Kaplan Criminal Procedure Foundation Slides

Question 1

Criminal Procedure - Coverage Areas

Answer 1

4th Amendment

• Standing
• Probable Cause
• State Action
• Warrant Requirements
• Warrantless Searches
• Dog Sniffs

5th and 6th Amendment

• Right to Counsel
• Right to Remain Silent
• Miranda
• Massiah
• Double Jeopardy

Question 2

Checkpoint Items for Criminal Procedure

Answer 2

Pretrial Issues
    - Lineups 
    - Photo Arrays
Trial Issues
    - 4th Amendment 
    - 5th Amendment 
    - Right to Counsel
Post Conviction Issues 
    - Sentencing 
    - Appeals

Question 3

Approach to Criminal Procedure

Answer 3

1- Standing - Possessory interest in place or thing?
2- State Action - is there a government actor involved?
3- Timing - pre or post indictment or arrest
4- Requirements - reasonable suspicion, probably cause
5- Exceptions

Question 4

Presumptions in Criminal Procedure

Answer 4

• Shifts the burden of production to the opposing party
• Must be accepted as true, unless rebutted
• A jury instruction creating a presumption as to an element of the crime charged is unconstitutional and violates due process

Question 5

Basis for Appeals, are generally,

Answer 5

Right to Jury Trial in criminal procedure when imprisonment for more than 6 months is possible.

Right to Counsel arises for felonies or misdemeanors where imprisonment is actually imposed

Question 6

Reasonable Expectation of Privacy under criminal procedure implies that

Answer 6

if there is reasonable expectation of privacy, then the police intrusion constitutes a search. If there is no reasonable expectation of privacy, then intrusion is not a search

Question 7

Standing in criminal procedure

Answer 7

Defendant must have a possessory interest in the premises searched or in the items seized

Question 8

Search under Criminal Procedure requires

Answer 8

1. Probable Cause
2. Warrant requirement, unless an exception applies
   
   • Stop and frisk
   • Search incident to lawful arrest
   • Plain view
   • Automobile
   • Consent
   • Hot pursuit
   • Exigent circumstances

Question 9

Inventory Search is

Answer 9

A routine search to protect the arrestee’s personal items and to safeguard the police from any claims of theft

Question 10

Curtilage

Answer 10

the land immediately surrounding a house or dwelling, including any closely associated buildings and structures, but excluding any associated “open fields beyond.”

Question 11

Open Fields Doctrine

Answer 11

• Applies to the area beyond the “curtilage”
• There is No Reasonable Expectation of Privacy
• No 4th Amendment protection
• A view of “open fields” is NOT a search

Question 12

Consent Search

Answer 12

Consent extends to all areas where a person with an apparent equal right to use or occupy the property would have joint access or control

Question 13

Consent Search -applies to

Answer 13

Co-habitant;
Shared area;
Child;
Burden on Police

Question 14

Dog Sniff

Answer 14

A dog sniff of the exterior of a lawfully stopped vehicle does NOT constitute a search. A positive canine alert provides probable cause to search

Question 15

Warrant Requirements

Answer 15

• A search warrant may be issued only by a neutral, disinterested magistrate
• Search warrants require probable cause, oath or affirmation, and a particular description of the place and object of the search to meet constitutional requirements
• A sworn statement of facts showing probable cause to search a particular place for particular items.
• The standard for probable cause is objective, meaning that there is sufficient information to persuade a reasonable person that a certain place contains evidence of a crime

Question 16

Protective Sweep

Answer 16

• A sweep of the area immediately around the arrestee, and the path, walk or hallways directly to and from and the the entrance to the residence
• The purpose is to ensure the security of law enforcement officers
• The protective sweep must be limited to a cursory inspection of places where a person may hide, and last no longer than is necessary to dispel the reasonable suspicion of danger

Question 17

Miranda

Answer 17

• Law enforcement officials are required to administer warnings in order to protect an individual who is in custody and subject to direct questioning or its functional equivalent
• Prevents against violations of individual’s Fifth Amendment right against compelled self-incrimination

Question 18

6th Amendment Right to Counsel

Answer 18

• Prevents deliberate elicitation of incriminating statements once formal charges have been filed (critical stages)
• Actual waiver required

Question 19

Double Jeopardy

Answer 19

The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted