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2 - Criminal Procedure > Full Set > Flashcards

Full Set Flashcards

1
Q

Actors that the 6th amendment applies to

A

gov’t action

private persons acting as gov’t agent

defense counsel (whether private or public) are gov’t actors

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2
Q

troubling basics about the general limits of the 4a on police…

A

can approach anyone, tail, canvass, ask questions

it just can’t escalate to the police preventing the civilian from moving or leaving

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3
Q

seizure defintion

A

officer by means of …

  1. physical force or show of authority …
  2. intentionally trerminates or restrains …
  3. the subject freedom of movement.
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4
Q

4th Amendment Language

A

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 place to be searched, and the persons or things to be seized.

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5
Q

Was it a seizure?

A

would a reasonable person feel free to disregard the officer?

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6
Q

types of seizures

A
  1. Stop & frisk/terry stops
  2. traffic stops
  3. arrests
  4. warrants
  5. warantless arrests
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7
Q

Stop & Frisk

A

officer can stop indi when he has REASONABLE SUPSICIAL, BASED ON ARTICULABLE FACTS, to believe the suspect is or is about to be engaged in criminal behavior.

can do a pat down but can’t do a search for evidence

if pat down results in gun it can be seized and if SUSPICION or PROBABLE CAUSE develops officer can make arrest

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8
Q

Traffic stops

A

can stop and pat down anyone so long as they are doing it to everyone

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9
Q

arrests

A

requires PROBABLE CAUSE to believe that arrested individual has committed a crime (can be done w/o a crime)

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10
Q

pretext arrest

A

as long as the police have probably cause to believe an individual committed CRIme A, police may arrest that individual on the basis of a hunch that there is another crime involved

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11
Q

warrants

A
  1. issued by magistrate
  2. based on a finding of PROBABLE CAUSE to believe
  3. NAMED individual has
  4. committed a particular crime

allows officers to enter dwelling

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12
Q

when can officers enter a dwelling without a warrant?

A
  1. exigent circumstances

2. consent

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13
Q

warrantless arrests

A

officer has PROBABLE CAUSE to believe the individual committed a crime b/c he saw it committed or someone told him it was commited (but then only for a felony)

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14
Q

Kinds of searches incident to arrest

A
  1. lawful arrest - contemporaneous search of the person and the immediate area surrounding him to: (1) protect officers’ safety and public safety; and (2) to prevent the destruction of evidence. - can be used against D
  2. arrest on street - can search his person
  3. arrest at home - suspect & immediate area
  4. car - passenger compartment as long as supsect has access (b/c then safety concern is cured)
  5. inventory searches (tricksy) - impounded cars can be searched for inventory
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15
Q

search definition

A
  1. gov’t conduct violates a

2. reasonable (obj) expectation of privacy

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16
Q

places where you would have a reasonable expectation of privacy

A

homes, hotel room, office, backyard (curitilage) luggage

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17
Q

places where you would NOT have a reasonable expectation of privacy

A

public streets, open fields, garbage, abandoned property

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18
Q

Warrant requirement for a search (elements)

A
  1. issued by magistrate
  2. ProbCau
  3. items sought are FRUITS, INSTRUMENTALITIES, or EVIDENCE of crime
  4. describe place 7 property

otherwise excluded

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19
Q

warrant requirement exceptions

A

Exigent circumstances

Search incident to arrest

Consent

Automobiles

Plain view

Evidence obtained from administrative searches

Stop & frisk

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20
Q

exigent circumstances (exception)

A

hot pursuit or immediate danger, so long as officers didn’t create the exigent circumstances

DUIs don’t count

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21
Q

search incident to lawful arrest (exception)

A

warrant is unnecessary, search is limited to thing within reach of D, but if crime is serious they can take DNA

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22
Q

consent (exception)

A

officer is not required to inform the subject that he has a right to refuse

also, 3rd parties can consent

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23
Q

automobiles (exception)

A

PC contraband, can search those parts of vehicle, & containers inside, but not other areas

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24
Q

plain view (exception)

A

if they are legally present and suspect (mary jane example)

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25
Q

evidence obtained from admin searches

A

admin warrants like health inspections no PC necessary

warrantless admin searches conducted for noninvestigative purpose like TSA

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26
Q

5th amendment

A

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

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27
Q

scope of 5th privilege

A

people (not corps)

testimonial not physical ev

incriminating testimony

any proceeding

cured by immunity

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28
Q

statements made by an individual (5th)

A
  1. to the gov’t
  2. inadmissable w/o Mirranda
  3. custodial
  4. interrogation (inducement) doesn’t include routine questions or volunteered info
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29
Q

miranda warnings (5th)

A
  1. silent
  2. statements made against her can be used
  3. counsel
  4. right to public defender ($)

must UNDERSTAND

30
Q

public safety exception (5th)

A

when public safety at risk Miranda not necessary

31
Q

interrogation tactics (5th)

A
  1. voluntary confessions
  2. statements from threat are inadmissible
  3. can be product of deceit
32
Q

consequences of violating 5th w/ voluntary statements

A

NEVER admissible & evidence obtained b/c of it is presumed to be inadmissible

33
Q

consequences of violating 5th w/ involuntary statements

A

only for impeachment purposes, but evidence gained from that statement is admissible

34
Q

Right to remain silent

A

invoke, but after a reasonable amount of time the police can come back and question

35
Q

right to counsel

A

once invoked police have to stop, D can reinitiate

36
Q

6th amendment

A

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

37
Q

6th right to counsel vs 5th

A

does not have to be invoked like 5th

applies to noncustodial interaction unlike 5th

38
Q

When does 6th apply?

A

felony prosecutions & misdemeanor prosecutions where jail time is imposed

does not apply to - lineups, witnesses looking at photo arrays, discretionary appeals & post conviction (habeas) proceedings

39
Q

D’s rights at photo array

A

neither D or his lawyer has right to be present, but police must turn over the array to D

40
Q

D’s rights at pre-indictment lineups

A

D no right to counsel

41
Q

D’s rights at post-indictment lineups

A

D has right to counsel

42
Q

lineup evidence at trial

A

so long as not impermissibly suggestive

43
Q

in-court ID

A

if the prosecution can establish by clear and convincing evidence that the witness would have ided the D even w/o the suggestive lineup, the court will permit the in-court id even if it suppresses the results of the lineup

44
Q

fruit of the poisonous tree definition

A

the exclusionary rule applies not only to the evidence obtained in violation of the Constitution, but also to evidence obtained as a result

45
Q

fruit of the poisonous tress exceptions

A
  1. knock & announce - bursting in to get ev is ok
  2. inevitable discovery - thru lawful means
  3. independent source - same from someone else
  4. attenuation in causal chain
  5. good faith - officers relied on what they thought was good law or what they thought was a valid warrant
    ~6. negligence, maybe
46
Q

4th decision tree

A

Was there a search? Was there a seizure?

If yes, was there probable cause?

If no, then violation.

Does the exclusionary rule apply?

47
Q

5th decision tree

A

Was there a 5th amendment interrogation violation?

Was D in custody?

Was there an interrogation?

Was D given warnings?

Did D invoke?

Does the exclusionary rule apply?

48
Q

6th decision tree

A

Did 6th right to counsel attach?

Was this a critical stage?

Does the exclusionary rule apply?

49
Q

If the question is whether a conviction should be overturned (not just suppressed), apply:

A

the harmless error rule: If this piece of evidence had not been let in, would it make a difference in the outcome?

50
Q

Pretrial procedures list

A
  1. methods of determing PC (fed need indictment under 5th, so states might not need it)
  2. grand jury
  3. D’s competence to stand trial
  4. bail (18th can’t be excessive, no right, usu not for flight risks or dangerous, presumption pretrial & against post before appeal)
  5. guilty pleas
51
Q

grand jury proceedings
prosecutorial duty
defendants right
witness rights

A

hearsay is admissible

prosecution - no duty to present exculpatory ev

D’s no right to be present or call witness

Witnesses no right to bring counsel into room

SECRET

just need a majority for indictment

52
Q

D’s competence to stand trial (grand jury stage)

A

whether D comprehends the nature of the proceedings against him and can assist his lawyer in defending the case

53
Q

guildy pleas (grand jury stage)

A

waives rights

  1. D must knowingly and
  2. intelligently waive these rights

counsel

plea allocution (constitutionally required)

  1. judge informs of right & makes sure he understands
  2. possible sentences
  3. no force or threats
  4. factual bases
  5. immigration consequences
54
Q

jury trial

A

6th for serious offenses (punishment of >6mo)

12 fed jurors unanimous not the same in states

remove jurors for cause or preemptory challenge

55
Q

speedy trial issues

A

SOL when crime was committed (at end of conspiracy)

due process of 5th
speedy trial of 5th

factors:

  1. length
  2. reason
  3. did D assert right?
  4. prejudice to D
56
Q

confrontation right

A

6th

Crawford - if statement is testimonial barred if declarant is unavailable & D had no prior opportunity to X

57
Q

Bruton Category

A

D’s own statements are always admissible against him (but not co-defendants, but yes to co-conspirators)

58
Q

BoP & Defenses

A

beyond reasonable doubt

affirmative defenses must be asserted: mistake, entrapment, self-defense, insanity

59
Q

Brady doctrine

A

prosecution must turn over all material (if disclosure could change the outcome of the proceeding) exculpatory evidence to defense - 1 he is not guilty & 2 - impeach prosecution’s withness

60
Q

prosecutor cannot:

A
  1. brady doctrine
  2. knowingly present false testimony
  3. contact D w/o counsel
  4. can’t comment on D’s right/failure to testify, but can comment on pre-interrogation silence w/o invocation of right to remain silent

misconduct could require retrial or reversal, or discipline to prosecutor

61
Q

effective defense counsel

A

6th

conflicts of interest (multiple Ds)

62
Q

Effective Assistance Test

A

Strickland test

  1. did D’s counsel’s performance fall below the wide range of objectively reasonable conduct that lawyers might engage in? (must outright flunk)
  2. Did that prejudice D b/c if he had performed differently the outcome would have been different?

cases that go to trail - D must show REASONABLE PROBABILITY that outcome different
guilty pleas - D must show would not have pleaded guilty

63
Q

Remedy for ineffective counsel

A

Conviction REVERSAL

64
Q

choice of counselt

A

rich win

if person denied counsel they wanted and convicted he can have his conviction reversed?

65
Q

Constitutional provisions governing sentencing

A

cruel and unusual punishments 8th
double jeopardy 5th
apprendi line of cases under 6th

66
Q

cruel and unusual

A
  1. Length - free reign except for juveniles homicide
  2. capital punishment - victim must have died, >18, mentally retarded, insane at time
  3. 8th amendment has been stretch to protect inmates who don’t get the medical care they need
67
Q

double jeopardy

A

protection against prosc for same offense after (1) acquittal or (2) conviction, or (3) multiple prosecutions or punishments for the same offense

Blockburger test - whether each statutory provision requires proof of an element that the other does not

2 states can

68
Q

apprendi doctrin

A

sentence enhancement based on prior criminal convictions need not be charged in the case that results in the higher sentence

69
Q

attachment of 2x j

A

when jury is sworn in, or when first witness is sworn in in bench trial

70
Q

end of jeopardy

A

aquittal - no retrial, prosecution cannot appeal an acquittal

conviction - a reversed conviction can lead to retrial unless reversal was based on insufficiency of evidence

mistrial - (1) manifest necessity - D can be retried (deadlock or D counsel misconducts) OR (2) no manifst necessity can’t be retried

71
Q

TIPS

A
  1. focus on 4th and exceptions to warrant requirement
  2. state almost always wins
  3. probable cause vs reasonable suspicion standards (stop & frisk)
  4. Ds rights are usually very limited

2 - Criminal Procedure (2 decks)

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