KS: Crim Pro Flashcards
When you go to trial without raising defeats in the pleadings, you generally are held to have waived most defected–but when the information doe not charge a crime, there is an exception;
Presumption that charging documents is sufficient
Post-trial motion to arrest judgment
allows a D who is convicted to challenge the sufficiency of the information for up to 10 days after the verdict or conviction is entered.
On appeal, charging the document that was not challenged on appeal is viewed using a common-sense approach instead of technical approach–
the longer you wait to challenge a charging document, the stronger the presumption that it is sufficient
4th A– Search and Seizure: Eight Steps to Determining search and seizure issues
1) is there government conduct?
2) did the search or seizure invade an individual’s reasonable expectation of privacy?
3) was the search authorized by a facially valid warrant?
4) Does an officer’s good faith save the defective search warrant?
5) Was the search warrant properly executed by the police?
6) Is the search valid under any of the eight exceptions to the warrant requirement?
7) Can the prosecutor use evidence gathered in an unconstitutional search and seizure against the D in court?
8) Is any of the evidence introduced by the prosecution fruit of the poisonous tree, and if so, is the evidence admissible?
4th A-S&S: Is there government conduct?
- publicly paid police, on or off duty
- private citizens: only if acting at direction of police
- privately paid police: only if deputized with power to arrest
4th A- S&S: did the S or S invade an individual’s reasonable expectation of privacy?
- protected areas: persons, houses, papers, affects, homes, and curtilage of homes
- unprotected items: paint scrapings on outside of car, account records held by banks, anything that can be seen from airspace, garbage at curb for collection, voice, open fields, handwriting, odors from car or luggage
- person has NO expectation of privacy in DNA after it has been lawfully obtained by the police
4th A - S & S: challenging the search
to challenge the legality of the search, the person’s individual privacy rights must be invaded, not those of a third party
owners of premises searched
always have standing
residents of the premises searched
always have standing
overnight guests of the premises searched
always have standing as to areas where guests would be expected to access
individuals using someone else’s residence for business purposes only
never have standing
owners of the property seized
have standing if they have a reasonable expectation of privacy in the area from which it was seized
passengers in cars
only have reasonable expectation of privacy in the item searched or seized (eg. purse)
4th A - S & S: Was the search authorized by a facially valid warrant?
Facially valid warrant requires probably cause and particularity
Probable Cause
Fair probability that contraband or evidence of crime will be found in the area searched
- hearsay is admissible for this purpose
- police may rely on information obtained through an informant’s tip even if the information is anonymous– the sufficiency of the informant’s tip rests on corroboration by the police of enough of the tipster’s information to allow the magistrate to make a common sense practical determination that probable cause exists
Particularity
Warrant must specify the place to be searched and the items to be seized
- the particularized description is contained in an affidavit supporting the warrant, the affidavit must be incorporated explicitly into the warrant itself
Warrant that is invalid due to absence of PC or particularity can still be saved if
the officer relied on it in good faith
4th A - S & S: Does an officer’s good faith save the defective search warrant?
An officer’s good faith overcomes constitutional deficits in PC and particularity EXCEPT if:
- affidavit supporting the warrant is so egregiously lacking in PC that no reasonable officer would have relied on it
- warrant application is so egregiously lacking in particularity that no reasonable officer would have relied on it
- officer or DA lied or misled the magistrate who issued the warrant
- magistrate who issued the warrant was biased, meaning that he had wholly abandoned neutrality.
4th A - S & S: Was the search warrant properly executed by the police?
- did the officer exceed the copy of warrant? Can be places searched and things searched for
- did the police comply with the knock and announce rule? Police are required to knock to announce their presence and purpose before forcibly entering the place to be searched, unless doing so would be futile, dangerous, or would inhibit investigation
- warrant must be executed within 96 hours of its issuance–may be executed any time day or night and officers may use all reasonable force to execute it
4th A - S & S: is the search valid under any of the eight exceptions to the warrant requirement (escapist)?
1) Exigent circumstances
2) Search incident to arrest
3) consent
4) automobile
5) Plain view
6) inventory
7) special needs
8) Terry stop and frisk
Exigent circumstances: Evanescent evidence
Evidence that would dissipate or disappear in the time it would take to get a warrant
Exigent circumstances: hot pursuit
allows police to enter a suspect’s home or that of a third party into which he fled to look for him if the police are in hot pursuit; any evidence of a crime discovered during hot pursuit in plain view is admissible.
Search Incident to arrest
arrest must be lawful; allowed to ensure officer safety and need to preserve evidence
- search must be contemporaneous in time and place with arrest
- can search wingspan of D– includes passenger compartment of car, including closed containers, but not the trunk so long as D was a recent occupant of the car
Consent
must be voluntarily and intelligently given
- the fact that police do not tell someone that he has right to refuse does not make consent invalid
Apparent authority
if police obtain consent to search from someone who lacks authority to grant it, the consent is still valid under the 4th A if the officer reasonably believes that the consenting party had actual authority
- if premises are shared, any party has authority to consent to search of the premises
- if co-tenants with equal rights to premises, an objecting party will be able to prevent the search as to areas over which they share dominion and control if both parties are present
Automobile exception
Police need PC to believe that contraband or evidence of crime will be found in the automobile
- police can search passenger cabin and the trunk and may open any package, luggage or other container that may reasonably contain the items for which there was PC to search
- the smell of ether emanating from vehicle or a house does NOT justify a warrantless search
Plain view
Three req’s
1) lawful access to place from which the item can be plainly seen
2) lawful access to item itself
3) criminality of item is immediately apparent
Inventory
happens when arrestee are booked into jail or when vehicles are impounded.
- searches are constitutional if: regulations governing them are reasonable in scope and the search itself complies with these regulations
Special Needs
- Random drug testing–allowed for railroad employees following accident, customs officials responsible for drug interdiction and public school children in extracurricular activities
- probationers’ homes: warrantless searches are permitted where police have reasoned grounds to believe that contraband is present
- government employees’ desks and files: warrantless searches are permitted to investigate work-related misconduct
- students’ effects in public– allowed to investigate violations of school rules
- border searches– neither citizens nor non-citizens have 4th A rights at the border with respect to routine searches of persons and effects
- KS allows a police officer to conduct a public safety stop on a vehicle is specific and articulable facts support a safety inquiry
Terry Stop and Frisk:
Brief detention or seizure for purposes of investigating suspicious conduct, pat down of outer clothing for weapons or contraband is allowed
- requires specific and articulable facts that make an officer believe that criminal activity is present
- if an officer has reasonable grounds to believe that a drive is operating a vehicle under the influence of drugs or alcohol, he may administer a blood, breath, urine or other test, even if the driver is unconscious– driver has no right to consult an attorney but driver must be warned that refusal to the the test can result in one year license suspension and that test may be used against the driver at trial – driver must be advised that she may consult an attorney after the test and may secure an additional testing at her expense.
4th A - S & S: Can the prosecutor use evidence gathered in an unconstitutional search and seizure against the defendant in court?
- Exclusionary Rule
Evidence obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated
- the evidence may be used to impeach the D’s testimony on cross
- rule does NOT apply to: grand jury proceedings, civil proceedings, parole revocation hearings
4th A - S & S: Can the prosecutor use evidence gathered in an unconstitutional search and seizure against the defendant in court?
-Knock and announce
Knock and announce violations do not require suppression of evidence subsequently discovered
4th A - S & S: Can the prosecutor use evidence gathered in an unconstitutional search and seizure against the defendant in court?
-Invalid warrant
An officer’s reasonable mistake in executing an invalid warrant, if the warrant was facially valid, does NOT require suppression of the evidence
4th A - S & S: Is any of the evidence introduced by the prosecution fruit of the poisonous tree, and if so, is the evidence admissible?
Fruit of Poisonous Tree:
Evidence derived by exploiting prior unconstitutional conduct; inadmissible in prosecution’s case in chief
Can nullify fruit of poisonous tree by
Showing a break in the causal chain between the original illegality and the criminal evidence that is later discovered:
- independent source: applies where there is a source for discovery and seizure that is distinct from the original illegality
- inevitable discovery: applies when evidence would necessarily be obtained lawfully by police
- Attenuation doctrine: admits derivative evidence where D’s free will has been restored through a passage of time and intervening events
Wiretapping
Need a warrant, which requires:
- PC
- persons to be heard
- conversations
- time: must be a strictly limited time period
Eavesdropping
Unreliable ear doctrine: if you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no fourth amendment claim; you assume the risk that the other party will not keep your conversation private.
Law of arrest:
An arrest occurs when the police take a person into custody against his will for interrogation or prosecution
- requires PC
- custodial arrest permitted for any offense, even one punishable by a monetary fine only
- don’t need warrant to arrest in public but do need one to arrest someone in home absent emergency
De facto arrest
when police compel person to come to station for fingerprinting or questioning
Common enterprise theory
in a traffic stop, where a police officer discovers evidence of crime that suggests a common unlawful enterprise between the driver and his passengers, the officer may arrest any or all of them based on reasonable inference of shared dominion and control over the contraband.
Confessions: three federal challenges to a confession:
1) due process violation under 14A
2) 6th A right to counsel
3) 5th A Miranda doctrine
Due Process violation under 14A
Basis: involuntariness–confession is the product of police coercion
6th A right to counsel
express constitutional guarantee, attaches when D is formally charged with crime
- right is offense specific – applies only to the charges files against the person–provides no protection for other uncharged criminal activity.
5th A Miranda Doctrine
Implied rights ground in self-incrimination charge
- IN KS: police officer may ask suspect where his weapon is before giving Miranda warnings for his own safety
Miranda: four key rights
1) remain silent
2) anything you say will be used against you
3) right to an attorney
4) right to have attorney appointed
Miranda warnings are necessary before
Custodial interrogation:
- custody: the atmosphere is characterized by police domination and coercion such that his or her freedom of action is limited in a significant way
- Interrogation – any conduct the police knew or should have known was likely to elicit a criminal response
- Miranda does not apply to incriminating statements made spontaneously, since they are not part of interrogation
Miranda does not apply if
custodial interrogation is prompted by an immediate concern for public safety– any incriminating statements are admissible against the suspect
Waiver of Miranda
Knowing and intelligent: suspect must understand the nature of the rights and the consequences of abandoning them
- voluntary: cannot be the product of police coercion
- Prosecution bears the burden of proof by a preponderance of the evidence to show that a waiver was valid
Miranda: Asserting the right
Police must scrupulously honor the request but police can obtain a waiver after an assertion of the right
- once the right is asserted, all questioning must cease UNLESS initiated by the suspect
Miranda: Basics
Not offense specific–applies to all topics
Harmless error standard for evidence entered in violation of miranda
Statement obtained in violation of Miranda
can be used to impeach D’s testimony on cross, but cannot be used to impeach a third party’s testimony.
Object obtained in violations of Miranda
the physical fruits of unwarned but voluntary statements are not suppressed
- If a statement is inadmissible due to a Miranda violation – subsequent statements after a Miranda waiver are admissible so long as the initial waiver ws not obtained through the use of inherently coercive police tactics offensive to due process.
Pre-trial identification: three types
- lineups
- show ups
- photo arrays
There is no 5th A right to counsel at pre-trial identification but there is a
6th A right at lineups and show ups that take place after formal charging
- pre-trial identification procedure violates the due process clause of the 14th A when it is so unnecessarily suggestive that there is substantial likelihood of misidentification
Pre-trial identification: Remedies for constitutional violations
- exclusion of witness’ in court identification
- prosecution can avoid exclusion of ID if the in court ID is based on observations of the suspect other than the unconstitutional lineup, show up, or photo array
- prosecution can use witness’ opportunity to view D, the certainty of the identification and the specificity of the description provided to police
Grand Juries– issue indictments
private proceedings
most states don’t use a charging process
KANSAS allows for investigatory inquisitions to aid with creating an information which is a one-person grand jury— no defense counsel may be present
Pretrial Detention – standard of proof
Government needs probable cause to bind a D over for trial and to detain him in jail before trial
Detention hearings
a hearing to determine PC– gerstein hearing– is unnecessary to justify pretrial detention if –
- a grand jury has issued an indictment or a magistrate has issued a warrant
First appearance
soon after arrest, a D must be brought before a magistrate who will advise him of his rights, set bail, and appoint counsel if necessary
- any D charged with a felony has a right to a preliminary hearing within 10 days of arrest or initial appearance
- Decisions regarding bail are immediately appealable – bail may be forfeited if the D fails to appear for his trial date.
Trial Rights – D responsibilities
Defendant must give notice of intent to raise an alibi as a defense at least 7 days before trial, must give notice of intent to raise defense of mental disease or defect 30 days after arraignment
Trial Rights - Grady Rule
Prosecutor must disclose all material exculpatory evidence to a criminal D
- defense only needs to turn over evidence that it actually intends to use at trial
Trial Rights: Judge
Judge must have no financial stake in outcome and no actual malice toward D
Trial Rights– right to jury trial
When the authorized sentence exceeds 6 months
- misdemeanor cases are tried to the court unless the D demands a jury trial
Trial Rights: Jury
Fewest number of jurors allowed in criminal trial – 6
- jury verdict must be unanimous only if 6 are used–> if 12 are used, it doesn’t have to be unanimous
- if felony prosecution –must be 12 jurors UNLESS all parties agree otherwise
- the pool from which the jury is drawn must represent a cross-section of the community
Trial Rights– preemptory strikes
both sides permitted to exclude jurors without stating their reasons for doing so but cannot be used by either side to exclude prospective jurors on account of race or gender
Trial Rights– face witness
D’s right to confront adverse witnesses under the confrontation clause does not apply where face to face confrontation would contravene important public policy concerns
Trial rights– rights to an effective assistance of counsel
Successful claim requires: counsel’s performance was deficient, and but for the deficiency, the outcome would have been different
– unless there is some colorable argument that the D is not guilty, always deny relief under an ineffective assistance of counsel claim.
Trial Rights: Jury Instructions
Eyewitness cautionary instruction should be given advising the jury about the factors that should be considered in weighing the credibility of the eyewitness identification
- when murder is committed during a felon, the prosecution does not have to instruct the jury on all lesser included offenses if the evidence of the underlying felony is strong
- instructions will be upheld on appeal unless they are clearly erroneous and were the cause of the guilty verdict
Guilty Pleas and Plea Bargaining
The court taking the plea must find a factual basis for the plea– no guilty plea for drunk drivers if that would let them avoid the mandatory penalty
Four requirements of the plea-taking colloquy judge must issue to D:
1) nature of charge
2) maximum authorized sentence and any mandatory minimum sentence
3) that D has the right to plead not guilty and proceed to trial
4) by pleading guilty, D is waiving trial and will proceed directly to sentencing
D may withdraw a guilty plea after sentencing if:
- problem with plea-taking colloquy
- there is jurisdictional defect
- D prevails on ineffective assistance of counsel claim; or
- prosecutor failed to fulfill his part of the bargain: guilty pleas are treated like contracts
Punishment: 8th A prohibitions
No criminal punishments that are grossly disproportionate to the seriousness of the offense committed
- death penalty statutes that create an automatic category for the imposition of the death penalty
Punishment: Jurors/ Death penalty
jurors must be allowed to consider all potentially mitigating evidence in deciding whether to impose the death penalty
Can’t impose death penalty against:
- mentally handicapped Ds
- presently insane Ds
- minors at the time of the crime – under 18
Double Jeopardy— Attaches:
- when jury is sworn in jury trial
- when first witness is sworn in bench trial
- when the court unconditionally accepts the guilty plea
- does NOT apply to civil proceedings
Double Jeopardy– same offense requirement
must be same offense of jeopardy to apply
- two offenses are not the same offense if each has an element that the other does not
- prosecution for a greater offense precludes later prosecution for lesser included offenses – prosecution for lesser included offenses precludes prosecution for the greater offense
Double Jeopardy – same sovereign requirement
DJ bars retrial for the same offense by the same sovereign only
- State and fed govt are not same sovereign
- states and municipalities are within the same sovereign
- KS DOES NOT follow the separate sovereign doctrine– DJ bars a second prosecution for the same conduct for which the D was prosecuted in a fed district court or a sestet state trial court
Four exceptions to DJ– retrial permitted if
- hung jury
- mistrial for manifest necessity – hospitalization of D in middle of trial
- retrial after successful appeal
- state cannot appeal from a judgment of acquittal
- breach of plea bargain by D
5th A privilege against compelled testimony
Any natural person may assert the right
- can be asserted in any proceeding where individual testifies under oath
- but it must be asserted at the first opportunity or else it is lost forever
- does not apply to state’s use of our bodies such as blood or urine samples
- prosecution cannot comment on the use of the right
Three ways to eliminate the 5th A privilege
- prosecutorial grant of use and derivative use: prosecution can’t use testimony or anything derived format to convict you– but can be convicted based on evidence obtained prior to grant of immunity
- D taking the stand– D waives right to plead the 5th as to anything properly within the scope of cross-examination
- SoL: privilege is unavailable if the SoL has run on the underlying crime because the person could not expose himself to criminal prosecution
