KS: Crim Pro

Question 1

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;

Answer 1

Presumption that charging documents is sufficient

Question 2

Post-trial motion to arrest judgment

Answer 2

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.

Question 3

On appeal, charging the document that was not challenged on appeal is viewed using a common-sense approach instead of technical approach–

Answer 3

the longer you wait to challenge a charging document, the stronger the presumption that it is sufficient

Question 4

4th A– Search and Seizure: Eight Steps to Determining search and seizure issues

Answer 4

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?

Question 5

4th A-S&S: Is there government conduct?

Answer 5

• 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

Question 6

4th A- S&S: did the S or S invade an individual’s reasonable expectation of privacy?

Answer 6

• 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

Question 7

4th A - S & S: challenging the search

Answer 7

to challenge the legality of the search, the person’s individual privacy rights must be invaded, not those of a third party

Question 8

owners of premises searched

Answer 8

always have standing

Question 9

residents of the premises searched

Answer 9

always have standing

Question 10

overnight guests of the premises searched

Answer 10

always have standing as to areas where guests would be expected to access

Question 11

individuals using someone else’s residence for business purposes only

Answer 11

never have standing

Question 12

owners of the property seized

Answer 12

have standing if they have a reasonable expectation of privacy in the area from which it was seized

Question 13

passengers in cars

Answer 13

only have reasonable expectation of privacy in the item searched or seized (eg. purse)

Question 14

4th A - S & S: Was the search authorized by a facially valid warrant?

Answer 14

Facially valid warrant requires probably cause and particularity

Question 15

Probable Cause

Answer 15

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

Question 16

Particularity

Answer 16

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

Question 17

Warrant that is invalid due to absence of PC or particularity can still be saved if

Answer 17

the officer relied on it in good faith

Question 18

4th A - S & S: Does an officer’s good faith save the defective search warrant?

Answer 18

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.

Question 19

4th A - S & S: Was the search warrant properly executed by the police?

Answer 19

• • 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

Question 20

4th A - S & S: is the search valid under any of the eight exceptions to the warrant requirement (escapist)?

Answer 20

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

Question 21

Exigent circumstances: Evanescent evidence

Answer 21

Evidence that would dissipate or disappear in the time it would take to get a warrant

Question 22

Exigent circumstances: hot pursuit

Answer 22

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.

Question 23

Search Incident to arrest

Answer 23

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

Question 24

Consent

Answer 24

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

Question 25

Apparent authority

Answer 25

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

Question 26

Automobile exception

Answer 26

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

Question 27

Plain view

Answer 27

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

Question 28

Inventory

Answer 28

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

Question 29

Special Needs

Answer 29

• 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

Question 30

Terry Stop and Frisk:

Answer 30

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.

Question 31

4th A - S & S: Can the prosecutor use evidence gathered in an unconstitutional search and seizure against the defendant in court?
- Exclusionary Rule

Answer 31

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

Question 32

4th A - S & S: Can the prosecutor use evidence gathered in an unconstitutional search and seizure against the defendant in court?
-Knock and announce

Answer 32

Knock and announce violations do not require suppression of evidence subsequently discovered

Question 33

4th A - S & S: Can the prosecutor use evidence gathered in an unconstitutional search and seizure against the defendant in court?
-Invalid warrant

Answer 33

An officer’s reasonable mistake in executing an invalid warrant, if the warrant was facially valid, does NOT require suppression of the evidence

Question 34

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:

Answer 34

Evidence derived by exploiting prior unconstitutional conduct; inadmissible in prosecution’s case in chief

Question 35

Can nullify fruit of poisonous tree by

Answer 35

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

Question 36

Wiretapping

Answer 36

Need a warrant, which requires:

• PC
• persons to be heard
• conversations
• time: must be a strictly limited time period

Question 37

Eavesdropping

Answer 37

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.

Question 38

Law of arrest:

Answer 38

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

Question 39

De facto arrest

Answer 39

when police compel person to come to station for fingerprinting or questioning

Question 40

Common enterprise theory

Answer 40

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.

Question 41

Confessions: three federal challenges to a confession:

Answer 41

1) due process violation under 14A
2) 6th A right to counsel
3) 5th A Miranda doctrine

Question 42

Due Process violation under 14A

Answer 42

Basis: involuntariness–confession is the product of police coercion

Question 43

6th A right to counsel

Answer 43

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.

Question 44

5th A Miranda Doctrine

Answer 44

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

Question 45

Miranda: four key rights

Answer 45

1) remain silent
2) anything you say will be used against you
3) right to an attorney
4) right to have attorney appointed

Question 46

Miranda warnings are necessary before

Answer 46

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

Question 47

Miranda does not apply if

Answer 47

custodial interrogation is prompted by an immediate concern for public safety– any incriminating statements are admissible against the suspect

Question 48

Waiver of Miranda

Answer 48

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

Question 49

Miranda: Asserting the right

Answer 49

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

Question 50

Miranda: Basics

Answer 50

Not offense specific–applies to all topics

Harmless error standard for evidence entered in violation of miranda

Question 51

Statement obtained in violation of Miranda

Answer 51

can be used to impeach D’s testimony on cross, but cannot be used to impeach a third party’s testimony.

Question 52

Object obtained in violations of Miranda

Answer 52

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.

Question 53

Pre-trial identification: three types

Answer 53

• lineups
• show ups
• photo arrays

Question 54

There is no 5th A right to counsel at pre-trial identification but there is a

Answer 54

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

Question 55

Pre-trial identification: Remedies for constitutional violations

Answer 55

• 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

Question 56

Grand Juries– issue indictments

Answer 56

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

Question 57

Pretrial Detention – standard of proof

Answer 57

Government needs probable cause to bind a D over for trial and to detain him in jail before trial

Question 58

Detention hearings

Answer 58

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

Question 59

First appearance

Answer 59

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.

Question 60

Trial Rights – D responsibilities

Answer 60

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

Question 61

Trial Rights - Grady Rule

Answer 61

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

Question 62

Trial Rights: Judge

Answer 62

Judge must have no financial stake in outcome and no actual malice toward D

Question 63

Trial Rights– right to jury trial

Answer 63

When the authorized sentence exceeds 6 months

- misdemeanor cases are tried to the court unless the D demands a jury trial

Question 64

Trial Rights: Jury

Answer 64

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

Question 65

Trial Rights– preemptory strikes

Answer 65

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

Question 66

Trial Rights– face witness

Answer 66

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

Question 67

Trial rights– rights to an effective assistance of counsel

Answer 67

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.

Question 68

Trial Rights: Jury Instructions

Answer 68

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

Question 69

Guilty Pleas and Plea Bargaining

Answer 69

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

Question 70

Four requirements of the plea-taking colloquy judge must issue to D:

Answer 70

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

Question 71

D may withdraw a guilty plea after sentencing if:

Answer 71

• 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

Question 72

Punishment: 8th A prohibitions

Answer 72

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

Question 73

Punishment: Jurors/ Death penalty

Answer 73

jurors must be allowed to consider all potentially mitigating evidence in deciding whether to impose the death penalty

Question 74

Can’t impose death penalty against:

Answer 74

• mentally handicapped Ds
• presently insane Ds
• minors at the time of the crime – under 18

Question 75

Double Jeopardy— Attaches:

Answer 75

• 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

Question 76

Double Jeopardy– same offense requirement

Answer 76

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

Question 77

Double Jeopardy – same sovereign requirement

Answer 77

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

Question 78

Four exceptions to DJ– retrial permitted if

Answer 78

• 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

Question 79

5th A privilege against compelled testimony

Answer 79

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

Question 80

Three ways to eliminate the 5th A privilege

Answer 80

• 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