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Bar Exam > Criminal Procedure Rules > Flashcards

Criminal Procedure Rules Flashcards

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1
Q

Seizure

A
  • any exercise of control by a government agent over a person or thing is a seizure
  • governmental seizures of persons, including arrests, are seizures under the Fourth Amendment
  • Occurs when, under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter
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2
Q

Arrests

A
  • Occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation
  • Must be based on probable cause (totality of the circumstances)
  • Warrant not required before arresting a person in a public place
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3
Q

Terry Stops

A
  • the police have the authority to briefly detain a person even if they lack probable cause to arrest.
  • If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts.
  • If they have suspicion of a weapon can frisk
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4
Q

Reasonable Suspicion

A
  • Reasonable suspicion is more than just vague suspicion but is less than probable cause. Depends on the totality of the circumstances.
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5
Q

Duration and Scope of Stop

A
  • Not subject to a specific time limit. Must act in a diligent and reasonable manner in confirming or dispelling their suspicions
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6
Q

Automobile Stops

A
  • Police can stop if they have reasonable suspicion a law has been violated
  • Dog sniff around the car not a search (can’t use outside of a home)
  • Cops mistake of law does not invalidate a seizure as long as mistake was reasonable
  • Can seize driver and passengers
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7
Q

Four Steps to Analyzing Fourth Amendment Question

A
  1. Whether there is governmental conduct?
  2. Does the person suing have standing
  3. Was there a valid warrant?
  4. If no warrant, is there a valid exception to the warrant requirement
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8
Q

Governmental Conduct

A
  • Fourth Amendment only protects against governmental conduct (police)
  • Does not apply to campus PD, security guards, etc.
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9
Q

Reasonable Expectation of Privacy

A
  • Two ways to implicate fourth amendment rights: (1) search or seizure by a government agent of a protected area in which the individual had a reasonable expectation of privacy; or (2) physical intrusion by the government into a constitutionally protected area to obtain information
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10
Q

Standing

A
  • Person must have their own reasonable expectation of privacy with respect to the place searched or the item seized
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11
Q

Automatic expectation of privacy

A
  • The person owns or has a right to possession of the place searched
  • The place searched was in fact their home, whether or not they owned or had a right to possession of it; or
  • the person was an overnight guest of the owner of the place searched
  • Sometimes if the person owns the property seized, and they have a reasonable expectation of privacy in the item or area searched
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12
Q

Things Held Out to the Public

A
  • No reasonable expectation of privacy in objects held out to the public.
  • Info in the hands of third parties
  • Person does have a reasonable expectation of privacy in their cell-phone location info even though in hands of third parties
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13
Q

List of Things Held Out to the Public

A
  • the sound of your voice
  • the style of your handwriting
  • the paint on the outside of your car
  • account records held by a bank
  • the location of your car on a public street or in a driveway
  • anything that can be seen across the open fields
  • anything that can be seen from flying over public airspace
  • the odors emanating from your luggage or car; and
  • garbage set out on the curb for collection (has to be on the curb!)
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14
Q

Requirements for a Warrant

A
  • Probable Cause
  • Particularity
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15
Q

Probable Cause for Warrant

A
  • A warrant will be issued only if there is probable cause to believe that seizable evidence will be found or person or premises at the time the warrant is executed
  • Affidavit submitted to magistrate who issues a warrant
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16
Q

Affidavit for Warrant

A
  • If based on informer’s tip then must meet totality of the circumstances test
  • Affidavit will be held invalid if: - A false statement was included in the affidavit by the offiver, the officer intentionally or recklessly included the false statement, the statement was material to the finding of probable cause
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17
Q

Particularity

A
  • Warrant must describe with particularity the place to be searched and the items to be seized
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18
Q

Execution of Warrant

A
  • Only the police may execute a warrant and must be executed without unreasonable delay.
  • Police must knock and announce unless unreasonable
  • Cannot be accompanied by third parties unless they are present to identify stolen property
  • Scope limited to what is reasonably necessary to discover items described in warrant
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19
Q

Search of Persons with Premises Search Warrants

A
  • A warrant to search for contraband authorizes the police to detain occupants but it does not authorize for them to search individuals if not mentioned in the warrant
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20
Q

Exception: Search Incident to Constitutional Arrest

A
  • A constitutional arrest (based on probable cause), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence
  • Can do a sweep if they believe accomplices may be present
  • Search must be at the same time as arrest, but automobiles may be searched after they already slid
  • If an arrest is unconstitutional, any search is therefore unconstitutional
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21
Q

Search Incident Continued (Scope, Auto, Tech, Impound)

A
  • The person and the areas within the persons wingspan may be searched
  • Police may search passenger compartment (not trunk) only if at the time of the search: the arrestee is unsecured and may still gain access to the interior of the vehicle; or the police reasonably believe that evidence of the offense for which the parson was arrested can be found in the car
  • Police may make inventory search of belongings and impounded vehicles
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22
Q

Technology and Other new things balancing test:

A
  • For new things courts will balance the degree to which the search incident to arrest intrudes on privacy against the degree to which the search is needed to promote legitimate governmental interests
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23
Q

Automobile Exception

A
  • If the police have probable cause to believe that a vehicle contains things about a crime, they can search the whole vehicle.
  • If vehicle is in the driveway, need a warrant
  • Search can extend to packages belonging to anyone in the cause
  • If probable cause for a specific container (luggage), can only search the luggage
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24
Q

Plain View Exception

A
  • Police may make a warrantless seizure when they are legitimately on the premises, discover evidence of crime or contraband, see evidence in plain view, and have probable cause that the item is evidence
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25
Q

Consent Exception

A
  • A warrantless search is valid if the police have a voluntary consent
  • Any person with an apparent equal right to use or occupy the property may consent to a search.
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26
Q

Stop-And-Frisk

A
  • A terry stop and frisk
  • A police officer may stop a person without probable cause for arrest if they have an articulable and reasonable suspicion of criminal activity
  • Can require to state their name and can frisk if they believe they may be armed
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27
Q

Scope of Frisk

A
  • Limited to a patdown of outer clothes, unless the officer has specific info of where the weapon is hidden
  • Can seize any evidence that by plain feel that reasonably believe is a weapon or contraband
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28
Q

Hot Pursuit Exception

A

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling
- Have to be within 15 minutes

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29
Q

Evanescent Evidence Exception

A
  • If police believe evidence might disappear quickly if they took time to get a warrant they can gather the evidence. (scraping under someone’s fingernails)
30
Q

Emergency-Aid Exception

A
  • A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public
31
Q

Warrant Not Required (Public School)

A
  • a school search will be held to be reasonable only if: - it offers a moderate chance of finding evidence of wrongdoing, the measures adopted to carry out the search are reasonably related to the objectives of the search; and - the search is not excessively intrusive in light of the age and sex of the student and nature of the infraction
32
Q

Warrant not Required

A
  • Administrative searches to seize spoiled food
  • business within a highly regulated industry
  • inventory search of arrestees or their vehicles
  • searches of prisoners
  • searches of airline passengers, parolees, government employees work stations, drug test of railroad employees, persons seeking customs employment, public school students in extracurriculars
33
Q

Shock Conscience

A
  • Evidence obtained by torture is inadmissible under the Due Process Clause.
34
Q

Fourteenth Amendment Voluntary Confession

A

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary
- If involuntary confession is admitted into evidence, the conviction will not be overturned if there is overwhelming evidence of guilt

35
Q

Sixth Amendment Right to Counsel

A
  • Guarantees the right to assistance of counsel in criminal proceedings after the judicial proceedings have begun.
  • Prohibits incriminating statements to be taken after the D has been charged unless the right was waived
  • Can be waived
36
Q

Stages at which Sixth Amendment is Applicable

A
  • Post-Indictment Interrogation, whether or not custodial
  • Prelim hearings to determine prob. cause to prosecute
  • Arraignment
  • Post-charge lineups
  • Guilty plea and sentencing
  • Felony trials
  • Misdemeanor trials when imprisonment is actually imposed
  • overnight recesses during trial
  • appeals as a matter of right
  • appeals of guilty pleas
37
Q

Stages which sixth amendment not applicable

A
  • Blood sampling
  • Taking of handwriting or voice exemplars
  • Precharge lineups
  • Photo ids
  • Prelim hearings to determine prob. cause to detain
  • Brief recesses during D’s testimony at trial
  • Discretionary appeals
  • Parole and probation revocation proceedings
  • Post-conviction proceedings
38
Q

Sixth Amendment Different Offenses

A
  • Only have rights for the charge that you are being held on
  • the D may be questioned regarding unrelated, uncharged offenses without violation of sixth amendment
39
Q

Remedy of Violation

A
  • Harmless error rule applies unless entitled to a lawyer at trial and weren’t provided one then the conviction will automatically be reversed
  • Statement can still be used for impeachment
40
Q

Miranda Warning (Fifth Amendment)

A
  • Required when a suspect is in a custodial interrogation
  • Person must be informed prior to interrogation that: (1) right to remain silent; (2) anything the person says can be used against them in court, (3) the person has the right to presence of an attorney, and (4) if the person cannot afford an attorney, one will be appointed for them if they so desire
41
Q

When Miranda is Required

A
  • Anyone in custody of the government and accused of a crime
  • Inapplicable at grand jury hearings
42
Q

Determining Custody for Miranda

A
  • Whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave
  • whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue
43
Q

Interrogation Requirement

A
  • Includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee
  • not required for spontaneous statements
44
Q

Detainee Options after Receiving

A
  • Do nothing
  • Waive Rights
  • Invocation of Right to Remain Silent
  • Invocation of Right to Counsel
45
Q

Invocation of Right to Remain Silent

A
  • Indication must be explicit, unambiguous, and unequivocal
  • If indicated, the police must scrupulously honor this request.
  • Police allowed to reinitiate questioning when the police waited a significant amount of time, if re-mirandized and limited to a crime not the subject of the earlier questioning
46
Q

Invocation of Right to Counsel

A
  • Must be unambiguously indicated
  • All questions must cease until counsel has been provided unless detainee waives the right to counsel or they have been released and its been two weeks
47
Q

Effect of Violation of Miranda

A
  • Statements may be used for impeachment
  • If question before miranda, then get a confession after miranda, then confession is inadmissible unless proven to be valid
  • If police fail to give miranda and detainee gives nontestimonial evidence, evidence will be suppressed if the failure was purposeful
48
Q

Public Safety Exception to Miranda

A
  • Supreme Court allows interrogation without Miranda when it was reasonably prompted by a concern for public safety (to find a hidden gun)
49
Q

Pretrial ID Due Process Standard

A

A D can attach an ID as denying due process if the identification if unnecessarily suggestive and there is a substantial likelihood of misidentification

50
Q

Fruit of the Poisonous Tree Doctrine

A

Evidence obtained in violation of a D’s Fourth, fifth, or sixth amendment rights are prohibited. Also, any evidence that comes from exploiting the illegal obtained evidence will be inadmissible unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct

51
Q

Exceptions to FOTP Doctrine

A
  • Evidence derived from statements obtained in violation of Miranda
  • Evidence obtained from a source independent of the original illegality
  • Evidence for which the connection between police misconduct and the evidence is remote or there has been an intervening circumstance
  • Inevitable Discovery
  • Violations of knock and announce
52
Q

Attenuation

A
  • D is illegally arrested and released and later comes back to confess; Police make an unlawful stop, but there is an arrest warrant. These things are valid.
53
Q

Breaking the chain that makes evidence admissible. Three I’s

A
  • Intervening act of free will
  • Independent source
  • Inevitable Discovery
54
Q

Exclusionary Rule Limitations

A
  • Does not apply to grand juries unless illegal wiretapping
  • Good faith reliance on law by police
55
Q

Exceptions to a good faith reliance on a warrant

A
  • The affidavit underlying the warrant is lacking in probable cause or particularity such that no reasonable officer would rely
  • police lied to or misled the magistrate when seeking the warrant
  • magistrate is biased and abandoned neutrality
56
Q

Use of Excluded Evidence for Impeachment Purpose

A
  • Voluntary confessions in violation of miranda
  • evidence obtained from an illegal search can be used by the prosecution to impeach D’s statements but not others
57
Q

Harmless Error Test

A

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was harmless. Conviction will stand if would have happened regardless

58
Q

Grand Jury Rules

A
  • No right to counsel/miranda warnings
  • No right to have evidence excluded
  • No right to challenge subpoena
  • Cannot exclude members of a minority group or else the indictment will be reversed
59
Q

Standard for Determining Whether Right to A Speedy Trial has been Violated (LRAP)

A
  • Length of the delay
  • Reason for the delay
  • Whether D asserted their right
  • Prejudice to the D

Remedy is dismissal w/ prejudice

60
Q

Prosecutor’s Duty to Disclose Exculpatory Evidence

A
  • Government has duty to disclose material exculpatory evidence to D. Failure to disclose violated due process and is grounds for reversing if the D can prove: (1) evidence is favorable because it either impeaches or is exculpatory; and (2) prejudice has resulted
61
Q

Competency to Stand Trial Standard

A

incompetent to stand trial if they either (1) lack a rational as well as factual understanding of the charges or (2) lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding

62
Q

Right to Unbiased Judge

A
  • Due process is violated if judge shown actual malice against the D or has a financial interest in a guilty verdict (must be actual malice, snide comments won’t do)
  • Also bias is judge had earlier significant involvement as a prosecutor in D’s case
63
Q

Right to Trial by Jury

A
  • If offense involves imprisonment of more than six months
  • Must be at least six jurors and verdicts must be unanimous
64
Q

Effective Assistance of Counsel

A
  • Sixth Amendment right to counsel includes the right to effective counsel which is generally presumed
65
Q

Proving ineffective assistance

A
  • Claimant must show deficient performance by counsel; and
  • but for the deficiency, the result of the proceeding would have been different
  • Must be specific like left out evidence or alibi
  • If counsel admits guilt when D wants to maintain innocence will mandate a new trial
66
Q

Procedural Rights During Sentencing

A
  • A defendant has a right to counsel during sentencing
  • For usual sentences they may be based on hearsay and D has no right to confront
  • For a magnified sentence based on new findings of fact, those facts must be found in a context that grants a right to confront
67
Q

Habeas Corpus Proceeding

A
  • Indigent has no right to appointed counsel
  • petitioner has the burden of proof by preponderance of the evidence to show unlawful detention
  • D may bring only if they are in custody
68
Q

Double Jeopardy

A
  • Under Fifth Amendment, attaches in a jury trial at the empaneling and swearing of the jury. In bench trials jeopardy attaches when the first witness is sworn
  • Applies to juvenile proceedings
69
Q

Exceptions Permitting Retrial

A
  • Trial ended in a hung jury
  • When there is manifest necessity to abort the original trial (medical emergency)
  • After successful appeal unless grounds was insufficient evidence to support guilty verdict (however may not be tried for a greater offense)
  • Charges may be reinstated
  • If D could have been tried for multiple things and separates them
70
Q

Same Offense

A
  • Two crimes are the same offense unless each crime requires proof of an additional element that the other does not
71
Q

Separate Sovereigns

A
  • Double Jeopardy does not apply to separate sovereigns
  • D can be tried in federal and state court for the same crime
72
Q

Privilege against Compelled Self-Incrimination

A
  • Under the Fifth Amendment, can be asserted by any person in any type of case
  • can only be asserted if answer incriminates you personally
  • Does not apply to names in Terry Stops
  • Prosecution can’t comment on D’s silence
  • If silent before Miranda Warnings then prosecution may use that

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