critical pass - crim pro Flashcards
1
Q
When does an arrest occur
A
An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation
2
Q
What is required for any valid arrest?
A
PC
2
Q
what is PC?
A
trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime
3
Q
are warrants usually required for arrests?
A
No - not usually needed before arresting someone in a public place
4
Q
When is a warrant required for an arrest?
A
non-emergency home arrests require a warrant and reasonable belief suspect is at home
I.e., police must have an arrest warrant to arrest an individual in their home; police may only enter the home if they have reason to believe the suspect is in the home
5
Q
Is a warrant required when the police want to arrest a suspect at a third parties home?
A
Yes - search warrant required for police to execute arrest of a suspect in third parties home
6
Q
what are common govt detentions?
A
- Stop & frisk (a.k.a. “Terry-type” stop)
- Automobile stop
- Stationhouse detention
- Detention to obtain a search warrant
- Detention of occupants of a premises while searching
7
Q
What is needed for a station house detention?
A
Probable cause required to compel a person to enter a govt. location for fingerprinting, questioning, etc.
8
Q
What is needed for detention to obtain a search warrant?
A
If police have probable cause to believe a suspect has contraband hidden in her home, they may prevent her from entering her home for a reasonable time while they obtain a search warrant
Purpose must be to prevent destruction of evidence
9
Q
What is needed for a detention of occupants of a premises
A
If police have a valid warrant to search premises, they may detain occupants for duration of the proper search
10
Q
what is required for an automobile stop (stop or pull over a car)
A
reasonable suspicion that a law has been violated
11
Q
Is an ulterior motive for an automobile stop OK?
A
OK if police have PC of a traffic violation
12
Q
what can a cop do when they reasonably believe weapons are present in a car?
A
- order passengers out of car
- search passengers and passenger compartment (BUT NOT TRUNK)
13
Q
An entire car may be searched only if there is:
A
PC pursuant to automobile search exception
14
Q
Police checkpoints must:
A
- Stop cars using a neutral, articulable standard (e.g., every fourth car); and
- Serve purposes related to automobiles and their mobility (DUI checks are valid, but drug checkpoints are insufficiently related to driving)
15
Q
Why are drug checkpoints insufficiently related to driving?
A
They dont serve purposes related to cars and their mobility and are unconstitutional
16
Q
Test for determining the validity of a search or seizure:
A
- is there govt conduct constituting a search or seizure?
- does D have standing?
- If there a valid warrant?
- If no warrant, was there a valid exception to the search warrant req?
17
Q
What is included in “govt conduct” other than the police?
A
private persons acting at the direction of govt agents
18
Q
When does D have standing for the reasonableness of a search or seizure test?
A
D must have a reasonable expectation of privacy in the thing or place to be searched
19
Q
Exceptions to the search warrant requirement
A
SPAACES
Search incident to arrest
Plain view search
Administrative Searches
Automobile exception
Consent
Exigent circumstances
Stop & frisk
20
Q
the 4th amendment only applies if
A
a person has a reasonable expectation of privacy (REOP) regarding the thing or place searched and/or the items seized
21
Q
Standing requires
A
REOP
22
Q
when is there automatic standing?
A
Automatic standing:
REOP always exists if D either:
1. Owns, has a right to possess, or lives in the premises to be searched, or
- Is an overnight guest of the premises to be searched
23
Q
Things you have no reasonable expectation of privacy in
A
- Sound of your voice
- Style of your handwriting
- Paint on outside of car
- Account records held by bank
- Location of car on public street or driveway
BUT…. GPS device on suspect’s car constitutes a search within the 4th amendment (Jones) - Anything seen across open fields
- Anything seen from flying over public airspace (low aerial photographing)
- Odors from luggage or car
- Garbage set out on the curb for collection (NEEDS TO BE ON CURB)
24
3 Req's for a valid search warrant
1. based on PC
2. Precise on its face
3. Issued by a neutral and detached magistrate
25
when can the police NOT rely on a defective warrant obtained in good faith:
1. Affidavit completely lacks probable cause (i.e., no reasonable police officer would have relied on it),
2. Warrant is defective on its face,
3. Police or govt. official lied or misled magistrate, or
4. Magistrate has “wholly abandoned her judicial role”
26
Knock and announce req for search warrants
police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord
27
Exception to knock and announce req
knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation
28
When must a search warrant be executred
search warrant must be executed without unreasonable delay after it is issued
29
Police can detain people found on the searched premises. But, can they search them?
no - police cannot search detained persons unless they are specifically named in the warrant or a valid warrantless search exception exists
30
The scope of a search is limited to
what is reasonably necessary to discover items described in the warrant
31
What is the acronym for the exceptions to the warrant req
SPAACES
Search incident to arrest
Plain view search
Administrative Searches
Automobile exception
Consent
Exigent circumstances
Stop & frisk
32
For a search incident to arrest, police may search
lawfully arrested person and his immediate surrounding area without a warrant
33
Req's for a valid search incident to arrest
1. lawful arrest
2. Search must be contemporaneous with the arrest
3. Search must be limited to area within suspect’s reach or movement (i.e., where he could obtain weapons or destroy evidence)
34
what are protective sweeps? are they allowed?
Protective sweeps — police may sweep an area for officer safety or with reasonable belief that accomplices may be present
35
What is an inventory search?
Inventory search — police may search arrestee’s belongings or seized property when jailing an arrested suspect
36
Police may search passenger compartment incident (NOT THE TRUNK) to arrest if: GANT RULE
1. Arrestee is unsecured (not in back of squad car) and may gain access to vehicle; or
2. Police reasonably believe evidence of offense for which person was arrested may be found
37
When is the only time a Cop can search the trunk?
if they have PC or consent
38
When is a warrantless Breathalyzer test allowed
following a lawful arrest based on PC of drunk driving
39
Can the cops search the contents of your phone seized during an arrest?
No Need warrant
40
Police can seize evidence in plain view without a warrant if:
1. Police are legitimately on the premises from which they viewed the evidence to be seized;
2. Criminal activity or contraband is immediately apparent; and
3. Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime
41
Can plain view situations where the cops see something through binoculars?
Yes
42
What else is included in plain view?
Plain smell.
Not manipulation!
43
Can cops use technology to view the evidence that is not generally available to the public?
No - infrared scanners are not allowed
44
Requirements for the consent exception to warrant req
1. voluntarily and intelligently made
2. person giving consent had authority to consent
45
Do cops have any duty to inform suspects that they can refuse to consent?
No
46
With valid consent, police can do..
anything
47
When is third party consent allowed
where multiple people have property rights. any single one of them can consent to the search of any area where they have authority to consent
48
Scope of consent is dictated by the person present with
the highest authority to consent
49
If you see a refusal, and then another person consents, what controls?
Refusal trumps consent
50
Requirements for the automobile search exception
1. Police must have probable cause to search the vehicle; and
2. Probable cause must arise before the search begins
51
If the automobile exception applies, what can the police do?
police may search an entire vehicle (including the trunk);
containers or compartments inside that may contain the evidence they are searching for;
AND
may search passengers and their belongings
52
When is a frisk allowed?
If the police have reasonable suspicion that the person is armed and dangerous
53
Once the police frisk and they think they feel a weapon, what can they do next?
Plain feel — if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item
54
What happens if the officer is frisking and manipulates the item (grabs the shirt) to develop a reasonable belief of a weapon?
Not valid. must be plain touch
55
Stop and Frisk is the same as a
Terry stop
56
3 common forms of exigent circumstances
1. hot pursuit
2. evanescent evidence
3. emergency that threatens health or safety
57
What is evanescent evidence? What can the police do with it?
Evidence that would disappear / destroyed
Police can search or seize evidence that could disappear if police were required to secure a warrant
58
Examples of evanescent evidence?
1. DNA that could not last
2. drugs that could be destroyed
59
common types of energies that give rise to a valid warrantless search
police see someone injured or threatened with injury, bomb threats, need to find source of a food or drug contamination
60
Other 4th amendment searches?
1. administrative/public school
2. border and immigration
3. wiretapping/eavesdropping
61
What are administrative searches? Examples?
govt. agencies may conduct routine searches or inspections of highly-regulated businesses or industries
E.g., building code inspection, inspections for food safety, airline passenger searches
62
What is always a permissible public school search?
random drug tests for public school students participating in extracurricular activities
63
3 elements for determining whether school search is reasonable
School search is reasonable if:
1. Search offers a moderate chance of finding evidence of wrongdoing;
2. Procedure for searching is reasonably related to the objectives of the search; and
3. Search is not excessively intrusive
64
At borders, officials may conduct routine searches of persons and their effects (including vehicles) without...
officials may conduct routine searches of persons and their effects (including vehicles) without a warrant, probable cause, or reasonable suspicion
65
When can officials detain a traveler at the border
if they have reasonable suspicion she is smuggling contraband
66
Officials can open and inspect international mail if...
Officials can open and inspect international mail if they have reasonable suspicion it contains contraband
67
when can officials raid a business
Officials may raid a business to determine citizenship status of its employees
68
do police need a warrant if they get someone to wear a wire and talk to a suspect?
no ! all speakers assume the risk that the person to whom they are speaking is wired and/or recording the conversation
69
Warrant requirements for electronic surveillance: wiretapping and eavesdropping
1. Probable cause that a specific crime is being or has been committed
2. Warrant must name suspects subject to surveillance
3. Warrant must describe with particularity the subject of conversations that can be surveilled
4. Surveillance must be limited to short periods of time
5. Surveillance must terminate when desired information is obtained and must be turned over to the court
70
Does electronic surveillance like wiretapping and eavesdropping require a warrant?
Yes when it violates a REOP
71
If someone makes no attempt at keeping a conversation private, they have
no reasonable expectation of privacy
72
What does the exclusionary rule do?
Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial
73
What is the fruit of the poisonous tree doctrine?
evidence derived or obtained from illegal govt. conduct is excludable against D
74
What are the three INS that make evidence admissible (exceptions to fruit of poisonous tree doctrine) - despite original unlawful police action
1. Independent source
2. Intervening Act of free will
3. Inevitable Discovery
75
What is the remedy for an exclusionary rule violation?
For admission of illegally-seized evidence to be upheld on appeal, govt. must show that it was harmless beyond a reasonable doubt - harmless error review
76
The exclusionary rule only applies to
searches in violation of fed statute of constitution
77
Exclusionary rule does not apply to: (3)
1. Grand jury proceedings, civil proceedings, parole hearings, or administrative cases
2. Violations of the “knock and announce rule” in executing search warrants
3. Evidence seized as a result of Miranda violations
78
A voluntary confession obtained in violation of Miranda, can be admissible for what purpose?
impeachment ONLY
note: INVOLUNTARY confession is not included, cannot be used to impeach.
79
What is the good faith defense to the exclusionary rule?
Illegally obtained evidence will not be excluded if the govt. demonstrates that it relied in good faith on either:
1. A reasonably relied upon but defective search warrant, or
2. A judicial opinion or statute that was later changed or declared invalid
80
what are the 4 exceptions to the limitation on the exclusionary rule when the police have good faith reliance on law, or a defective search warrant?
1) Affidavit so lacking in PC that no reasonable officer would rely on it
2) affidavit so lacking in particularly no reasonable officer would rely on it
3) officer or prosecutor lied to or misled magistrate
4) magistrate is biased and wholly abandoned neutrality.
81
the 5th amendment privilege against compelled self-incrimination only applies to
Testimonial/communicative evidence
82
What is the 5th amendment privilege
Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself
83
Who has NO 5th amendment privilege against self-incrimination?
Entities (corp/partnership/LLC)
84
the 5th amendment privilege does not apply if: (3)
1. Grant of immunity — govt. can grant immunity from prosecution for self-incriminating testimony
2. Incrimination is not possible — e.g., statute of limitations has run
3. Extinguished by waiver — D waives the privilege
85
At trial, the prosecution CANNOT comment on
D's silence or failure to testify
86
When is the only time the prosecution can comment on D's failure to take the stand?
When in response to defense counsel’s assertion that
the defendant was not allowed to explain their side of the story.
87
When can silence be used against you in court?
If suspect remains silent before Miranda warnings
88
What are the two req's for Miranda Rights being read? When is miranda req'd
Need a 1) custodial; 2) interrogation
89
Two step process for determining custody:
1) whether reasonable person would feel free to terminate interrogation and leave
2) whether environment presents same inherently coercive pressures as station house questioning
90
Test for interrogation Req
any words or conduct by police that they should know would likely elicit an incriminating response (not just questions, need incriminating response)
91
Miranda warnings are NOT required for ____ statements
spontaneous (just blurting out a crime you committed)
92
Are routine booking Qs subject to Miranda?
No not an interrogation
93
What is the exception to the interrogation req?
Public safety exception: police may interrogate suspects without giving Miranda warnings if necessary for public safety
(e.g., D has info about a bomb that could go off in public)
94
what are the full miranda warnings?
must inform detainee that:
1) right to remain silent
2) anything he says can be used against him in court
3) he has the right to counsel
4) if cannot afford attorney, one will be appointed if he desires.
95
do you need to recite miranda verbatim
no substantial compliance will work
96
failure to give miranda warnings implicates what amendmnet
5th
97
If a detainee invokes their right to remain silent, could the police requestion them about a different crime?
Yes - but prob after a break and if fresh warnings are administered.
98
If a detainee invokes their right to counsel, could the police requestion them about a different crime?
If right to counsel invoked, no questioning until attorney is present.
99
For the right to silence and right to counsel, what happens if the detainee initiates communication against
interrogation is allowed. but the accused must initiate
100
How can a detainee waive their miranda rights? what test is used to determine this?
waiver must be knowing and voluntary (look at TOC)
101
what is double jeopardy
person may not be retried for same offense once jeopardy has attached
102
When does jeopardy attach
( jury trials vs. bench trials)
Jury: Empaneling and swearing of jury
Bench: When first witness is sworn
103
Two crimes are not the same offense for double jeopardy
one crime requires proof of additional element that the other does not
first offense requires proof of A, B, & C; second offense requires proof of A & B; second offense is barred
104
One jeopardy attaches for the greater offense, D cannot be charged for a
lesser included offense
105
what are the exceptions permitting retrial for double jeopardy
1. hung jury
2. mistrial due to manifest necessity (D is too sick to continue)
3. retrial after a successful appeal by D
4. D breaches a plea bargain agreement
4. Separate sovereigns
106
what are two examples of separate sovereigns?
1. state and fed govt
2. 2 states
107
What is an example of same sovereigns?
State and its municipalities.
108
Once the 6th amendment right to counsel attaches, police cannot
elicit incriminating statements outside the presence of Ds counsel
109
What are the two distinguishable points about the 6th amendment right to counsel?
1. automatic: attaches once changes have been filed
2. offense specific (cops can question D about any other crimes)
110
To establish ineffective assistance of counsel on appeal, D must show ...
To establish ineffective assistance of counsel on appeal, D must show there is a reasonable probability that his trial’s outcome would have been different absent counsel’s deficient performance
111
The right to effective counsel is included in what
the 6th A right to counsel
112
a suspect has a right to counsel at any post-charge, in-person lineup or showup. But this does not apply to:
non live identification procedures
ex. photographic line ups, fingerprinting
113
D can attack pretrial identification procedures (line ups) as a denial of due process rights if:
1. Identification is unnecessarily suggestive; and
2. There is a substantial likelihood of misidentification
(ex. perpetrator believed to be male and suspect is the only male in lineup; would likely violate due process)
114
grand juries are required in federal court under
the 5th A
115
Grand juries are used to determine
whether there is sufficient probable cause to bring charges against a suspect
116
Grand jury proceedings must be:
1. secret
2. suspect has no right to confront witnesses or attend
117
Can witnesses invoke their right to counsel during a grand jury proceeding?
No - but they can refuse to testify for fear of self-incrimination under the 5th A
118
If a witness refuses to testify for fear of self-incrimination at a grand jury proceeding, prosecutors can do what?
grant immunity in some form (i.e., use or derivative-use immunity) in exchange for potentially incriminating testimony
119
What rule does NOT apply in grand jury proceedings
Exclusionary rule does not apply
I.e., an indictment can be based on evidence that would be inadmissible at trial
120
A pretrial/preliminary hearing may be required if:
Required if:
1. D is incarcerated or released on bail (i.e., does not apply if D is released on sole condition that she appear for trial)
2. There has been no determination of probable cause
E.g., not required if arrest was made with warrant
121
A pretrial/preliminary hearing must occur...
within 48 hours of detention if required
122
what is D's 6th amendment right to speedy trial
6th Amend. protects D from unreasonable delay between the time charges are filed and the beginning of trial
123
when does the right to speedy trial attach
Right attaches once D has been arrested or charged
124
Factors to consider in whether a defendant's right to a speedy trial has been violated under 6th amendment?
L WRP
1) length of delay
2) Whether D asserted right
3) Reason for delay
4) prejudice to D
CONSIDERED UNDER TOC
125
If there is a violation of the right to speedy trial, what is the remedy
dismissal of case with prejudice
126
bail cannot be..
cannot be higher than necessary to ensure D will appear at trial
127
is detention without bail constitutional?
yes but a a decision to refuse bail is immediately appealable; arbitrary denial of bail violates due process
128
For denial of bail, govt. must show either:
D poses a flight risk, or
D poses a danger to the community
129
A D may enter a plea bargain, but doing so waives his....
6th Amend. right to a jury trial
130
Requirements for valid plea bargain
judge must:
1. Determine plea is voluntary and intelligently made; and
2. Ensure that D understands:
a. Nature of the charge and its critical elements
b. Maximum authorized penalty and any mandatory sentence
c. That D has a right to plead not guilty
d. That D is waiving his right to a jury trial
131
Appellate courts will not disturb valid pleas unless:
1. Plea was made involuntarily (e.g.., due to a misunderstanding),
2. The court that took the plea lacked jurisdiction,
3. D had ineffective assistance of counsel, or
4. The prosecutor failed to honor the plea
132
Is the judge required to accept or adhere to a plea agreement?
NO - but it will be enforced against both parties at first
133
What can the prosecutor validly do if D does not accept a plea
The prosecutor can threaten D with a more serious crime than he was initially charged with and even follow through on such threats if D does not accept plea
134
Who has a duty to disclose material exculpatory evidence to D
The govt
135
To establish a violation for disclosure of exculpatory info, D must show:
1. Evidence impeaches or is exculpatory;
2. Evidence is favorable to D; and
3.. Prejudice has resulted — will be found if there is a reasonable probability the result of the case would have been different if the undisclosed evidence had been presented at trial
136
6th A provides right to jury trial for
"all serious offenses"
137
what are serious offenses?
potential imprisonment for more than 6 months
138
Who has a right to be present for all critical stages of trial? like jury selection?
D
139
Jury size req?
Verdict req?
jury must contain at least 6 jurors
Unanimous verdict is required for all serious offenses
140
the jury ____ (“venire”) must be a representative cross-section of the community. But, The ___ jury does not have to be representative
the jury pool (“venire”) must be a representative cross-section of the community
The chosen jury does not have to be representative
141
What are for cause strikes
Jurors can be struck for cause if their views would prevent or substantially impair them from performing their duties (racial bias, feelings on death penalty, etc)
142
parties may exercise peremptory challenges for any reason EXCEPT
cannot be used to exclude jurors on account of race or gender (violates equal protection)
143
Judge cannot direct a verdict of guilt because
deprives D of his right to a jury trial (but judge may direct a verdict of acquittal)
144
what amendment gives D a right to confront witnesses
6th A
145
In person testimony of adverse witness is not required if:
1. Exclusion is necessary for public policy; and
2. Reliability of the testimony is otherwise assured
145
Under D's 6th A right to confront adverse witnesses, he can:
1) have adverse witnesses testify in person
2) subject to cross
146
Can a D be removed from court?
Yes but only for disruptive behavior
147
When is a Co-D's confession implicating D admissible against D?
Bench trials ONLY
Not admissible against D at joint jury trial
148
confession of a co-D is admissible if either:
1. Confessing co-D testifies subject to cross-examination,
2. Ds have separate trials,
3. Confession is redacted so that all portions referring to the co-D are eliminated, or
4. Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively
149
prior testimonial statements of unavailable witnesses are only admissible if D...
had the opportunity to cross-examine the declarant when the statement was made
150
The 8th Amend. prohibits cruel and unusual punishment, which bars punishment that is ...
grossly disproportionate to the offense
BUT death penalty is allowed
151
No death penalty what crime
rape
152
Death penalty cannot be imposed if:
1. D was under 18 years old when the crime was committed,
2. D is mentally disabled,
3. D is insane at the time of execution,
153
Requirements to impose death penalty
1. Statute allowing death penalty must not be unconstitutionally vague
2. Jury must be allowed to consider mitigating circumstances
E.g., D’s abusive childhood, mental impairment, etc.
3. There must be at least one “aggravating circumstance” (e.g., prior convictions) supporting the sentence
154
Is there a federal constitutional right to appeal
no
155
in a Habeas Corpus Proceeding, the D has no right to..
appointed counsel
(civil proceeding technically)
156
the 14th A due process clause requires that the govt prove
guilt beyond a reasonable doubt in all crim cases
157
the burden to prove guilt beyond a reasonable doubt is always on
the prosection
158
a state law shifting burden onto D to prove he is not guilty -- is this allowed?
NO. the burden on the prosecution can never be changed
159
D has the burden to prove...
any affirmative defenses he raises
160
what burden must D meet for his affirmative defenses?
differs with jdx, no constitutional req
161
A conviction is valid unless no rational judge or jury, ....
viewing evidence in the light most favorable to prosecution, would convict D
162
What can judges not due in jury instructions in criminal cases
judge cannot give mandatory jury instructions on elements of a charged crime
Requiring jury to make a presumption regarding an element of the charged crime violates due process
E.g., in murder trial where body was never found, cannot instruct jury to presume that a missing person is presumed dead
163
Where two persons are tried together and one has given a confession implicating the other, the general rule is...
that the Sixth Amendment right to confront adverse witnesses prohibits the use of such a statement.
164
what are the 3 exceptions to the general rule that confessions implicating the other person are prohibited (confession can be used against the other person in joint trial)
the statement may be admitted if:
(i) all portions of the statement referring to the other defendant can be eliminated (so that there is no indication of that defendant’s involvement);
(ii) the confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or
(iii) the confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.
165
The defendant and an accomplice were on trial together for burglary. Both had given confessions implicating themselves and their accomplice. At trial, the defendant maintained that his confession had been obtained through improper coercion by the police. For the purpose of countering the claim of coercion, the prosecution seeks to place the accomplice’s confession into evidence. After objection by the defendant’s counsel, the judge agrees to issue a limiting instruction to the jury that the confession is to be considered only with regard to the question of whether the defendant’s confession was coerced.
May the accomplice’s confession be admitted under that condition?
Yes exception to general rule: the confession of the nontestifying co-defendant can be used to rebut the defendant’s claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.
Judge can give jury limiting instruction to consider confession only for the issue of coercion
