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MBE and NY Distinctions 2013 > Criminal Procedure w/ NY Distinctions > Flashcards

Criminal Procedure w/ NY Distinctions Flashcards

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1
Q

EXCLUSIONARY RULE
What is the definition of the “fruit of the poisonous tree” doctrine?

A

Fruit of the Poisonous Tree

In addition to excluding evidence which is seized illegally, the doctrine ALSO excludes evidence that has been obtained or derived as a result of the initial search.

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2
Q

EXCLUSIONARY RULE
What are 5 situations where exclusionary rule doesn’t apply to exclude evidence?

A

Limitations on the Exclusionary Rule

(5 situations where evidence is NOT excluded despite the fact that search or seizure was unconstitutional:)

 Grand Juries

 Any Civil Proceeding

 Parole Revocation Proceedings

 Good Faith Reliance (judicial opinion, warrant (but see NYS), statute, or ordinance)

 Impeachment of Criminal Δ.

  • o Otherwise voluntary confession
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3
Q

ARRESTS
On the MBE, what does PD need to initiate an arrest?
A stop-and-frisk?

A

Arrest: is a seizure for purposes of the
4th Amend, requiring PC

Warrant for Arrest:
 Not needed for public arrests.
 Is needed for non-emergency arrest of a person in their own home.

Only RS Needed for Stop-and-Frisk
 Duration and Scope
 Includes Property Seizure

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4
Q

EXCLUSIONARY RULE
How can the chain between PD action and illegally seized evidence be broken to allow introduction of that evidence?

A

3 Ways to Break Chain Between Illegal PD Action and Derived Piece of Evidence

 Independent Source of Evidence
 Inevitable Discovery of Evidence
 Δ’s Intervening Act of Free Will

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5
Q

SEARCH & SEIZURE
What is government conduct?

A

4th Amendment Protections are for Government Conduct

 Government-paid PD (on/off duty)
 Private individual acting at PD direction
 Unless deputized, private police are NOT engaged in government conduct.

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6
Q

SEARCH & SEIZURE
Flow Chart for Legality of Search/Seizure Under the 4th Amendment

A
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7
Q

SEARCH & SEIZURE
When does a person NOT have a reasonable expectation of privacy?

A

NO reasonable expectation of privacy in things that a person holds out to the public everyday.

“Patty Achieved A Glorious Victory Over Her Opponents”

  • Paint Scrapings
  • Account Records
  • Airspace (can be seen below while flying)
  • Garbage
  • Voice
  • Odors (**MBE: **coming from your car or luggage)
  • Handwriting
  • Open Fields (seen in or across)

Note: Everything has here has knowing exposure to Third Parties

No Expectation: (1) passengers in car, where passenger doesn’t own car or property seized; (2) drug dealer on premises solely for business purpose of cutting up drugs

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8
Q

SEARCH & SEIZURE
When does a person have standing to object to
the legality of a search?

A

A person has standing when they have a reasonable expectation of privacy.

ALWAYS have a reasonable expectation:
 On premises you own.
 Where you live
 Where you are an overnight guest

Though PD are supposed to have arrest warrant to arrest a Δ in a 3rd party’s home, Δ has no standing to challenge, because the warrant is to protect the 3rd party’s privacy right.

If PD have PC to arrest, but no warrant, but arrest Δ in his home (viol)a later confession at the station house is OK (NOT fruit of unlawful arrest).

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9
Q

EXCEPTIONS TO WARRANT REQUIREMENT: SEARCH INCIDENT TO LAWFUL ARREST
What are the requirements of
the search incident to a lawful arrest warrant exception?

A

_Requirements for
Search Incident to a Lawful Arrest Exception:_

  • Arrest is lawful (PC)
  • Justifications: (1) Officer and (2) Need to Preserve Evidence
  • Timing of Search: Contemporaneous in time/place w/ arrest
  • Search of the person - Areas within arrestee’s wingspan
    • Wingspan includes passenger compartment BUT NOT trunk for arrest in car.
      • MBE: Person includes: Body, Clothing, and Any Containers w/t arrestee’s Immediate Control in
      • NYBE: To search containers w/t wingspan, PD must SUSPECT that arrestee is armed

(But PD can search anywhere in car where PC takes them.)

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10
Q

EXCEPTIONS TO WARRANT REQUIREMENT: SUMMARY OF THE EXCEPTIONS

A

Exigent Circumstances:

  •  Emergency Situations (circumscribed by the exigency)
  •  Fleeing Suspects/Hot Pursuit
  •  Evanescent Evidence
  •  Community Caretaking

Plain View (fruits, instrumentalities, evidence of crime)

Automobile Exception (wherever PC takes them)

Arrests (public felony; misdemeanor in front of PD)

Search Incident to Arrest (person and area within control;
if in car, doesn’t include trunk, but if PD has PC, anywhere)

Multi-Unit Building: if police reasonably search the wrong unit in such a building = evidence found is admissible.

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11
Q

EXCEPTIONS TO WARRANT REQUIREMENT: PLAIN VIEW
What is the key to the
plain view exception to
the warrant requirement?

A

The police officer must legitimately be present where she does the viewing.

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12
Q

EXCEPTIONS TO WARRANT REQUIREMENT: AUTOMOBILE EXCEPTION
What is the standard for the automobile exception to the warrant requirement?

A

PD may search an automobile and containers within it w/o a warrant where they have PC to believe contraband or evidence of crime is contained.

  • PD can search entire vehicle and they may open any package, luggage,or oter container they may reasonably contain the items for which there is PC to search.
  • E.g. if PD has PC to believe illegal aliens in car, CANNOT search glove compartment
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13
Q

EXCEPTIONS TO WARRANT REQUIREMENT: STOP & FRISK/TERRY STOP
What does the court
balance to determine if
a PD action is a Terry stop?

A

Stop & Frisk Only Requires RS

To determine if a seizure is a stop-and-frisk (Terry Stop), balance:

  •  Nature & extent of government interest
  •  Against privacy intrusion.
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14
Q

EXCEPTIONS TO WARRANT REQUIREMENT: CONSENT

A

Consent must be (1) voluntary, & (2) intelligent

  •  PD do NOT have to warn person re: right to refuse for it to be voluntary and intelligent.
  •  HOWEVER, PD CANNOT lie and state that they have a warrant when they don’t.
  •  3rd Party Consent: if +1 person has equal right to use property, any can consent
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15
Q

EXCEPTIONS TO WARRANT REQUIREMENT: HOT PURSUIT

A

PD in immediate pursuit of a subject don’t need a warrant to make a search.

Moreover, once PD enter a home while in pursuit, there are NO other limitations:

  • NO wingspan limitation.
  •  Can include anything they found, even if NOT related to fleeing felon.
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16
Q

EXCEPTIONS TO WARRANT REQUIREMENT: EVANESCENT EVIDENCE

A

If the evidence would likely disappear if PD took the time to get a warrant.

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17
Q

MIRANDA: 5TH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION
What circumstances require PD to give Miranda warnings?

A

Two Prerequisites to Miranda

 Custody

  • Reasonable person in Δ’s position would have believed himself to be deprived of freedom in a significant way.
  • Includes police station, hospital bed, but not probation interviews or traffic stops.

 Interrogation

  • PD knew or should have known might solicit a damaging response.

(Most Terry stops do NOT implicate Miranda.)

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18
Q

WARRANT REQUIREMENT
Does wiretapping
require a warrant?
What is the unreliable ear?

A

Wiretapping and eavesdropping generally require a warrant, EXCEPT:

  • Unreliable Ear: no expectation of privacy in conversation with “wired” government informant, even in Δ’s home.
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19
Q

MIRANDA: 5TH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION
What happens after a party asserts right to counsel?

A

USSC created 5th Amendment right to counsel as a prophylactic measure to protect against self-incrimination.

Once Δ asserts right, re-interrogation of Δ w/o his attorney violates the 5th Amendment:

  • Not offense-specific.
20
Q

MIRANDA: 5TH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION
What is required to waive the Miranda warnings?

A

Valid Miranda Waiver:
Knowing, Voluntary, & Intelligent.

  • Full awareness of both nature of the right being abandoned and the consequence
    • Silence/shoulder shrugging: NOT waiver
    • However, PD not telling Δ that his lawyer wanted to talk to him was OK.
21
Q

6TH AMENDMENT RIGHT TO COUNSEL
On MBE, what topics can
PD question a criminal Δ
on after she has asserted
her 6th Amendment
Right to Counsel?

A

6th Amendment Right to Counsel is offense-specific, so PD CAN question suspect about other crimes/subjects after invocation.

22
Q

PRETRIAL IDENTIFICATION
What are the two bases
to attack pretrial ID? Remedy?

A

Denial of Right to Counsel

  • Post-charge line-ups and show-ups give rise to a right of counsel (NOT pictures, though).

Denial of Due Process of Law

  • Line-up so unnecessarily suggestive (likely to produce misidentification).

Remedy: exclude, UNLESS prosecution
can show an independent source.

23
Q

EXCEPTIONS TO WARRANT REQUIREMENT: THE BASIC RULE
What is the basic rule regarding warrants?

A

Searches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the 4th Amendment, subject to a few specifically established and well-delineated exceptions. Katz

However, the exceptions taken cumulatively make the exceptions largely the rule.

24
Q

BAIL

A

Bail issues are immediately appealable.

Preventative detention is constitutional.

25
Q

TERRY STOPS AND RS
Compare RS and PC

A

Reasonable/articulable suspicion can be established by both:

  •  Less evidence than PC, and
  •  Less-reliable evidence than PC.

But, situations that do NOT alone, establish RS:

  •  Anonymous tip w/NO familiarity w/person’s affairs & no prediction of future behavior
  •  Presence in high crime area, alone.
  •  Flight from PD, alone.
26
Q

WARANTLESS SEARCHES
What are other situations where government can search without either a warrant or PC?

A

Searches w/Neither Warrant Nor PC

  •  Roadblocks for DWI, Immigration Near the U.S. Border (fixed);
  •  Consent Searches
  •  Schools (Balance Test Allows Drug Testing, Other Searches)
27
Q

WARRANTLESS SEARCHES
What are the 4 ways PD
can search a car, and with what level of suspicion?

A

Searching Cars

No Suspicion: Request Consent Search
RS: Terry stop
PC: search any area that PC takes PD
SITA: wingspan (not including trunk)

28
Q

MIRANDA: 5TH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION
In which situations does Miranda not apply?

A

6 Situations Where Miranda Does NOT Apply

 Non-Custodial Interrogations
 Admissibility of Statements for Impeachment
 Questions by Non-State Agents
 Questioning of Suspects By Undercover PD (even where Δ is in prison)
 Routine Questioning During Booking
 Questioning By PD AFTER a Valid Waiver
 Public Safety Exception (weapon in public)

29
Q

MIRANDA: 5TH AMENDMENT
RIGHT AGAINST SELF-INCRIMINATION
When can/can’t PD
interrogate a suspect?

A

PD Interrogation Timeline

 CAN: Prior to arrest/custody
 CANNOT: After arrest, before warnings.
 CAN: After warnings
 CANNOT: After Δ invokes rights.

30
Q

RIGHT TO A JURY TRIAL
When is there a constitutional right
to a jury trial?

A

Maximum Authorized Sentence > 6 Months

If the maximum authorized sentence exceeds 6 months, then there
is a constitutional right to a jury trial. Otherwise, no such right.

31
Q

6TH AMENDMENT RIGHT TO COUNSEL
What are the characteristics of the 6th Amendment right?

A

 Attaches on commencement of formal adversarial proceedings.

 Bars PD Action that is deliberate elicitation after commencement, but doesn’t require custody

 Crime Specific (b/c only attaches once formal proceedings begin).

 After Invocation, No PD Surreptitious Methods.

32
Q

RIGHT TO A JURY TRIAL
Cross-Sectional
Requirement for Juries

A

Jury pool must reflect a fair cross-section of the population, however no right for Δ’s particular jury to be so-representative.

HOWEVER, preemptory challenges based on race or gender are unconstitutional, whether utilized by the Δ or the State.

33
Q

RIGHT TO A JURY TRIAL
Number & Unanimity
of Jurors

A

Minimum of 6 Jurors

  • Verdict Must be Unanimous.

No Constitutionally Protected Right to a Unanimous 12 Person Jury

  • 9 – 3 was OK
34
Q

5TH AMENDMENT RIGHT AGAINST COMPELLED TESTIMONY
What are the 3 situations where privilege against compelled testimony does NOT apply?

A

3 Ways 5th Amendment Priv. Can Be Eliminated

MBE Grant of Immunity: use & derivative use
 No possibility of incrimination: i.e. SOL
Waiver: by taking witness stand criminal Δ waives 5th Amendment privilege.

35
Q

INEFFECTIVE ASSISTANCE
OF COUNSEL
What is required?

A

A claim for ineffective assistance of counsel (Strickland Claim): requires Δ to show:

  •  Deficient Performance By Counsel, AND
  •  But For Such Deficiency, the Result of the Proceeding Would Have Been Different
36
Q

GUILTY PLEAS
What are sufficient bases
for withdrawal of guilty
plea after sentence?

A

USSC: Contract theory of pleas, and Court generally unwilling to disturb pleas.

4 Bases of Plea -Withdrawal After Sentence

  • Involuntary
  • Court’s Lack of Jurisdiction
  • Ineffective Assistance of Counsel
  • Prosecutor’s Breach of Agreed-Upon Bargain
37
Q

GUILTY PLEAS
What are the requirements for a finding of a valid plea?

A

On record, judge must engage in constitutionally-required colloquy with Δ to ensure:

  • Voluntariness, and
  • Intelligence

Requirements of Record:

  • Address Δ Personally (NOT counsel)
  • Nature of Charge
  • Max. Authorized/Any Mandatory Min. Sentence
  • Right to Plead Not Guilty and Get Trial

Remedy: Δ may withdraw plea and start again.

38
Q

DOUBLE JEOPARDY
When does jeopardy attach in a jury trial? Bench trial?

A

Jeopardy Attaches:
Jury Trial: when the jury is sworn.
Bench Trial: when the first witness is sworn.

Jeopardy does NOT attach in civil proceedings, other than juvenile trials.

39
Q

DEATH PENALTY
4 Important Issues for Any Death Penalty Question

A
  • Death penalty statute that doesn’t give Δ chance to present mitigating facts is unconstitutional.
  • There can be no automatic category for imposition of death penalty.
  • The state may not, by statute, limiting the mitigating factors; statute must allow all mitigating factors.
  • Jury, not judge, may determine the aggravating factors justifying imposition of the death penalty.
40
Q

DOUBLE JEOPARDY
On MBE, what constitutes
the same offense?

A

On MBE, 2 crimes are the “same offense” if each crime requires proof of an additional element that the other does NOT require.

Lesser/Greater Included Offenses: if you are tried for one, you can’t be tried for the other

  • E.g. Larceny + Assault = Robbery
  • BUT, if you tried for battery, then victim dies, you can be tried for the murder.
41
Q

DOUBLE JEOPARDY
What are the 4 exceptions permitting retrial for the same offense after jeopardy has attached?

A

Four Exceptions Permitting Retrial for Same Offense After Jeopardy has Attached

  • Hung Jury: jury unable to agree on a verdict.
  • Mistrial for Manifest Necessity (e.g. Δ gets sick); if case dismissed at behest of Δ, not on merits
  • Retrial After a Successful Appeal
  • Breach of an Agreed-Upon Plea Bargain by Δ
    • If Δ breaches bargain, the sentence can be withdrawn and original charges reinstated.
42
Q

DOUBLE JEOPARDY
What is the general rule?

A

Double Jeopardy

Under the 5th Amendment, a person may not be retried by the same sovereign for the same offense once jeopardy has attached.

43
Q

DOUBLE JEOPARDY
What are separate sovereigns?

A

Separate Sovereigns

  • Two States Are NOT the Same Sovereign
  • State & Federal Are NOT the Same Sovereign
  • State & Municipality ARE the Same Sovereign
44
Q

5TH AMENDMENT RIGHT AGAINST COMPELLED TESTIMONY
What does the privilege protect? What is
outside its scope?

A

Does NOT protect Δ from using body to indict her

  • Real/physical evidence: not compelled testimony (e.g. hair, sample, fluids)
  • E.g. NYS Ct. App: okayed introduction of tattoos in hate crime prosecution (physical evidence).

DOES Protect Δ from Compelled Testimony

  • E.g. lie detector or custodial police interrogation
45
Q

5TH AMENDMENT RIGHT AGAINST COMPELLED TESTIMONY
Who can claim the privilege and in which proceedings?

A

Anybody can claim 5th Amendment privilege in any proceeding
(e.g. criminal, civil, congressional).

However, it is waived if you don’t invoke it the first time you are asked the specific question under oath.

46
Q
A

MBE and NY Distinctions 2013 (4 decks)

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