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Flemings-Criminal Procedure > Definitions > Flashcards

Definitions Flashcards

1
Q

Fourth Amendment

A

Applicable to the states via the 14th Amendment.

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the persons or things to be seized.

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2
Q

Fifth Amendment

A

Applicable to the states via the 14th Amendment

No person shall be compelled in any criminal case to be a witness against himself.

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3
Q

Sixth Amendment

A

Applicable to the states via the 14th Amendment

In all criminal cases, the accused shall enjoy the right to have the assistance of counsel for his defense.

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4
Q

Eighth Amendment

A

Guarantees that no excessive bail shall be required. Most state constitutions have their own excessive bail clauses.

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5
Q

Search

A

Any governmental intrusion upon a reasonable expectation of privacy.

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6
Q

Three Elements for a Search with a Warrant to be Reasonable

A
  1. Warrant issued by a neutral magistrate.
  2. Warrant must describe the things to be siezed or persons to be searched. A clear lack of particularity invalidates both the warrant and a possible claim of good faith reliance
  3. Based on a sworn affidavit establishing probable cause to justify the search.
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7
Q

Probable Cause

A

Exists where the facts and circumstances within the affiant’s knowledge are sufficient to warrant a person of reasonable caution to believe that the evidence in question will be found.

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8
Q

Six Elements for an Electronic Surveillance Warrant to be Issued

A
  1. Conversations must be described with particularity
  2. Probable cause must exist that a crime has been or is being committed
  3. Wiretapping must be limited in time (30 day maximum initially)
  4. Suspects must be named.
  5. Police required to return to court showing what conversations were recorded; and
  6. Wiretap must terminate when desired information obtained.
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9
Q

Exceptions to Warrantless Searches

A

CAL SIPS PEPSI

  1. Consent
  2. Auto Search
  3. Licensing/Administrative Power
  4. Search Incident to Arrest
  5. Impoundment
  6. Plain View
  7. School Child
  8. Public Policy
  9. Exigent Circumstances
  10. Probation/Parolees
  11. Stop/Frisk
  12. Inventory
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10
Q

Three Elements to Search Incident to Lawful Arrest

A
  1. Search only allowed in defendant’s lunge span.
  2. Includes entire passenger compartment and any containers found.
  3. Full inventory search at police station is valid.
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11
Q

Three Elements Required for Plain View Exception

A
  1. Police legitimately on premises
  2. Police discovered objects that they have probably cause to believe are contraband or fruits or instrumentalities of crime.
  3. Evidence was in plain view
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12
Q

Stop and Frisk Exception (Terry Stop)

A

The stop and frisk right to detain and question is based on “articulable reasonable suspicion that criminal activity is afoot” when considering the totality of the circumstances.

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13
Q

Consent

A

An individual may consent to a search waiving his 4th Amendment rights but the decision must be voluntary and intelligent based on the totality of the circumstances.

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14
Q

Seizure

A

The exercise of dominion/control by the government over a person or thing.

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15
Q

Exclusionary Rule

A

Evidence obtained by an illegal search or seizure is not admissible in a criminal proceeding against the victim of the search or seizure as proof of guilt.

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16
Q

Standing

A

Defendant must establish that he was directly aggrieved by the illegal conduct.

17
Q

Fruit of Poisonous Tree

A

Applies to evidence seized as a direct result of the illegality and also to information or secondary evidence obtained indirectly which was obtained as a result of primary police misconduct.

Applies to

  1. Witnesses
  2. Statements
  3. Identification
  4. Information; and
  5. Objects
18
Q

Dissipation of Taint

A

Confessions resulting from an unlawful seizure may be admissible in some circumstances. Courts consider factors such as whether Miranda rights were given, the closeness in time of the detention and the confession, the purpose of the government action and the flagrancy of the government behavior.

19
Q

Independent Source Rule

A

If the police obtained evidence from an independent source not connected to the illegal search or seizure, the evidence is admissible.

20
Q

Inevitable Discovery Rule

A

If the police would have discovered the evidence regardless of their illegal conduct, it may be admitted.

21
Q

Four Elements to Miranda Warning

A
  1. Right to remain silent
  2. Any statement can and will be used against D.
  3. Right to have an attorney present
  4. Right to have an attorney appointed if D can’t afford one.
22
Q

Waiver of Miranda

A

Police can initiate questioning if suspect knowingly and intelligently waives his rights under the totality of the circumstances.

23
Q

Double Jeopardy

A

No person shall be subject, for the same offense, to be twice put in jeopardy. This is applicable to the states via the 14th Amendment.

24
Q

Four times when Double Jeopardy Attaches

A
  1. Jury Trial: When jury is impaneled and sworn in.
  2. Non-Jury Trial: When first witness sworn.
  3. When presiding judge ends trial.
  4. Commencement of juvenile proceedings.
25
Q

Three times when Double Jeopardy does not Attach

A
  1. Hung juries
  2. Mistrials
  3. Dual sovereignties
26
Q

Right to Counsel at Trial and Non-Trial Proceedings

A

Trial Proceedings: Counsel must be available in all felony prosecutions plus any other prosecution (misdemeanor) as to which there is an actual loss of liberty.

Non-Trial Proceedings: The defendant is entitled to assistance of counsel at any critical stage of the proceeding where the substantial rights of the accused may be affected.

27
Q

Right to Effective Counsel

A

The 6th Amendment provides the right to be represented by effective counsel. The issue is whether the counsel’s representation fell below an objective standard of reasonableness.

Defendant must show:

  1. Deficient performance by counsel; and
  2. But for the deficiency, there is a reasonable probability that the result of the proceeding the result would have been different.
28
Q

Waiver of Right to Counsel

A

D must be advised of the right and be competent to knowingly, intelligently and voluntarily abandon the right and the trial judge must determine the competency of the defendant’s ability to waive.

29
Q

Right to Confrontation

A

The 6th Amendment provides that “In all criminal proceedings, the accused shall enjoy the right to be confronted with the witnesses against him.” Confrontation is deemed a fundamental right and is applicable to the states under the Due Process Clause of 14th Amendment.

The accused must have a right to be physically present in the courtroom during the course of the trial.

30
Q

Confrontation Clause and Hearsay Evidence

A

Out-of-Court statements are not admissible unless

1) they are not testimonial and they are reliable hearsay; or;
2) there will be in-court confrontation; or
3) the witness is truly unavailable and the defendant’s counsel and an opportunity to cross-examine at a prior hearing.

31
Q

Testimonial Evidence

A

Testimony given at a preliminary hearing, grand jury, or former trial, as well as statements taken by police in the course of interrogations. The primary purpose is to produce the equivalent of testimony for later use at trial.

32
Q

Four considerations that the court looks at if the defendant has been deprived of a speedy trial

A

LRAP

  1. Length of delay
  2. Reason for the delay
  3. Assertion of the right; and
  4. Prejudicial impact.
33
Q

Right to Trial by Jury

A

The 6th Amendment Amendment guarantees a right to a jury trial only where a serious offense is charged and a serious offense is one which entails a potential sentence of more than six months.

34
Q

Jury size (Federal and state)

A

Federal: Twelve person jury and vote must be unanimous

State: Minimum of six jurors and vote must be unanimous. However, if twelve person jury, a non-unanimous vote can convict.

35
Q

Cruel and Unusual Punishment

A

Cruel and unusual punishment is prohibited if it is excessive (disproportionate to the crime) and barbaric (too cruel to be appropriate punishment for any crime).

Flemings-Criminal Procedure (4 decks)

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