non-corporeal—not in person (e.g., photo arrays)
2. Sixth Amendment right to counsel at lineups
   * Sixth Amendment right to counsel at in-person post-indictment lineup, but not at noncorporeal
   * Inadmissible if violated but witness can ID the D at trial if ID has independent reliability
3. Impermissibly suggestive identification procedures—due process
   * Two-prong test
   o D must prove ID was impermissibly suggestive; and
   o Substantial likelihood of misidentification
   o Prosecution may prove that it was nonetheless reliable (opportunity to view, degree of attention, accuracy of witness’s description, level of certainty, length of time)
   * Remedy—suppression hearing (usually outside jury’s presence) to determine admissibility; finding of impermissibly suggestive procedures will result in suppression

Question 41

Preliminary Proceedings

Answer 41

1. Probable cause to detain
   * Must be held within 48 hours of arrest to determine PC
   * Fourth Amendment guarantees D right to be released if no PC
   * No remedy if detention is unlawful (other than exclusion of evidence)
2. Initial appearance—judge advises D of the charges and his rights and appoints counsel if the defendant is indigent; judge may also decide conditions of bail and accept a plea

Question 42

Right to Bail

Answer 42

no constitutional right to bail, but denial of or excessive bail must comply with Due Process Clause

Question 43

Competency

Answer 43

—D must comprehend nature of proceedings against him and have ability to consult with lawyer with reasonable degree of rational understanding to be competent to stand trial

Question 44

Grand Juries

Answer 44

D has no right to present/confront witnesses or introduce evidence, and no dismissal due to procedural defect unless substantial impact on decision to indict; intentional racial discrimination in selection of grand jurors results in overturn of conviction

Question 45

State’s duty to disclose

Answer 45

1. Affirmative duty to disclose to D any material evidence favorable to D and relevant to prosecution’s case-in-chief that would negate guilt or diminish culpability/punishment
2. Failure is grounds for reversal if D shows:
   * The evidence is favorable to the defendant, and
   * The failure to disclose caused prejudice against the defendant

Question 46

Jury Trial

Answer 46

1. Federal—Sixth Amendment right to jury trial
2. State—Under Fourteenth Amendment, D has a right to jury trial in criminal cases for nonpetty offenses
3. Presence—D has a right (with some exceptions) to be present at initial arraignments, every trial stage, and sentencing
4. Length—right attaches for non-petty offenses (authorized sentence of more than six months imprisonment) regardless of actual penalty imposed
5. Waiver—D can waive right to jury trial and opt for trial by judge by obtaining court’s approval, and freely/intelligently entering a voluntary waiver

Question 47

Jury Rules

Answer 47

• Fed R. Crim. Pro. requires 12 members unless waived in writing and approved by court, but a verdict by 11 is permitted if the 12th juror is excused for good cause after deliberations begin
• A jury of fewer than six members is a denial of due process
• A unanimous verdict is constitutionally required of both federal and state juries, regardless of the number of jurors
• Cross section—jury pool must be a representative cross section of the community, but actual jury selected need not be
• Standing—D can challenge selection process without showing of actual bias
• Prima facie case—for absence of representative cross section:
  o Distinctive group excluded
  o Group not fairly represented in jury pool, and
  o Underrepresentation resulted from systematic exclusion of group
• Neutral principles—in response to claim of intentional racial discrimination in jury selection, state can use neutral/nonracial principles and must prove absence of discriminatory intent

Question 48

Peremptory Challenge

Answer 48

o Discriminatory use—Fourteenth Amendment prohibits challenges solely based on race/ethnicity/gender
 Moving party must establish prima facie case of discrimination
 Party who exercised the peremptory challenge must provide race-neutral explanation
 Moving party carries burden of proving other party’s reason was pretextual

o Loss of challenge—doesn’t violate right to impartial jury

o Harmless error—state can choose between harmless-error review or automatic reversal when judge in good faith erroneously denies D’s peremptory challenge

Question 49

Impartiality

Answer 49

o Accused entitled to trial by impartial jury, and claims of juror bias/misconduct subject to harmless-error rule

o Race—court must allow D to question potential jury members’ views on race when racial prejudice involved in case or when race is inextricably bound up in the case

o Capital punishment—jurors opposed to death penalty can be removed for cause if opposition substantially impairs duties during sentencing

Question 50

Sentencing Enhancement

Answer 50

enhancement of sentence by judge for reasons other than D’s prior conviction absent jury determination of existence of additional facts violates D’s right to a jury trial

Question 51

Guilty Pleas

Answer 51

1. Knowing and voluntary
   * Must be intelligent and voluntary, and made in presence of judge
   * Judge must advise D and determine that plea not due to force or promises other than in plea agreement
   * Under federal rules, judge must determine there is some factual basis for the plea
2. Right to counsel—D has a right to counsel when entering a plea
3. Plea bargain
   * D has no constitutional right to a plea bargain
   * Plea made in response to prosecutor’s threat to bring more serious charges does not violate Due Process Clause
   * Prosecutor not required to disclose impeachment information or information related to affirmative defense
   * Enforcement
   o Plea bargain is enforceable against prosecutor and D, but not the judge (judge can reject plea)
   o If prosecutor violates bargain, judge can decide whether to order specific performance of bargain or whether D can withdraw plea
   o If D violates bargain, prosecutor can have sentence vacated and reinstate original charges
4. Effect on D’s rights—D can attack plea for ineffective assistance of counsel, lack of jurisdiction, or violation of due process

Question 52

Speedy trial

Answer 52

1. Due Process Clause—protects pre-accusation delay and SoL is primary safeguard
2. Sixth Amendment—protects post-accusation delay and time period starts at time of arrest/formal charge
3. Balancing test—length and reason for delay, D’s assertion of right, and prejudice to D
4. Remedy—dismissal of charges with prejudice

Question 53

Fair trial

Answer 53

1. Impartial judge—no actual/apparent bias permitted
2. Prosecutor—cannot misstate law/fact, talk to D without counsel present, express opinions about D’s guilt/innocence, make improper remarks about D, or comment on D’s failure to testify

Question 54

Right to Confrontation

Answer 54

1. Trial—accused has right to encounter and cross-examine adverse witnesses and be present at any stage of trial
2. Face-to-face—not absolute right and may be prevented for public policy reasons
3. Confrontation Clause and the hearsay rule
   * “Testimonial” out-of-court statements by witnesses generally are barred under the Confrontation Clause, unless (i) the witnesses are unavailable and the defendant had a prior opportunity to cross-examine those witnesses, or (ii) if the witness is unavailable because the defendant acted with a purpose to prevent the witness from testifying
   * Out-of-court testimonial statements are not barred by the Confrontation Clause when they are used for a purpose other than establishing the truth of the matter asserted
   * Testimonial statements—the declarant would reasonably expect it to be used in a prosecution
   * Nontestimonial statements—statements made for the primary purpose of assisting the police in the investigation of an ongoing emergency are not testimonial
4. Admission of confession (Bruton rule)—by non-testifying co-D at joint trial against D violates Sixth Amen

Question 55

Due process

Answer 55

1. Permissive presumption—regarding an element of an offense is not a due-process violation unless it is irrational
2. Mandatory presumption—per se violation
3. Reasonable doubt—prosecution must prove all elements beyond a reasonable doubt; state may place burden of proving an affirmative defense (e.g., insanity, self-defense, entrapment, or duress) on D; court may grant judgment of acquittal if there is insufficient evidence for a jury reasonably to find D guilty

Question 56

Sentencing

Answer 56

1. Applicable rights include right to counsel, confrontation, and cross-examination
2. Any fact (other than prior conviction) that can be used to increase statutorily prescribed maximum must be charged in indictment, submitted to jury, and established beyond a reasonable doubt

Question 57

Cruel and unusual punishment (8A)

Answer 57

1. Non-death penalty—prisoner must show prison officials had actual knowledge of substantial risk to prisoners or serious injury, or sentence grossly disproportionate to crime
2. Capital punishment—can only be imposed under statute that provides clear/objective standards, specific/detailed guidance, and opportunity for rational review of process

Question 58

Double jeopardy (5A)

Answer 58

protects against second prosecution for same offense after acquittal/conviction and against multiple punishments for the same offense

1. Same offense—Blockburger test applied if D’s conduct can be prosecuted as two or more crimes so it generally bars successive prosecutions for greater/lesser included offenses unless jeopardy attaches to lesser included offense before event necessary for greater offense
2. Attachment—when jury is impaneled/sworn in or when first witness is sworn in for bench trial
3. Different jurisdictions—D can be charged/convicted in federal and state court
4. Civil actions—not precluded by criminal punishment for same conduct
5. Guilty plea—not automatically waived
6. Collateral estoppel—applies when earlier decision must have necessarily determined issue on which collateral estoppel is sought by D

Question 59

Appeal

Answer 59

—right to appeal is not guaranteed by Constitution

1. First appeal as of right—D is guaranteed equal protection and right to counsel (but an attorney may withdraw and there is no right to self-representation)
2. Discretionary appeal—indigent D does not have right to appointment of counsel unless conviction was based on a guilty or nolo contendere plea
3. Errors
   * Generally must be timely preserved for consideration on appeal
   * Harmless error (an error that does not affect substantial rights)—will not serve as grounds for reversal
   * Plain error—D who failed to preserve claim of error is entitled to appellate relief when: (i) the district court committed error under the law in effect at the time the appeal is heard; (ii) the error is obvious under that law; and (iii) the error affected the defendant’s substantial rights

Question 60

Convictions

Answer 60

—D can attack conviction after unsuccessful appeal under writ of habeas corpus (civil action, so standard is preponderance of the evidence)

1. The court will apply two tests: (i) the unlawful detention had a “substantial and injurious” effect/influence on the verdict, and (ii) court’s decision was contrary to law or based on an unreasonable determination of facts