MBE and NY Distinctions (Crim Pro)

Question 1

Double Jeopardy

In NY, what constitutes the same offense?

Answer 1

All crimes arising from a similar criminal transaction MUST be tried together.

Question 2

Rosario: Prosecutorial

Duty to Disclose

What is the remedy if the prosecutor fails to make the required Rosario disclosures?

Answer 2

Prejudice for Reversal

Reversal ONLY if the Δ can show that there is a reasonable possibility that non-disclosure materially contributed to the result of the trial.

Question 3

Immunity:

What kind of immunity does one receive in NY?

Answer 3

Transactional immunity broader that both (1) use, and (2) derivative use.

Transactional immunity gives immunity about any transaction about which you testify in response to questions.

Question 4

Grand Juries in NY

Does GJ witness have the right to testify before the GJ?

Answer 4

Provided Δ/witness waives immunity, he is entitled to the opportunity to testify before GJ.

Question 5

Rosario: Prosecutorial

Duty to Disclose

What 4 other disclosures are required?

Answer 5

4 Additional Disclosures in a Criminal Trial

Between time a jury is sworn and prosecutor’s opening statement, prosecutor must give Δ the prior written or recorded statements of witnesses that she intends to call at trial and any of their known criminal records.
Δ must notify prosecutor w/i 30 days of not-guilty plea if Δs intention to use the insanity defense.
Notice of Alibi: w/i 20 days of arraignment, prosecutor may serve Δ with a demand for the alibi defense, and Δ must respond within 8 days.
Before Δ’s case on Direct, Δ must make available to prosecutor any prior relevant written or recorded statements by a defense witness

Question 6

Grand Juries in NY

What kind of immunity does a GJ witness receive?

Answer 6

GJ witness receives immunity from prosecution for any transaction about which is testifies (in response to a GJ question).

Question 7

Rosario: Prosecutorial

Duty to Disclose

What 8 things may

criminal Δ get from

NYS on demand?

Answer 7

8 Required Rosario Disclosures

On demand Δ may obtain from prosecutor:

Δ’s or co-Δ’s statement to PD/GJ
Tapes/bugged conversations to be used at trial.
Relevant photos or drawings made by PD
Reports of physical/mental/scientific tests
Any other property obtained from the Δ
Approximate date, time, place of offense charged
Brady Disclosures (exculpatory evidence)
All specific instances of Δ’s conduct that prosecutor intends to use at trial for impeachment.

Question 8

6th Amendment Right to Counsel

Does a suspect have the right counsel at an investigatory line-up?

Answer 8

A suspect does not have a right to counsel at an investigatory line-up, before formal prosecutorial action, unless:

Police are aware that suspect is represented by counsel on another charge, AND
Suspect requests his attorney.

Question 9

Grand Juries in NY

What kind of evidence

is required to support

a GJ indictment?

Answer 9

GJ Indictment MUST be supported by legally sufficient (admissible) evidence.

Question 10

6th Amendment Right to Counsel

How can a criminal Δ

waive his 6th Amendment Right to Counsel in NY?

Answer 10

Waiver may be obtained from a criminal Δ who is actually and known to be represented by counsel ONLY in the presence of counsel.

Otherwise, voluntary, knowing and intelligent.

Question 11

Grand Juries in NY

Is there a right to counsel in GJ investigations?

Answer 11

GJ witness w/immunity à no counsel in GJ room
GJ witness w/o immunity à may bring counsel into GJ room

Question 12

Police Detentions

What are the 4 categories of police detention in NY?

What is required for each?

Answer 12

4-Step Sliding Scale of PD Authority for Detentions:

Request for Information

Not on whim or caprice
Refusal to answer NOT sufficient for PC

C/L Right to Inquire

Founded suspicion that criminal activity afoot
Brief detention; release w/adequate answers

Stop-and-Frisk (RS)

Arrest (PC)

Question 13

Search & Seizure

What is required to be on a warrant in NY? Good faith exception available in NY?

Answer 13

3 Requirements for Warrant

PC: informant’s tip must meet two-prong test

Sufficient underlying facts and circumstances to allow magistrate to know how informer got info.
Establish the reliability and credibility of informant (success rate)

Precise on its Face
Neutral and Detached Magistrate

Good faith reliance on invalid warrant is NOT an exception to the warrant requirement in NY.

Question 14

Exclusionary Rule

In NY, which of the normal limitations on exclusion does NOT apply?

Answer 14

In New York, good faith reliance

on defective search warrant is

NOT a defense to exclusion.

Question 15

6th Amendment Right to Counsel

When does 6th Amendment Right to Counsel attach in NY?

Answer 15

Greater Right to Counsel in NY

Indelible right to counsel attaches in the following 4 situations

Δ is in custody and police are engaging in activity overwhelming to the layperson, AND Δ requests counsel, or
At arraignment, or
Upon the filing of a formal charge, or
Any significant judicial activity.

However, right can be waived after it attaches.

Question 16

5TH Amendment Right Against Compelled Testimony

What does the privilege protect? What is

outside its scope?

Answer 16

Does NOT protect Δ from using body to indict her

Real/physical evidence: not compelled testimony (e.g. hair, sample, fluids)
E.g. NYS Ct. App: okayed introduction of tattoos in hate crime prosecution (physical evidence).

DOES Protect Δ from Compelled Testimony

E.g. lie detector or custodial police interrogation

Question 17

6th Amendment Right to Counsel

Chart on Right to Counsel

in Trial Process

Answer 17

Pretrial

Applies: (1) custodial PD interrogation; (2) post indictment interrogation; (3) preliminary hearings to determine PC to prosecute; (4) arraignment; (4) post-line-up charge.

Does NOT Apply: (1) blood samples; (2) handwriting/voice exemplars; (3) preliminary hearings to determine PC to detain

Trial

Applies: (1) Felony trials; (2) misdemeanor where jail is imposed or suspended sentence; (3) guilty pleas

Post-Trial

Applies: (1) sentencing hearings; (2) appeals as a matter of right

Does NOT Apply: (1) discretionary appeals; (2) post-conviction proceedings (e..g. habeas); (3) parole and probation revocation.

Question 18

5TH Amendment Right Against Compelled Testimony

Who can claim the privilege and in which proceedings?

Answer 18

Anybody can claim 5th Amendment privilege in any proceeding

(e.g. criminal, civil, congressional).

However, it is waived if you don’t invoke it the first time you are asked the specific question under oath.

Question 19

5th and 6th Amendments

Flow Chart on Admissibility of Δ’s Statements

Answer 19

Question 20

Double Jeopardy

On MBE, what constitutes

the same offense?

Answer 20

On MBE, 2 crimes are the “same offense” if each crime requires proof of an additional element that the other does NOT require.

Lesser/Greater Included Offenses: if you are tried for one, you can’t be tried for the other

E.g. Larceny + Assault = Robbery
BUT, if you tried for battery, then victim dies, you can be tried for the murder.

Question 21

Double Jeopardy

What is the general rule?

Answer 21

Double Jeopardy

Under the 5th Amendment, a person may not be retried by the same sovereign for the same offense once jeopardy has attached.

Question 22

Double Jeopardy

What are the 4 exceptions permitting retrial for the same offense after jeopardy has attached?

Answer 22

Four Exceptions Permitting Retrial for Same Offense After Jeopardy has Attached

Hung Jury: jury unable to agree on a verdict.
Mistrial for Manifest Necessity (e.g. Δ gets sick); if case dismissed at behest of Δ, not on merits.
Retrial After a Successful Appeal
Breach of an Agreed-Upon Plea Bargain by Δ

If Δ breaches bargain, the sentence can be withdrawn and original charges reinstated.

Question 23

Double Jeopardy

What are separate sovereigns?

Answer 23

Separate Sovereigns

Two States Are NOT the Same Sovereign
State & Federal Are NOT the Same Sovereign
State & Municipality ARE the Same Sovereign

Question 24

Guilty Pleas

What are sufficient bases

for withdrawal of guilty

plea after sentence?

Answer 24

USSC: Contract theory of pleas, and Court generally unwilling to disturb pleas.

4 Bases of Plea-Withdrawal After Sentence

Involuntary
Court’s Lack of Jurisdiction
Ineffective Assistance of Counsel
Prosecutor’s Breach of Agreed-Upon Bargain

Question 25

Double Jeopardy

When does jeopardy attach in a jury trial? Bench trial?

Answer 25

Jeopardy Attaches:

Jury Trial: when the jury is sworn.

Bench Trial: when the first witness is sworn.

Jeopardy does NOT attach in civil proceedings, other than juvenile trials.

Question 26

Guilty Pleas

What are the requirements for a finding of a valid plea?

Answer 26

On record, judge must engage in constitutionally-required colloquy with Δ to ensure:

Voluntariness, and
Intelligence

Requirements of Record:

Address Δ Personally (NOT counsel)
Nature of Charge
Max. Authorized/Any Mandatory Min. Sentence
Right to Plead Not Guilty and Get Trial

Remedy: Δ may withdraw plea and start again.

Question 27

Death Penalty

4 Important Issues for Any Death Penalty Question

Answer 27

Death penalty statute that doesn’t give Δ chance to present mitigating facts is unconstitutional.

There can be no automatic category for imposition of death penalty.

The state may not, by statute, limiting the mitigating factors; statute must allow all mitigating factors.

Jury, not judge, may determine the aggravating factors justifying imposition of the death penalty.

Question 28

Right to a Jury Trial

Cross-Sectional

Requirement for Juries

Answer 28

Jury pool must reflect a fair cross-section of the population, however no right for Δ’s particular jury to be so-representative.

HOWEVER, preemptory challenges based on race or gender are unconstitutional, whether utilized by the Δ or the State.

Question 29

5TH Amendment Right Against Compelled Testimony

What are the 3 situations where privilege against compelled testimony does NOT apply?

Answer 29

3 Ways 5th Amendment Priv. Can Be Eliminated

MBE Grant of Immunity: use & derivative use
No possibility of incrimination: i.e. SOL
Waiver: by taking witness stand criminal Δ waives 5th Amendment privilege.

Question 30

Right to a Jury Trial

Number & Unanimity

of Jurors

Answer 30

Minimum of 6 Jurors

Verdict Must be Unanimous.

No Constitutionally Protected Right to a Unanimous 12 Person Jury

9 – 3 was OK

Question 31

Ineffective Assistance

of Counsel

What is required?

Answer 31

A claim for ineffective assistance of counsel (Strickland Claim): requires Δ to show:

Deficient Performance By Counsel, AND
But For Such Deficiency, the Result of the Proceeding Would Have Been Different

Question 32

Miranda: 5th Amendment

Right Against Self-Incrimination

In which situations does Miranda not apply?

Question 33

Right to a Jury Trial

When is there a constitutional right

to a jury trial?

Answer 33

Maximum Authorized Sentence > 6 Months

If the maximum authorized sentence exceeds 6 months, then there

is a constitutional right to a jury trial. Otherwise, no such right.

Question 34

Miranda: 5th Amendment

Right Against Self-Incrimination

When can/can’t PD

interrogate a suspect?

Answer 34

PD Interrogation Timeline

CAN: Prior to arrest/custody
CANNOT: After arrest, before warnings.
CAN: After warnings
CANNOT: After Δ invokes rights.

Question 35

6th Amendment Right to Counsel

What are the characteristics of the 6th Amendment right?

Answer 35

Attaches on commencement of formal adversarial proceedings.

Bars PD Action that is deliberate elicitation after commencement, but doesn’t require custody

Crime Specific (b/c only attaches once formal proceedings begin).

After Invocation, No PD Surreptitious Methods.

Question 36

Terry Stops and RS

Compare RS and PC

Answer 36

Reasonable/articulable suspicion can be established by both:

Less evidence than PC, and
Less-reliable evidence than PC.

But, situations that do NOT alone, establish RS:

Anonymous tip w/NO familiarity w/person’s affairs & no prediction of future behavior
Presence in high crime area, alone.
Flight from PD, alone.

Question 37

Warantless Searches

What are other situations where government can search without either a warrant or PC?

Answer 37

Searches w/Neither Warrant Nor PC

Roadblocks for DWI, Immigration Near the U.S. Border (fixed);
Consent Searches
Schools (Balance Test Allows Drug Testing, Other Searches)

Question 38

Terry Stops & RS

How does a stop & frisk differ from arrest or other seizure that requires PC?

Answer 38

Terry Stops

Terry stop ONLY requires RS.
Because Terry stop balances government interest against privacy intrusion, narrower searches are permitted for other-than-weapons, and broader searches for weapons.
Terry stop looks at

Length of Detention, and
Limitations on Movement

Terry stops can include property (e.g. luggage).

Question 39

Warrantless Searches

What are the 4 ways PD

can search a car, and with what level of suspicion?

Answer 39

Searching Cars

No Suspicion: Request Consent Search

RS: Terry stop

PC: search any area that PC takes PD

SITA: wingspan (not including trunk)

Question 40

6th Amendment Right to Counsel

On MBE, what topics can

PD question a criminal Δ

on after she has asserted

her 6th Amendment

Right to Counsel?

Answer 40

6th Amendment Right to Counsel is offense-specific, so PD CAN question suspect about other crimes/subjects after invocation.

Question 41

Exceptions to Warrant Requirement: The Basic Rule

What is the basic rule regarding warrants?

Answer 41

Searches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the 4th Amendment, subject to a few specifically established and well-delineated exceptions. Katz

However, the exceptions taken cumulatively make the exceptions largely the rule.

Question 42

Pretrial Identification

What are the two bases

to attack pretrial ID? Remedy?

Answer 42

Denial of Right to Counsel

Post-charge line-ups and show-ups give rise to a right of counsel (NOT pictures, though).

Denial of Due Process of Law

Line-up so unnecessarily suggestive (likely to produce misidentification).

Remedy: exclude, UNLESS prosecution

can show an independent source.

Question 43

Bail

Answer 43

Bail issues are immediately appealable.

Preventative detention is constitutional.

Question 44

Miranda: 5th Amendment

Right Against Self-Incrimination

What circumstances require PD to give Miranda warnings?

Answer 44

Two Prerequisites to Miranda

Custody

Reasonable person in Δ’s position would have believed himself to be deprived of freedom in a significant way.
Includes police station, hospital bed, but not probation interviews or traffic stops.

Interrogation

PD knew or should have known might solicit a damaging response.

(Most Terry stops do NOT implicate Miranda.)

Question 45

Miranda: 5th Amendment

Right Against Self-Incrimination

What happens after a party asserts right to counsel?

Answer 45

USSC created 5th Amendment right to counsel as a prophylactic measure to protect against self-incrimination.

Once Δ asserts right, re-interrogation of Δ w/o his attorney violates the 5th Amendment:

Not offense-specific.

Question 46

Warrant Requirement

Does wiretapping

require a warrant?

What is the unreliable ear?

Answer 46

Wiretapping and eavesdropping generally require a warrant, EXCEPT:

Unreliable Ear: no expectation of privacy in conversation with “wired” government informant, even in Δ’s home.

Question 47

Miranda: 5th Amendment

Right Against Self-Incrimination

What is required to waive the Miranda warnings?

Answer 47

Valid Miranda Waiver:

Knowing, Voluntary, & Intelligent.

Full awareness of both nature of the right being abandoned and the consequence

Silence/shoulder shrugging: NOT waiver
However, PD not telling Δ that his lawyer wanted to talk to him was OK.

Question 48

Exceptions to Warrant Requirement: Stop & Frisk/Terry Stop

What does the court

balance to determine if

a PD action is a Terry stop?

Answer 48

Stop & Frisk Only Requires RS

To determine if a seizure is a stop-and-frisk (Terry Stop), balance:

Nature & extent of government interest
Against privacy intrusion.

Question 49

Exceptions to Warrant Requirement: Hot Pursuit

Answer 49

PD in immediate pursuit of a subject don’t need a warrant to make a search.

Moreover, once PD enter a home while in pursuit, there are NO other limitations:

NO wingspan limitation.
Can include anything they found, even if NOT related to fleeing felon.

Question 50

Exceptions to Warrant Requirement: Consent

Answer 50

Consent must be (1) voluntary, & (2) intelligent

PD do NOT have to warn person re: right to refuse for it to be voluntary and intelligent.
HOWEVER, PD CANNOT lie and state that they have a warrant when they don’t.
3rd Party Consent: if +1 person has equal right to use property, any can consent

Question 51

Exceptions to Warrant Requirement: Evanescent Evidence

Answer 51

If the evidence would likely disappear if PD took the time to get a warrant.

Question 52

Exceptions to Warrant Requirement: Search Incident to Lawful Arrest

What are the requirements of

the search incident to a lawful arrest warrant exception?

Answer 52

Requirements for

Search Incident to a Lawful Arrest Exception:

Arrest is lawful (PC)
Search: Contemporaneous in time/place

Search of the person
Areas within arrestee’s wingspan

NY v. Belton: wingspan includes passenger compartment BUT NOT trunk for arrest in car.

(But PD can search anywhere in car where PC takes them.)

Question 53

Exceptions to Warrant Requirement: Plain View

What is the key to the

plain view exception to

the warrant requirement?

Answer 53

The police officer must legitimately be present where she does the viewing.

Question 54

Exceptions to Warrant Requirement: Summary of the Exceptions

Answer 54

Exigent Circumstances:

Emergency Situations (circumscribed by the exigency)
Fleeing Suspects/Hot Pursuit
Evanescent Evidence
Community Caretaking

Plain View (fruits, instrumentalities, evidence of crime)

Automobile Exception (wherever PC takes them)

Arrests (public felony; misdemeanor in front of PD)

Search Incident to Arrest (person and area within control;

if in car, doesn’t include trunk, but if PD has PC, anywhere)

Multi-Unit Building: if police reasonably search the wrong unit in such a building = evidence found is admissible.

Question 55

Exceptions to Warrant Requirement: Automobile Exception

What is the standard for the automobile exception to the warrant requirement?

Answer 55

PD may search an automobile and containers within it w/o a warrant where they have PC to believe contraband or evidence is contained.

E.g. if PD has PC to believe illegal aliens in car, CANNOT search glove compartment

Question 56

Search & Seizure

What is government conduct?

Answer 56

4th Amendment Protections are for Government Conduct

Government-paid PD (on/off duty)
Private individual acting at PD direction
Unless deputized, private police are NOT engaged in government conduct.

Question 57

Search & Seizure

When does a person NOT have a reasonable expectation of privacy?

Answer 57

NO reasonable expectation of privacy in things that a person holds out to the public everyday.

Sound of your voice
Style of handwriting
Paint on outside of car
Bank account records
Location of car on public road/driveway
Seen across open fields (not curtilage)
Flying over public airspace
Odors emanating from luggage
Garbage on the curb.

No Expectation: (1) passengers in car, where passenger doesn’t own car or property seized; (2) drug dealer on premises solely for business purpose of cutting up drugs

Question 58

Search & Seizure

When does a person have standing to object to

the legality of a search?

Answer 58

A person has standing when they have a reasonable expectation of privacy.

ALWAYS have a reasonable expectation:

On premises you own.
Where you live
Where you are an overnight guest

Though PD are supposed to have arrest warrant to arrest a Δ in a 3rd party’s home, Δ has no standing to challenge, because the warrant is to protect the 3rd party’s privacy right.

If PD have PC to arrest, but no warrant, but arrest Δ in his home (viol)a later confession at the station house is OK (NOT fruit of unlawful arrest).

Question 59

Search & Seizure

Flow Chart for Legality of Search/Seizure Under the 4th Amendment

Answer 59

Question 60

Exclusionary Rule

What is the definition of the “fruit of the poisonous tree” doctrine?

Answer 60

Fruit of the Poisonous Tree

In addition to excluding evidence which is seized illegally, the doctrine ALSO excludes evidence that has been obtained or derived as a result of the initial search.

Question 61

Arrests

On the MBE, what does PD need to initiate an arrest?

A stop-and-frisk?

Answer 61

Arrest: is a seizure for purposes of the

4th Amendment, requiring PC

Warrant for Arrest:

Not needed for public arrests.
Is needed for non-emergency arrest of a person in their own home.

Only RS Needed for Stop-and-Frisk

Duration and Scope
Includes Property Seizure

Question 62

Exclusionary Rule

What are 5 situations where exclusionary rule doesn’t apply to exclude evidence?

Answer 62

Limitations on the Exclusionary Rule

(5 situations where evidence is NOT excluded despite the fact that search or seizure was unconstitutional:)

Grand Juries
Any Civil Proceeding
Parole Revocation Proceedings
Good Faith Reliance (judicial opinion, warrant (but see NYS), statute, or ordinance)
Impeachment of Criminal Δ.

Otherwise voluntary confession

Question 63

Exclusionary Rule

How can the chain between PD action and illegally seized evidence be broken to allow introduction of that evidence?

Answer 63

3 Ways to Break Chain Between Illegal PD Action and Derived Piece of Evidence

Independent Source of Evidence
Inevitable Discovery of Evidence
Δ’s Intervening Act of Free Will