mbe crim pro Flashcards
search and seizure–> who is conducting search?
govt official or one under direction of govt, otherwise doesn’t count
search and seizure–> search?
- search: where you have expectation of privacy.
- some sort of enclosure, house, car, purse, bathroom, dressing room
search and seizure–> no expectation of privacy
no expectation of privacy, not a search.
- anywhere out in the open, cop can look, like backyard with helicopter (open fields)
- public streets
- garbage can left out in the street
- abandoned property
- bank records
- physical characteristics (hand writing, voices)
- conversations with undercover officers and informants
- pen registers (Records of dialed phone numbers)
- smells emanating from cars and other items
- automobile vehicle identification number (VIN)
search and seizure–> when can they search?
if they have PROBABLE CAUSE (more likely than not) = reasonable person could conclude items related to criminal activity can be found at the location
search and seizure–> when do you need a warrant
- govt official/soemone undrr direction of govt conducting search
- search done where there is expectation of privacy
- if there is probable cause to find items related to criminal activity there
warrant requirements
- neutral and detached magistrate determines probable cause issued timely
- specific place, items, and/or people and scope detailed in warrant
- if warrant does not meet above requirements, warrant is invalid and items seized pursuant to the warrant will be excluded from the prosecutions case in chief
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wiretapping constitutes a search
* must have probable cause and warrant
* must specifically identify whose conversations are to be intercepted
* must include an end date for the warrant
* must perform minimization
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- informants tip is ok to rely on as long as reliable
- if cops rely on info which turns out to not be valid, search is still ok
once cops find what they are lloking for, search must cease
MAKE SURE YOU READ FACTS CAREFULLY AS TO WHETHER THE COPS EXCEEDED SCOPE
exceptions to warrants= when warrant is not required
never pick exception as answer choice unless 100% certain
- consent
- hot pursuit
- auto exception
- exigent circumstances
- evidence obtained from administrative searches
- protective sweep
- plain view
- stop and frisk
- search incident to lawful arrest
exception to warrant: plain view
if police are legally present, they can seize any item in plain view, even if that item was not named in the warrant
exception to warrant: evidence obtained from administrative searches
police do not need search warrants to conduct administrative searches
two types
1. administrative warrants (fire or health inspections of building)
2. warrantless administrative searches- used to ensure complaicne with various administrative regulations
* airline boarding areas
* international borders
* highly regulated industries (liquor stores, gun shops)
* searches of students in public schools
* special needs searches; drug testing of railroad employees after an accdient
* roadblocks for drunk driving or seeking information
exception to warrant–> consent
owner of property may consent OR 3rd party who has actual or apparent authorty (like joint control or shared use of premises)
exception to warrant–> auto exception
police allowed to conduct warrantless search of an autombile incident to arrest if the arrestee is within reach of the passenger compartment
if police have probable cause that the car has contraband, may search those parts of car that might contain contraband, even without arrest
exception to warrant–> exigent circumstances
emergency, reasonable belief evidence may be lost, destroyed, or flee
exception does not apply when police create exigency
absent exigent circumstances, police need warrant for DUI blood draw
exception to warrant–> search incident to lawful arrest
first did they actually arrest you lawfully without warrant?
on the street: search wingspan
at home: search suspect and immediate arrest area
arrest in car: may search passenger compartment of vehicle as long as person/suspect still has access to vehicle at that time
* officer cant arrest suspect, put him in back of squad car, and then go back to conduct a search of the car (unless reasonable to believe vehicle had evidence of offense of arrest)
inventory search: when police arrest driver and impound car, it may be searched for inventory purposes
special rule for cellphones: officers may seize a cellphone during an arrest and check the phone for dangers, but police need a warrant to search the phone’s digital information
YOU CAN BE ARRESTED FOR A MISDEMEANOR! EVEN IF IT ONLY PUNISHABLE BY A FINE
exception to warrant–> protective sweep
- allowed if reasonable belief other suspects are in house not looking for contraband here
- want to search rest of home for more criminals
traffic stop
officers must have reasonable suspicion to stop a car
once there is a lawful stop, officers may pat down an occupant for weapons if they have reasonable suspicion that the person has a weapon
although traffic stops restrain freedom of movement, drivers are generally not in custody for Miranda purposes because such encounters are typically brief and temporary
* this means officer can elicit incriminating statements, and its admissible
checkpoints: officers do not need reasonable suspicion to stop drivers if they pull over everyone
exception to warrant–> stop and frisk
- cops need reasonable suspicion that criminal activity is afoot
- stopping a perosn on the street and asking them questions
- frisk: patting down- reasonable suspicion that person has a weapon
- can also question suspect
interrogations: 5th Amendment
Provides, among other things, that no person shall be compelled in any criminal case to be a witness against himself.
scope of the privilege
* Applies to natural persons, not corporations or unions (or custodian or corporation’s public record)
* applies to testimonial evidence, not physical evidence
* Applies to testimony that would be a link in the chain leading to prosecution or conviction
as long as there is reason to believe the testimony might lead to future criminal prosecution, an individual is entitled to invoke the Fifth Amendment.
If someone is given immunity from prosecution for their statements, they cannot continue to refuse to answer.
derivative use immunity : rotects a witness from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution, but does not protect him from its use in a civil suit.
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Statements Made by an Individual
Must be made by the individual to the government
Key starting point for the privilege against self-incrimination: Miranda v. Arizona
* Statements made as a result of custodial interogation are inadmissible unless they are accompanied by procedural safeguards (i.e., the Miranda warnings)
* “Custodial”: The person being questioned has been arrested or is not otherwise free to leave (in the back of a police cruiser)
* If not in custody, no warning is required. Any statement (or silence) can be used.
* Someone who is already imprisoned is not necessarily treated as “in custody” for purposes of custodial interrogation. The prisoner is not “in custody” if he is free to be taken back to his cell.
* “Interrogation”: Involves either the official asking questions or engaging in other words or conduct that police know or should know will elicit a respons
* does not include volunteered statements
* does not include routine booking questions
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miranda warnings
Before conducting custodial interrogations, the police must inform the suspect:
* You have the right to remain silent
* Any statement you make may be used against you in court;
* You have the right to consult an attorney and to have the attorney present during questioning and
* You have the right to have an attorney appointed if you cannot afford one.
interrogators must ask whether the defendant understands the rights
* Defendant understands English, can hear, and actually heard what was said
No magic words: As long as the substance of the Miranda warnings is communicated, it will be sufficient
The police must cease questioning if either of the following occurs:
(1) invoking the right to remain silent
* If a defendant says she does not want to talk, the interrogation must stop
* the right must be affirmatively invoked; it is not enough to just remain silent.
* after a substantial period of time, police can go back to the suspect, give warnings again, and seek to talk to the person again.
(2) invoking right to counsel
* Right must be affirmatively invoked: “I want a lawyer.”
* f the right to counsel is invoked, all questioning must stop until either: lawyer is present or the defendant affirmatively initiates contact with the police. police cannot generally go back to the defendant
* It is not enough to say, “I think I should talk to somebody,” or “I want to talk to my… (Parents, doctor, etc.)”
* Police do not have to tell the defendant that a lawyer is trying to reach them.
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public safety exception
When public safety is at risk, the police do not have to give Miranda warnings before questioning.
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Interrogation Tactics
The confession must be volunteered
Statements obtained by threat, even after Miranda warnings, are inadmissible.
Confessions can be the product of deceit
interrogations: consequences of fifth amendment violations
Two categories:
1. Statements obtained involuntarily
2. Statements obtained in violation of Miranda
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Involuntarily Obtained Statements
an involuntary statement is never admissible against a defendant
Whether to overturn a conviction depends on the harmless error standard.
Evidence obtained as the result of an involuntary statement (e.g., “Tell us where the body is buried” while a suspect is at gunpoint) is fruit of the poisonous tree and is presumptively inadmissible.
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Statements in Violation of Miranda
Inadmissible in the prosecution’s case in chief, but can be admitted in order to impeach the defendant to challenge his credibility
Evidence obtained as a result of a voluntary statement taken in violation of Miranda is admissible
harmless error
NOT AN AUTOMATIC REVERSAL
under the harmless-error rule, the appellate court should determine whether admission of the improper comment:
* was sufficiently prejudicial as to require reversalor
* constituted only harmless error.
An improper prosecutorial comment is sufficiently prejudicial to require reversal if the comment contributed to the guilty verdict.
* Conversely, if the appellate court is convinced beyond a reasonable doubt that the comment did not contribute to the verdict, then the erroneous admission constitutes harmless error.
EXAMPLE: atty can not comment on defendant’s failure to testify at trial, this violates 5th a. not automatically reversible, see if it was a harmless error
plain error
Under the plain-error doctrine, a defendant who failed to preserve a claim of error is still entitled to appellate relief if:
(1) the district court committed error under the law in effect at the time of the appeal,
(2) the error was obvious under that law, and
(3) the error affected the defendant’s substantial rights.
sixth amendment
In addition to the Fifth Amendment right to counsel for custodial interrogations, the Sixth Amendment explicitly provides a criminal defendant with “the assistance of counsel for his defense.”
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Sixth Amendment Right to Counsel vs. Fifth Amendment Miranda Right
Sixth Amendment right automatically attaches once there has been an indictment, information, or other formal charges
* exists unless defendant knowingly and intelligently waives the right
Fifth Amendment right (protected by Miranda) must be affirmatively invoked by the defendant
Sixth Amendment right to counsel is offense-specific; a defendant has a Sixth Amendment right to counsel only with regard to the offenses for which he has actually been charged (and any lesser-included offenses)
With respect to unrelated charges, the defendant can be questioned, either expressly or through undercover government agents.
Sixth Amendment applies whether you are in custody or not
* Fifth Amendment Miranda right applies to custodial interrogation for any charge, but not to non-custodial interrogation
Applies to all felony prosecutions and to any misdemeanor
prosecutions in which jail time or suspended jail sentence is imposed.
* erroneous denial of defendant’s choice of counsel constitutes structural error- error that affects the entire framework of a criminal trial, rendering it fundamentally unfair. structural errors are not subject to review for harmlesssness and require automatic reversal of defendant’s conviction
applies to all critical stages of the prosecution
* Evidentiary hearings
* Post-indictment lineups
* Post-indictment interrogations
* All parts of the trial process, including guilty pleas, and sentencing
Examples of non-critical stages are:
* Investigative lineups (pre-indictment)
* Witnesses looking at photo arrays
* Discretionary appeals and post-conviction (habeas) proceeding
sixth amendment: identification procedures
types of procedures
there are two kinds of identification procedures: photo arrays and lineups
* photo arrays: Neither the defendant nor his lawyer has the right to be present but police must turn over the array to the defendant.
* Pre-indictment lineups: Defendant has no right to counsel
* Post-indictment lineups: Defendant has a right to have counsel present.
* If violated, evidence that the witness identified the defendant at the lineup must be excluded.
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admissibility
Lineup evidence at trial
* If the defendant moves to suppress evidence that a witness picked the defendant out of a lineup, the court will consider whether the lineup was impermissibly suggestive
* If it was, the court can exclude the testimony.
In-court identification
* The prosecution must establish by clear and convincing evidence that the witness would have identified the defendant even without the suggestive lineup.
exclusionary rule and its exceptions
rule: illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal interrogation, is inadmissible at the criminal trial of the person whose rights were violated
the exclusionary rule applies at trial, not to pretrial proceedings.
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standing
The violation must have been of the defendant’s rights, and not someone else’s rights.
One slight qualification: If the driver of a car is arrested without probable cause, passengers are can deemed to have been seized as well, so they can challenge the constitutionality of the stop.
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the exclusionary rule
Evidence obtained in violation of the 4th, 5th, or 6th Amendments cannot be introduced at trial to prove a defendant’s guilt.
* BUT, violations of 4th A is not a proper basis to dismiss indictment
* 5th double jeopardy, 6th right to speedy trial, and 5th/14th due process is sufficient to dismiss indictment
fruit of the Poisonous Tree: The exclusionary rule also applies to evidence obtained as a result of the initial violation.
5 1/2 exceptions
Knock and announce: Officers executing an arrest warrant at a residence are required to knock and announce they are police.
* If they fail to do so (like knocking and announcing, not waiting, and using crowbar to open door), and discover evidence, that evidence does not have to be suppressed
* Inevitable discovery: If the evidence would have been discovered anyway through lawful means, it will be admissible.
* Independent source: Relevant evidence discovered on the basis of an independent source will be admissible.
* Attenuation in the causal chain: Intervening events and the passage of time can remove the taint of the unconstitutional conduct.
Good faith
* Biggest of the exceptions to the exclusionary rule
* It applies to officers who rely on either: an existing law that was later declared unconstitutional; or a warrant that, while facially valid, is later found to be defective.
* If officers are acting in good faith reliance, they are entitled to use the evidence that was obtained.
* Officers can rely on a warrant unless: he warrant was obtained by threat, The warrant was obtained in reliance on an unacceptably bare-bones affidavit (defective on its face), The magistrate wholly abandoned his judicial role
half exception: isolated neglifence by law enforcement personnel does not necessarily trigger the exclusionary rule
* To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion could meaningfully deter it
grounds for dismissing indictment
Deficient indictment
* fails to charge actual crime
* omits elements of crime
* statute of limitations has run
* improper venue or jurisdiction
defective grand jury proceedings
* admisison of unqualified grand juror
* exclusion of grand juror based on race/gender
* prosecutorial misconduct
constitutional violation
* fifth amendment double jeopardy
* sixth amendment right to speedy trial
* fifth/fourteenth amendment due process clauses
pretial procedure
The Initiation of Charges
Under the Fifth Amendment’s Presentment Clause, all federal felony charges must be initiated by indictment by a grand jury unless the defendant waives indictment.
* An indictment requires probable cause to believe the defendant committed the crimes charged.
The Fifth Amendment Presentment Clause has not been incorporated to the states, so states information can choose whether to proceed by grand jury indictment or by information
* If proceeding by information, there must be a preliminary hearing before a neutral judge to determine whether there is probable cause
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Proceedings before the Grand Jury
Grand juries can consider evidence that has been obtained illegally and hearsay evidence in deciding whether there is probable cause to indict.
Defendants do not have the right to testify before the grand jury or to call witnesses.
Defendants has no constitutional right to confront witnesses or present evidence
But, Defendant can still “plead the fifth”
Witnesses do not have the right to counsel within the grand jury room, although they can leave the grand jury room to consult with their lawyers.
Grand jury proceedings are held in private
the grand jury does not have to be unanimous
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Competence to Stand Trial
Test: Whether the defendant comprehends the nature of the proceedings against him and can aid his lawyer in defending the case
If a defendant is competent to stand trial, he is also competent to plead guilty and waives the right to trial.
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Guilty Pleas
The majority of defendants do not go to trial; the charges are either dismissed or the defendant pleads guilty
when a defendant pleads guilty, he waives various trial rights, such as the right to put the prosecution to its proof, to confront and produce witnesses, to trial by jury, to challenge the introduction of evidence, to appeal if there is a conviction
For a guilty plea to be valid, the defendant must knowingly and
intelligently waive these rights. This is accomplished through plea allocution, where the judge:
* Informs the defendant of his rights and ensures the defendant understands those rights;
* Informs the defendant of the possible sentences;
* informs the defendant of immigration consequences (the judge is not required to inform the defendant of all collateral consequences, such as difficulty getting student loans);
* Makes sure there is a factual basis for the plea;
* determines that the plea did not result from force, coercion, threats, or promises
If a defendant challenges his plea agreement and succeeds in reopening the case, the prosecution can reinstate charges that it had dropped.
The defendant is entitled to competent assistance from counsel in the plea bargaining process.
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bail
The Eighth Amendment forbids the setting of excessive bail, but does not state outright that bail must be offered pending trial.
General rule: Bail is available unless the defendant poses either a flight risk or a danger to the community.
There is a presumption in favor bail.
Courts can impose pretrial release conditions on defendants, such as house arrest, avoidance of particular people, or reporting requirements.
trial process: jury
Sixth Amendment Right to a Jury Trial
A defendant has a right to jury trial for all serious offenses, for which the authorized punishment is more than 6 months.
The Sixth Amendment right to counsel attaches in misdemeanor cases only if a sentence of incarceration is actually imposed.
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jury size
federal: a jury in a federal criminal case must have 12 members and must decide the case unanimously
States: Can use juries of 6 or more in criminal cases, and must decide the case unanimously
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Jury Selection
Begins with a venire or jury pool
* Must represent a fair cross section of the community from which no distinctive group is excluded
The petit or petty jury is selected through the process of voir dire.
* Two ways to remove potential jurors: challenges for cause and peremptory challenges.
* The actual jury that is seated must be impartial, but it does not have to reflect a fair cross-section of the community.
* For-cause challenges—Used to ensure an impartial jury
* jurors can be removed for cause when they reveal something that will prevent them from being impartial and deliberating fairly
* there is a presumption of bias when: a juror knows one of the parties or the victim; if a juror was a friend of one of the witnesses; or worked for the defendant’s company
* there is no limit to number of for cause challenges
Peremptory challenges—Can generally be made for any reason, including hunches
* Exception: Neither side can challenge jurors on the basis of race or sex (protected under Fourteenth Amendment Equal Protection Clause)
* each side is statutorily limited to number of peremptory challenges
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a court should instruct the jury on a lesser included offense, if based on the evidence presented at trial, a rational jury could acquit the defendant of the charged offense but convict the defendant of the lesser offense
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inconsistent jury verdict
incompatible verdicts (like where jury finds defendant not guilty of one offense but guilty of another that was predicated on commission of the first offense)
in such circumstances, guilty verdict cannot be challenged based upon inconsistency
rationale: jury may have reached decision to acquit through mistake, compromise, or leniency and its decision should not be disturbed
acquittal of a predicate offense does not mandate acquittal of a related offense, cannot challenge it based on inconsistency, BUT may still challenge conviction on ground that evidence was legally insufficient to convict
trial process: speedy and public trial rights
speedy trial rights
Defendants can be injured by the passage of time between an alleged crime and their trial
Statutes of limitations give defendants repose.
* Statutes of limitations normally begin to run when the crime occurred
* for continuing offenses, the SOL does not begin to run until the end of the offense (e.g., a conspiracy starts on the day of agreement but continues until the conspiracy’s purpose has been achieved or abandoned).
two constitutional provisions that protect against delay
* the due process clause protects against pre-accusation delay. It’s relatively toothless, as long as the limitations period has not run
* the speedy trial clause of the 6th amendment protects defendants against delay that occurs between the time of arrest or indictment (whichever comes first) and the time of trial
* A court faced with a Speedy Trial Clause claim looks at four factors:
1. Length of the delay;
2. reasons for the delay
3. Whether the defendant asserted the right to a speedy trial; and
4. risk of prejudice to the defendant
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public trial rights
The Sixth Amendment and First Amendment, taken together, protect the rights of the defendant (Sixth) and the public (First) to attend public trials.
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confrontation clause
Sixth Amendment guarantees a defendant the right to confront the witnesses against him, as well as the right to compulsory process to produce his own witnesses.
a witness may invoke the right against self-incrimination in response to specific questions, BUT such an invocation AFTER testimony made may violate defendant’s right to confrontation; denial of opportunity to cross-examine prosecution witness with regard to bias violates the confrontation clause and it a witness invokes this privilege and prevents cross-exam, his testimony should be stricken
crawford doctrine:
* if a statement is testimonial (i.e., made under circumstances which would lead a reasonable person to believe that the statement would be used at a later trial), then the Sixth Amendment bars admission of the statement if: the declarant is unavailable and the defendant had no prior opportunity to cross-examine the witness
* For non-testimonial statements, look to the rules of evidence.
bruton doctrine:
* A defendant’s own statements are always admissible against him. this is true even if the defendant does not testify at trial
* If there are co-defendants, a non-testifying co-defendant’s statements are not admissible against the other defendant
defendant’s right to present witnesses:
* The defendant has the right to testify on his own behalf. He also has the right to compulsory process to obtain witnesses in his defense.
right to confrontation is waived if the defendant
* voluntarily leaves the proceedings or
* is excluded for good cause (misconduct) after receiving a warning from the court
a defendant may be excluded from the courtroom to protect a minor witness in RARE situation when its necessary to further an important public policy OTHER THAN a generalized presumption of trauma.
* to make this determination, the court must make an INDIVIDUALIZED finding based on evidence
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burden of proof
The prosecution must prove every element of the crime beyond a reaonsbale doubt
Distinguish elements of the crime from affirmative defenses
* The government can place the burden of proof with regard to affirmative defenses (insanity, self-defense, entrapment, mistake) on defendant
arrest
there must be probable cause to believe that the arrested individual has committed a crime
can be with or without arrest warrant
pretext arrest: as long as police have probable cause to believe an individual committed a crim, its irrelevant whether the officer stopped that person for the crim for which there is probable cause or some other crime
