Deck 1

Question 1

What is the Exclusionary Rule?

Answer 1

The Exclusionary Rule is a rule that prohibits introduction of evidence obtained in violation of the defendant’s Fourth, Fifth, and Sixth Amendment rights.

Question 2

What is meant by “fruit of the poisonous tree”?

Answer 2

The “Fruit of the Poisonous Tree” doctrine makes it possible for the exclusionary rule to not only exclude evidence obtained in violation of the Fourth,
Fifth, and Sixth Amendments, but also to exclude evidence obtained from exploitation of the unconstitutionally obtained evidence. In essence, it broadens the exclusionary rule so that the rule excludes more evidence than simply the illegally obtained evidence excluded by the exclusionary rule.

Question 3

What are some instances in which the exclusionary rule will not apply?

Answer 3

First, the exclusionary rule is not applicable to grand juries, parole revocation hearings, and civil proceedings. Furthermore, even if the evidence was obtained in violation of the exclusionary rule, that evidence may still be used for some impeachment purposes at trial. Note also that as per the Inevitable Discovery Doctrine, evidence that would have been discovered if the police had not acted unconstitutionally is admissible, even if that evidence was obtained unconstitutionally.

Question 4

What is a “seizure” as it relates to the 4th Amendment?

Answer 4

A seizure occurs when a reasonable person would believe that he is not free to leave or terminate an encounter with the government. This is an objective test (a reasonable person standard) rather than a subjective test.

Question 5

Must the police have a warrant before arresting a suspect?

Answer 5

It is not necessary that the police have a warrant to conduct an arrest. Rather, the police must have probable cause, which is equivalent to trustworthy facts that would lead a reasonable person to believe that the suspect has committed the crime.

Question 6

Is the standard for arrests the same as the standard for the police to stop a suspect and frisk a person?

Answer 6

The standards here are different. To stop a suspect, it is only necessary that the police have a reasonable suspicion of criminal activity supported by articulable
facts. Then, to frisk, the police must have reasonable suspicion that the suspect is armed and dangerous.

Question 7

How is “standing” defined in regards to the 4th Amendment?

Answer 7

A person has standing to argue a 4th Amendment violation if she has a reasonable expectation of privacy with respect to the place searched, or the item
seized. On the UBE, you can assume that a person has a reasonable expectation of privacy if she owned or had a right to possession of the place searched, the place searched was her home, even if not owned and without a right of possession, or if she was an overnight guest in the place searched.

Question 8

Are there specific objects or places of which one will be deemed not to have a reasonable expectation of privacy?

Answer 8

One has no reasonable expectation of privacy in the following: the sound of one’s voice; one’s
handwriting; paint on the outside of one’s vehicle; account records held by a bank; areas outside the home (for example, the front yard); garbage left for collection; land visible from a public place; and the smell of one’s luggage or car.

Question 9

What must the police present to the magistrate in order to obtain a warrant to search for evidence or seize evidence?

Answer 9

Warrants are issued if there is probable cause to believe that evidence will be found on the person or premises at the time the warrant is executed. An affidavit is submitted by the police to the magistrate setting forth circumstances allowing the magistrate to determine if this standard has been satisfied.

Question 10

If the affidavit is based on information obtained by an informant, will that in itself invalidate the affidavit if the informant’s credibility is questioned?

Answer 10

An affidavit can be sufficient even though the informant’s credibility is questioned, provided that the totality of the circumstances indicate that the affidavit presents reliable and credible information. In addition, there is no requirement that the informant’s identity be revealed.

Question 11

While executing a search warrant, can the police search others who are at the place specified in the warrant?

Answer 11

Though the police are free to detain occupants of the premises while executing their search, they cannot search those not named in the warrant unless a
proper basis for the search exists.

Question 12

What are the requirements for a search incident to a lawful arrest?

Answer 12

A search incident to a lawful arrest is an exception to the warrant requirement. For it to be valid, the search must take place contemporaneously with a valid arrest. The search need not be simultaneous with the arrest, however. The police can, for example, search a suspect’s car (the interior) after securing that suspect in a squad car. The search is generally limited to the person and any areas into which the person might each to obtain a weapon or to destroy evidence. Note that this exception also allows the police to make a protective sweep if they believe other suspects might be present.

Question 13

How does the Automobile Exception differ from a Search Incident to a Lawful Arrest?

Answer 13

For the automobile exception to apply, the police must have probable cause to believe that the automobile contains evidence of a crime. The police may search
the entire vehicle (rather than only those areas into which the suspect may reach), but they are limited to searching only areas that may reasonably contain the
evidence they believe to be present. The police can also tow the vehicle to the police station for a later search.

Question 14

What is meant by “plain view”?

Answer 14

The police can make a warrantless seizure when they are legitimately on the premises, discover evidence of a crime, see the evidence in plain view, and have probable cause to believe that the item is evidence of a crime. This exception prevents the police from having to go obtain another warrant for the new evidence while they are executing a warrant for other evidence.

Question 15

Who may consent to a warrantless search?

Answer 15

First, consent must be voluntary and intelligent. Apparent authority is the key here. Any person with the apparent authority to use or occupy the property may
consent to a search, and any evidence found may be used against the other owners or occupants. If a co-occupant is present and objects to the search, the consent of other co-tenants is invalidated.

Question 16

What constitutes “Hot Pursuit”?

Answer 16

Police who are in hot pursuit of a suspect (for example, chasing after the suspect who is fleeing,) may make a warrantless search and seizure and may even chase the suspect into a dwelling. Police can then seize without a warrant evidence likely to disappear before a warrant can be obtained.

Question 17

What are the specific rules as they relate to wiretapping?

Answer 17

The police must obtain a valid warrant prior to wiretapping. A valid warrant may be issued if there is a showing of probable cause, the suspected persons to be overheard are named in the warrant, the warrant describes with particularity the conversations that can be overheard, the wiretap is limited to a short duration of time, the wiretap is terminated when the desired information has been obtained, and the court is later informed as to what conversations have been received.

Question 18

When is a suspect entitled to Miranda warnings?

Answer 18

Miranda warnings are required when a suspect is in the custody of the government. The warnings must be given prior to interrogation by the government.

Question 19

What exactly is meant by “custody”?

Answer 19

Custody is measured by an objective (reasonable person) standard. If a reasonable person would believe that his freedom of action has been denied, and he
is not free to leave, then he is in custody for purposes of determining his right to Miranda warnings.

Question 20

What exactly is meant by “interrogation”?

Answer 20

First, the suspect must know that the government is interrogating him to trigger the need for Miranda warnings. Interrogation includes any words or conduct by the police that they should know would likely elicit a response from the suspect. Voluntary admissions by the suspect, therefore, may be admissible regardless as to whether Miranda warnings have been provided prior to those admissions.

Question 21

Can a suspect waive his right to Miranda warnings?

Answer 21

Yes, a suspect can waive Miranda rights. The standard here is that the waiver must be knowing, voluntary, and intelligent.

Question 22

What is the effect of a suspect claiming his right to remain silent after having been read Miranda warnings?

Answer 22

If the suspect indicates that he wishes to remain silent, the police must cease questioning immediately, though the police can return later and question the suspect on an unrelated crime.

Question 23

What is the effect of a suspect claiming his right to counsel after having been read Miranda warnings?

Answer 23

Note the distinctions here between claiming a right to remain silent, and a right to counsel. Here, all questioning must cease until counsel has been provided unless the suspect then waives his right by initiating questioning. The request for counsel must be unambiguous. Questioning may not resume, even on an unrelated crime, until counsel has been provided.

Question 24

What is the effect of the government violating a suspect’s Miranda rights?

Answer 24

The exclusionary rule will generally exclude evidence (confessions) obtained in violation of the Miranda rule. However, such statements can still be used to impeach a defendant’s trial testimony.

Question 25

What is the “public safety” exception to the Miranda requirement?

Answer 25

The Supreme Court has allowed interrogation without Miranda warnings where it was reasonably prompted by a concern for public safety.

Question 26

What are some ways for the defendant to attack a pre-trial identification?

Answer 26

A defendant can attack a pre-trial identification by claiming that the identification violated his due process rights. The standard for such a violation is that the identification was unnecessarily suggestive and there was a substantial likelihood of misidentification. In addition, the defendant can claim that his right to counsel (6th Amendment) was violated, but this will only be true at a post-charge lineup, and not at a pre-charge lineup.

Question 27

If the defendant is able to prove that the pre-trial identification was unconstitutional, what is the result?

Answer 27

The remedy here is exclusion of any in-court identification, but a witness can still make such an identification if the in-court identification has an independent source from the unconstitutional pre-trial identification (for example, if the witness viewed the suspect at the scene of the crime).

Question 28

How do the rules discussed above differ for grand jury proceedings?

Answer 28

Miranda warnings are not required for witnesses subpoenaed to testify before a grand jury. In addition, witnesses do not have a right to counsel. Further, a grand jury may base indictment on evidence that would be excluded at trial (for example evidence that was seized in violation of the 4th Amendment).

Question 29

Throughout which stages of trial does a defendant have the right to counsel?

Answer 29

A defendant has the right to counsel (either privately retained, or provided by the state) during the following stages of trial: custodial police interrogation; postindictment interrogation; preliminary hearings to determine probable cause to prosecute (but not preliminary hearings to determine probable cause to detain); arraignment; post-charge lineups (but not pre-charge lineups); guilty please and sentencing; felony trials; misdemeanor trials but only if imprisonment is actually imposed; overnight recesses during trial; appeals as a matter of right (but not discretionary appeals); and appeals of guilty pleas.

Question 30

Can a defendant waive his right to counsel?

Answer 30

Yes, if the waiver is knowing and intelligent, and the defendant (in the opinion of the trial judge) is competent to defend himself.

Question 31

When is it proper to assert a 5th Amendment privilege against selfincrimination?

Answer 31

This privilege can only be asserted by natural persons, and not by corporations or partnerships. It can be asserted by any natural person (defendant, witness, etc.) if the answer to a question might tend to incriminate him. Note that if an individual fails to claim the privilege in a civil proceeding, he cannot later bar that evidence from a criminal proceeding.

Question 32

Can a prosecutor comment on a defendant’s choice to invoke his 5th Amendment privilege against self-incrimination?

Answer 32

Commenting here would be improper. If a defendant chooses not to testify based upon this privilege, not only may the prosecutor not comment on that choice, but the defense, upon timely motion, is entitled to have the judge instruct the jury that the failure to testify should not be held adversely against defendant.

Question 33

What is meant by “use and derivative immunity”?

Answer 33

Use and derivative immunity guarantees that a witness’s testimony and evidence located as a result of that testimony will not be used against the witness. The significance to note here is that if a witness is granted such immunity, he may be compelled to testify notwithstanding his 5th Amendment privilege against selfincrimination, as there is no threat of the witness incriminating himself.