MBE Crim Pro

Question 1

crim pro constitutional protections protect ppl against who?

Answer 1

> the gov
private ppl acting as gov agents
defense counsel (priv and public)

Question 2

true or false:
as long as its not a seizure police can approach anyone

Answer 2

true

Question 3

when does a seizure occur

Answer 3

when an officer by means of physical force or show of authority, terminates/restrains a person’s freedom of movement

Question 4

Stop & Frisk aka Terry Stop

Answer 4

an officer can stop an individual when they have reasonable suspicion (based on articulable facts) that the suspect is or is gonna be engaged in criminal behavior

Question 5

Can an officer do a pat down during a terry stop?

Answer 5

Yes an officer can pat down a detainee for weapons but cant frisk for evidence
> can also seize obvious contraband
> can arrest if PC develops

Question 6

when can a cop stop a car?

Answer 6

when there is reasonable suspicion

> if cop suspicious of a weapon, they can pat down for it during legal stop

Question 7

what do you need for an arrest?

Answer 7

probable cause or an arrest warrant

Question 8

pretext arrest

Answer 8

its legal if someone ends up getting arrested for something different than what a cop had probable cause for

Question 9

Arrest warrant reqs

Answer 9

> issued by a neutral and detached magistrate
based on probable cause!!!!!!
names the person and the offense

Question 10

In a question about an arrest with a warrant, what issue are you looking for?

Answer 10

whether there was probable cause

Question 11

when can a cop make a warrantless arrest

Answer 11

> for a crime committed in the cop’s presence

> probable cause for thinking someone committed a felony

> if not in their presence, can only arrest for committing a felony

Question 12

what makes an arrest illegal and what are the results of that

Answer 12

> illegal arrest = no probable cause
doesn’t prevent prosecution but prevents evidence from being admitted

Question 13

types of searches incident to arrest

Answer 13

> arrest on street:
can search suspect + wingspan
*includes pockets + purse/bag/containers immediately associated

> arrest at home:
can search suspect + immediate arrest area

> arrest in car:
passenger compartment only if person still has access to car
- unless car is impounded, then ok

Question 14

Can a cop search a cellphone during an arrest?

Answer 14

Phone can be seized but NOT searched
* phone search needs a warrant

Question 15

What’s a search

Answer 15

when gov conduct violates someone’s reasonable expectation of privacy

Question 16

Is physical instruction required for a “search”?

Answer 16

No, a search can happen with or without a physical intrusion

Question 17

Careful:
if it was someone else who had the reasonable expectation of privacy and not the defendant, then the gov action will be valid

Question 18

if a private security guard at the store reaches into Quentin’s pants to take the belt he was stealing, is that a search?

Answer 18

no bc its not a government actor, its the store’s private agent

Question 19

Requirements for a search warrant

Answer 19

(1) must be issued by a neutral magistrate

(2) must be based on probable cause

(3) describes the property and place that will be searched with particularity!!

*if not met then invalid + evidence inadmissible

Question 20

Does wiretapping constitute a search?

Answer 20

Yes, needs PC + warrant that says:
> whose conversations are to be intercepted
> Includes an end date for the warrant
> Perform minimization (avoids getting outside convos)

Question 21

Exceptions to the Warrant Requirement

Answer 21

ESCAPES:
o Exigent circumstances
o Search incident to arrest
o Consent
o Automobiles
> with probable cause= can search parts of vehicles that may have contraband
o Plain view
o Evidence obtained from administrative searches
o Stop and frisk

Question 22

true or false:
A search warrant is not required for search of a car as long as the police have probable cause to believe it contains contraband.

Answer 22

true

Question 23

Can someone who has been given immunity from the prosecution refuse to answer in court?

Answer 23

no they must answer

Question 24

Privilege against self-incrimination

When should miranda warnings be given?

Answer 24

before a custodial interrogation

Question 25

true or false:
Interrogators must ask whether the defendant understands the miranda right

Answer 25

true
aka D understands English, can hear, and actually heard what was said

Question 26

When do police have to cease questioning?

Answer 26

(1) when D invoked their right to remain silent (by actually saying so)
- but can resume after a substantial period of time + gave warnings again

(2) when D invoked their right to counsel (must affirmatively invoke)

Question 27

name the exception where police do not have to give Miranda warnings before questioning

Answer 27

the public safety exception

Question 28

can confessions be obtained through deceit?

Answer 28

yes; but not by threats
> they must be voluntary

Question 29

Are involuntarily obtained statements admissible?

Answer 29

never; they must be voluntary

Question 30

Are statements in Violation of Miranda admissible?

Answer 30

only to impeach

Question 31

does the Fifth Amendment apply to blood tests or
handwriting exemplars?

Answer 31

no it only applies to testimonial evidence not physical evidence

Question 32

Does Police have to tell the defendant that a lawyer is trying to reach them?

Answer 32

No

Question 33

Is evidence obtained bc of an involuntary statement admissible evidence?
(Ex: Tell us where the body is
buried” while a suspect is at gunpoint)

Answer 33

It is presumptively inadmissible bc its fruit of the poisonous tree

> evidence obtained bc of voluntary statements but in violation of miranda are admissible

Question 34

Sixth Amendment

Answer 34

> applies at initiation of formal charges + automatic
offense specific (ONLY the ones CHARGED)
applies regardless of in custody or not
applies to critical stages of prosecution

Question 35

When does the Sixth Amendment Right to Counsel apply

Answer 35

> felony prosecutions
misdemeanor prosecutions with jail time
applies to critical stages of prosecution

Question 36

Does the Sixth Amendment Right to Counsel apply to non-critical stages?

Answer 36

no, does NOT apply to:
* Investigative lineups (pre-indictment)
* Witnesses looking at photo arrays
* Discretionary appeals and post-conviction (habeas) proceedings

Question 37

Does the defendant or his lawyer have the right to be present at a photo array?

Answer 37

Neither has the right to be present but police must turn over the array to the defendant

Question 38

what must the prosecution establish if a lineup was impermissibly suggestive?

Answer 38

by clear and convincing evidence that the witness would’ve identified the defendant even without the suggestive
lineup.

If they don’t, then the evidence of a witness picking a D from the lineup will be excluded

Question 39

2 questions to ask during identification procedures

Answer 39

(1) Was the identification before or after indictment?
> before = no lawyer
> after = lawyer

(2) Was the lineup or photo array impermissibly suggestive?

Question 40

Exclusionary rule

Answer 40

Illegally obtained evidence:
> physical evidence obtained by illegal search
> statements obtained through illegal interrogation

are inadmissible against the person’s whose rights were violated
*someone who isn’t the D can’t bring up the violation
*unless passenger in the car of a D arrested w/out probable cause

this rule applies at trial
(so not grand jury)

Question 41

Exclusionary rule:
fruit of the poisonous tree

Answer 41

The exclusionary rule also applies to evidence obtained through the initial violation

Question 42

Exceptions to the Exclusionary Rule (its ok and wont be excluded)

Answer 42

(1) Knock and Announce
- they’re supposed to but if they don’t and find evidence w their arrest warrant, it’ll come in
(2) Inevitable Discovery
(3) Independent Source
(4) Attenuation in the Causal Chain
(5) Good Faith
- relied on existing law that was bad OR a warrant later found defective
(6) 1/2 Negligence

Question 43

steps for Exclusionary Rule analysis

Answer 43

> Constitutional violation?
- 4th: search/seizure/PC
- 5th: custody/interrogation/ Miranda/invoking rights
-6th: right to counsel/critical stage

> If yes, does the rule apply?
Are there any exceptions that make the evidence admissible anyway?

Question 44

Exclusionary Rule:
over turning a conviction

Answer 44

the harmless error rule applies which asks whether there’d be a difference in the outcome if the evidence hadn’t been admitted

Question 45

True or false:
All federal felony charges must be initiated by indictment by a grand jury unless the defendant waives indictment.

Answer 45

true
> An indictment requires probable cause
> federeal reqs an indictment but states can choose between indictment or information

Question 46

True or false:
grand juries are a lot looser w their rules

Answer 46

true
> can consider evidence obtained illegally, hearsay,
> Ds dont have the right to testify/call witnesses
> witnesses dont have the right to counsel but can leave the room to talk w lawyer
> grand jury doesn’t have to be unanimous
> grand juries are held in secret

Question 47

For a guilty plea to be valid, what must the defendant do?

Answer 47

knowingly and intelligently waive rights through plea allocution

Question 48

bail

Answer 48

> cant be excessive
available unless D poses risk of flight or danger to community

Question 49

test for Competence to Stand Trial

Answer 49

> D comprehends the nature of the proceedings against him
Can assist his lawyer in defending the case

Question 50

when does a D have a right to trial by jury

Answer 50

any offense with punishment of more than 6 months

Question 51

jury sizes in Federal vs. State courts

Answer 51

Jury numbers:
> Federal: 12
> State: 6

*State and Federal juries now must unanimous to convict

Question 52

2 ways to remove potential jurors

Answer 52

(1) challenges for cause
(2) peremptory challenges

Question 53

Challenges for cause

Answer 53

> Used to ensure an impartial jury
no limit

Question 54

Peremptory challenges

Answer 54

> can be made for any reason except race + sex
statutorily limited

Question 55

The confrontation clause:
Crawford Doctrine

Answer 55

bars testimonial statements if
> the declarant is unavailable AND
> the D had no prior opportunity to cross examine

*witness died before trial = barred
*witness testified at trial 1. D appealed for new trial. By trial 2, the witness died. Ok to come in bc they’re unavailable but D had the chance to cross-examine in T1

> this is bc then D doesn’t have a chance to confront the witness

Question 56

The confrontation clause:
Bruton Doctrine

Answer 56

> D’s own statements are always admissible against him, even if he doesn’t testify at trial

> If there are co-defendants, a non-testifying co-defendant’s statements are NOT admissible against the other defendant.
(bc D wouldn’t be able to confront the co-defendant that isnt testifying)

Question 57

burden of proof in criminal trial

Answer 57

> prosecution must prove every element of the crime beyond a reasonable doubt

> D has burden w regard to affirmative defenses

Question 58

2 guarantees of the confrontation clause

Answer 58

(1) the right to confront witnesses against them

(2) the right to compulsory process to obtain witnesses in his defense

Question 59

purpose of speedy trial rights

Answer 59

> to avoid the D being injured by the passage of tie between the crime and their trial
(witnesses forgetting things etc)

> SOL gives D repose

Question 60

when does the SOL begin to run

Answer 60

> when the crime occurs

> for offenses that are continuous, SOL runs when the offense ends
(ex: a conspiracy that takes 3 years. SOL runs when it ends)

Question 61

4 factors the court looks at when faced w a speedy trial claim

Answer 61

(1) length of delay
(2) reason for the delay
(3) whether D asserted his right to speedy trial
(4) risk of prejudice to the D

Question 62

To reverse a conviction on the ground of ineffective counsel, what must the claimant must show?

Answer 62

(1) that counsel’s representation fell below an objective standard of reasonableness
and
(2) that there was a reasonable probability the claimant would not have been convicted had the attorney provided effective assistance.

Question 63

what can’t judges have according to Due Process?

Answer 63

judges cant have actual or apparent bias

Question 64

4 prosecutorial duties

Answer 64

(1) brady doctrine

(2) prosecutor can’t knowingly present false testimony

(3) prosecutor can’t contact D without his counsel (6th amend)

(4) prosecutor can’t comment on a D’s failure to testify at trial/make comments to jury about it (violation of 5th amend right to stay silent)
*but CAN comment on Ds silence before Miranda attached

Question 65

Brady doctrine

Answer 65

Prosecutors must turn over all material exculpatory evidence to the defense
(evidence that could change outcome of case)

2 types of evidence:
(1) evidence tending to show D is not guilty of the crimes charged

(2) evidence that would enable the defense to impeach the prosecution’s witnesses

Question 66

Effective Counsel:
Strickland test

Answer 66

Assesses whether a defendant was denied effective assistance by assessing:
> Performance:
did defense counsel’s performance fall below the reasonable conduct?
> Prejudice:
When there is a reasonable probability that, if counsel performed effectively, the result would’ve been different

• Cases in trial: D must show he wouldn’t have been convicted
• Guilty pleas: D must show he wouldn’t have pleaded guilty but-for ineffective counsel

Question 67

what happens to a D’s conviction if he shows that he was denied effective counsel?

Answer 67

His conviction but be reversed

Question 68

what does the effective assistance of counsel entail?

Answer 68

> no conflicts of interest
strickland test- effective assistance

Question 69

competence standard for waiving counsel (pro se)

Answer 69

Is the D competent enough to
understand what they are doing?

Question 70

Does the gov have free rein to authorize any length of sentence for any crime?

Answer 70

Yes

Exception:
> Life w/out parol for non-homicide crimes committed when D was a juvenile are unconstitutional
(cruel and usual punishment)

Question 71

In what type of cases can the death penalty be imposed on?

Answer 71

cases where the victim died

Question 72

who can’t the death penalty be imposed on?

Answer 72

Defendants who:
> are under 18
> suffer from cognitive impairment
> Ds who are insane at the time of execution

Question 73

death penalty safeguards

Answer 73

> bifurcated trial process
opportunity to present mitigating evidence

Question 74

What are the 3 protections given by the double jeopardy clause?

Answer 74

> can’t prosecute same offense after acquittal

> can’t prosecute same offense after conviction

> can’t have multiple punishments for the same offense

Question 75

Double Jeopardy Clause:
Blockburger test

Answer 75

checks that elements of a statutory offenses are not the same bc it’d violate dbl jeopardy

> You can’t be charged for a lesser crime of a bigger one you were already charged for
(unless diff victims)

ex: If you are prosecuted for and convicted of larceny, you cannot be indicted and prosecuted for robbery in the same episode.

Question 76

Double Jeopardy Clause:
Separate Sovereigns Rule

Answer 76

CAN be tried twice:
> in another state
> in state then fed court

CANT be tried twice:
> same state

Question 77

beginning and end for jeopardy to attach

Answer 77

start:
> jury is sworn in at jury trial
> first witness sworn in at bench trial

end:
> acquittal
> conviction without appeal or an affirmed conviction
* if conviction reversed on appeal he CAN be tried again unless reversal based on insufficient evidence

Question 78

2 kinds of mistrials

Answer 78

(1) manifest necessity
(a situation rendering it impossible to continue the trial or reach a fair outcome)
> D can be re-tried

(2) no manifest necessity
> D can’t be retried

Question 79

can judges enhance criminal sentences beyond the statutory maximums?

Answer 79

no; any enhanced sentences must be based on facts decided by the jury

unless its based on prior criminal convictions then that could be by the judge

Question 80

What is meant by “open fields” for Fourth Amendment considerations?

Answer 80

somewhere w no expectation of privacy

(ex: Private property that lies outside the curtilage of a home, like a farmer’s field)

despite owner thinking they have subjective privacy bc of fence, signs etc

Question 81

What are the requirements of a valid arrest warrant?

Answer 81

> Issued by a detached/neutral magistrate
upon finding of probable cause
describes with particularity the defendant and the crime.

Question 82

Do prison inmates have a reasonable expectation of privacy in their cells?

Answer 82

no

Question 83

May law enforcement randomly stop vehicles on public roadways?

Answer 83

no there needs to be reasonable suspicion of violation of law

Question 84

What are the three requirements for a statutory scheme imposing a death penalty to be constitutional?

Answer 84

The statutory scheme must provide:
(i) Clear and objective standards;
(ii) Specific and detailed guidance; and
(iii) An opportunity for rational review of the process.

Question 85

What is required for a defendant to have standing to challenge governmental conduct for unreasonable searches and seizures?

Answer 85

(i) The defendant himself has been seized; or
(ii) He has a reasonable expectation of privacy with regard to the place searched or the item seized.

Note: It is not enough that the introduction as evidence of an item seized may incriminate the defendant or that the evidence was seized from a co-conspirator.

Question 86

When is a search of a car permitted as an exception to the search warrant requirement?

Answer 86

When police have probable cause, they may search anywhere in a car that they believe there to be contraband, including the trunk and locked containers.

*only extends to containers and compartments that reasonably could hold the evidence they’re searching for

Question 87

Name the five situations where the good-faith exception to the exclusionary rule does not apply.

Answer 87

If:
(i) No reasonable officer would rely on the affidavit underlying the warrant;
(ii) The warrant is defective on its face;
(iii) The warrant was obtained by fraud;
(iv) The magistrate has “wholly abandoned his judicial role”; or
(v) The warrant was improperly executed.

Question 88

3 exceptions to the Miranda requirements?

Answer 88

(1) Public safety;
(2) Routine booking questions; and
(3) Undercover police.

Question 89

When and how may statements obtained in violation of Miranda be used at trial?

Answer 89

Voluntary and trustworthy statements may be used as impeachment evidence.

Question 90

When are the fruits of a non-Mirandized confession admissible?

Answer 90

Derivative physical evidence obtained as a result of a non-Mirandized confession is admissible, so long as that confession was not coerced.

Question 91

What is an “inventory search?”

Answer 91

Inventory searches are administrative-type searches of items in official custody, such as impounded vehicles

After lawfully taking custody of property, police may conduct a warrantless search of other property

Question 92

Where can probable cause to support a search warrant come from?

Answer 92

(1) a reliable, known informant
or
(2) an unknown informant if the information is independently verified.

Question 93

can cops search car if they have probable cause?

Answer 93

Yes;
The automobile exception to the warrant requirement allows police to conduct a warrantless search of a vehicle if they have probable cause to believe it contains evidence of a crime.

Officers can search any area within the vehicle where the evidence might be located, including the trunk and locked containers.

Question 94

True or False:
Under the automobile exception, a search is not limited to areas that the driver can access.

Answer 94

True; The limitation of areas only the driver can access is present only when there is a search incident to a lawful arrest

Question 95

Does the Fifth Amendment privilege against self-incrimination apply to evidence that might subject a person to civil liability or to corporations?

Answer 95

no

Question 96

If the interrogation of a suspect who has waived his/her Miranda rights is stopped for a long duration, should police re-Mirandize the suspect prior to resuming the interrogation?

Answer 96

yes

Question 97

Fifth Amendment rights

vs.

Sixth Amendment rights

Answer 97

Fifth Amendment:
> Right to counsel applies to custodial interrogations prior to the commencement of judicial proceedings. Must be affirmatively invoked

Sixth Amendment:
> Applies automatically upon the commencement of judicial proceedings.

Question 98

What offenses does the Sixth amendment cover

Answer 98

The Sixth Amendment covers an uncharged crime that constitutes the same offense as a formally charged crime

However, it does not attach to an uncharged crime that requires proof of an element that the other does not.

Question 99

Must a prosecutor present exculpatory evidence to a grand jury that is considering whether to indict a person?

Answer 99

No; a prosecutor must provide exculpatory evidence to the defendant after indictment and prior to trial.

Question 100

Can an incriminating statement gotten during a custodial interrogation without Miranda be used in trial?

What about physical evidence obtained as a result of the non-Mirandized statement?

Answer 100

No, a suspect’s incriminating statement obtained during a custodial interrogation without Miranda cannot be used in trial.

However, physical evidence obtained bc of the non-Mirandized statement is admissible so long as that statement was not coerced.

Question 101

Are “three-strikes” law constitutional?

Answer 101

Yes

Question 102

Violations of Apprndi

Answer 102

if a sentencing scheme:

(1) if a jury recommends the death penalty without specifically finding an aggravating circumstance and

(2) lets the judge to then make that finding independently

Question 103

Do facts (like aggravating circumstances) that expose a criminal defendant to a greater punishment than authorized by the jury’s guilty verdict an element that must be submitted to and decided by the jury?

Answer 103

Yes;

Due process requires that any fact (e.g., aggravating circumstances) that exposes a criminal defendant to a greater punishment than authorized by the jury’s guilty verdict is an element that must be submitted to and decided by the jury.

Question 104

Exam tip:

if you don’t know how to answer an MCQ, what answer do you pick?

Answer 104

Pick an answer choice that is against the Defendant and for the government

Question 105

Does an anonymous tip give you probable cause?

Answer 105

no

Question 106

what does the jury have to find to impose the death penalty?

Answer 106

(1) guilt beyond a reasonable doubt
(2) at least 1 aggravating circumstance beyond a reasonable doubt

Question 107

Within how many days after being served the Notice of Discovery must the prosecutor file a written “Discovery Exhibit?”

Answer 107

15 days

Question 108

When may a police officer arrest a person without a warrant?

Answer 108

(1) Person committed felony, misdemeanor/municipal/county ordinance in officer’s presence;
or
(2) Felony has been committed and officer reasonably believes person arrested committed it

Question 109

When may the court summarily punish criminal contempt?

Answer 109

When contempt was committed in the actual presence of the court and the court heard/saw the conduct

Question 110

Every person charged with a misdemeanor must generally be brought to trial within how many days of arrest?

Answer 110

90 days for misdemeanor

175- for felonies

Question 111

Unless previously lawfully released, every arrested person must be taken before a judicial officer within how many hours of being arrested?

Answer 111

24 hours

Question 112

When does a non-adversary probable-cause determination not have to be held within 48 hours when a defendant is in custody?

Answer 112

when D was arrested w a warrant

Question 113

In Florida, all pleadings filed after the initial pleadings must be served on whom?

Answer 113

every party

Question 114

What is a capias?

Answer 114

An arrest warrant

Question 115

How long does a prosecutor have to file notice of an intent to seek the death penalty in Florida?

Answer 115

Notice must be filed within 45 days of arraignment

Question 116

Original jurisdiction in criminal cases is vested where?

Answer 116

> county courts
circuit courts

Question 117

How should a defendant charged with a crime by indictment or information demand a speedy trial?

Answer 117

file a motion captioned “demand for speedy trial” within 60 days and serve a copy on the prosecuting authority

Question 118

To rely on an insanity defense, the defendant must give _______ notice no later than _________ days after the arraignment or the filing of a written plea of not guilty

Answer 118

written; 15 days

Question 119

True or False:
A pretrial motion to dismiss does not have to raise all available defenses.

Answer 119

FALSE: must raise the defenses or they are waived

Question 120

If two or more defendants are jointly tried, how many peremptory challenges is each side entitled to?

Answer 120

(1) Each defendant is entitled to
a) Capital crimes = 10
(b) All other felonies = 6
(c) Misdemeanors = 3

(2) State is entitled to as many challenges as are allowed to all of the defendants combined.

Question 121

Upon demand of the prosecutor, the defendant has how many days before trial to file and serve a notice of an intention to claim an alibi?

Answer 121

10 days

Question 122

When must the court generally grant a new trial?

Answer 122

When it is established that the:
(1) Verdict was decided by lot
(2) Verdict is contrary to law or the weight of the evidence; or
(3) Emergence of new and material evidence that D couldn’t have discovered with reasonable diligence would’ve changed the verdict

Question 123

What is a judgment in Florida?

Answer 123

An adjudication by the court that the defendant is guilty or not guilty

Question 124

The state has how many days from the arrest or service of a capias to file charges on an in-custody defendant?

Answer 124

30 days

Question 125

All criminal cases are tried before _________ jurors, except capital cases, which consist of ________ jurors

Answer 125

6;12

Question 126

remember that to apply the exclusionary rule exceptions, there first mut have been a violation of 4/5/6th amendments

Question 127

if a camera is in plain view can that be taken?

Answer 127

not to look at the pics it has be those are not immediately apparent so not plain view

Question 128

Does have a right to counsel at a photo array or an in-person identification?

Answer 128

> Critical stage: in-person
Non-critical stage: photo-array

Question 129

When is a second prosecution for the same offense not barred by double jeopardy?

Answer 129

when a mistrial is declared
> at the defendant’s request
> with the defendant’s consent
or
> due to manifest necessity (e.g., a hung jury).

Question 130

true or false:

entering the curtilage in an unusual manner for an uncommon purpose (e.g., to conduct a dog sniff for drugs) constitutes a Fourth Amendment search and must be supported by a warrant.

Answer 130

true

Question 131

Is the curtilage (e.g., porch, yard) a constitutionally protected area?

Answer 131

Yes bc it immediately surrounds and is closely associated with a person’s home.

Question 132

is there a right to
> to have counsel present inside the grand jury room
or
> to present witnesses at a grand jury proceeding

Answer 132

no

Question 133

Is an indictment by a grand jury based on illegally obtained evidence or hearsay is constitutionally valid

Answer 133

Yes bc a grand jury is generally not restricted to hearing evidence that would be admissible at trial

Question 134

true or false:
To search a car incident to arrest, a cop just needs reasonable suspicion that evidence of the offense might be found in the vehicle.

Answer 134

true

Question 135

true or false:
Custodial interrogation is questioning initiated by a known (as opposed to
undercover) law-enforcement officer after a person is in custody.

Answer 135

true

Question 136

True or False:
Warrentless searches in sections of commercial properties in highly regulated industries will be found reasonable under the 4th amend

Answer 136

true; bc highly regulated industries have a lower expectation of privacy

Question 137

entrapment

Answer 137

> affirmative defense

Question 138

can a confession be excluded as a violation of miranda bc of mental illness?

Answer 138

no; Miranda violations include:
> police coercion
> inducement of confession

Question 139

true or false:
double jeopardy does not attach during a prelim hearing or a grand jury investigation

Answer 139

true;

it will attach upon
> the swearing-in of a jury
> swearing in of the first witness during bench trial

Question 140

when is a person in custody?

Answer 140

A person is in custody when he is not free to leave or is otherwise deprived of his freedom in any significant way.

The test is whether a reasonable person would believe that he is not free to leave.

Question 141

when is a warrantless search of an automobile incident to arrest permitted?

Answer 141

when (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and may pose a threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or

(ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle

Question 142

can police enter a third party’s home to execute an arrest warrant?

Answer 142

yes but only when they have:
(1) a search warrant
(2) exigent circumstances
or
(3) the third party’s consent

Question 143

Exigent Circumstances

Answer 143

officers can conduct a warrantless search if:
> they’re in hot pursuit
> there is an immediate danger

Question 144

An anticipatory search warrant is one that becomes effective only upon the occurrence of a triggering condition

How is probable cause met?

Answer 144

If:
> at the time it’s issued, there’s probable cause to believe the triggering condition will occur
AND
> if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found at the place to be searched.

Question 145

Are Mandatory presumptions against a defendant concerning an element of a charged crime allowed?

Answer 145

No, bc acc to due process, the prosecution has to establish each element beyond a reasonable doubt

so not allowed even if D could rebut the presumption.

Question 146

how will in-court identification testimony be admissible if before that there was an unnecessarily suggestive out-of-court identification procedure?

Answer 146

prosecution must demonstrate that it is sufficiently reliable—i.e., poses no substantial likelihood of misidentification.

bc otherwise its not admissible

Question 147

what standards to school officials need to meet to search a student?

Answer 147

reasonable suspicion that they’re violating/have violated)the law or school rule

search methods must be:
(1) reasonably related to the objective of the search
(2) not excessively intrusive considering the student’s age, sex, and the nature of the infraction

Question 148

when does double jeopardy attach if a criminal charge is dismissed before trial?

Answer 148

it doesn’t, D can later be prosecuted for the same offense

Question 149

true or false:
Even when D asserts a defense that negates an element of the crime.
the prosecution still has to prove every element beyond a reasonable doubt to convict a defendant

Answer 149

true

Question 150

when is an incriminating statement taken after an unlawful arrest is admissible?

Answer 150

when the court determines that the connection between the arrest and the statement is so attenuated that the statement is considered voluntary.

Question 151

What does an officer need to search a person not named in a warrant they’re executing?

Answer 151

Police would need independent justification to search a person not listed in the warrant

this justification comes from:
(1) reasonable suspicion that the person is armed
or
(2) probable cause to believe that the person committed, is committing, or is about to commit a crime.

Question 152

does taking of handwriting exemplars violate the 4th, 5th, o 6th amed?

Answer 152

no

Question 153

The Sixth Amendment right to counsel protects non-indigent criminal defendants’ right to choose the attorney who will represent them

Answer 153

The erroneous denial of a defendant’s choice of counsel constitutes structural error and requires automatic reversal of the defendant’s conviction.

Question 154

Does the Fourth Amendment apply to a subpoena for a witness to testify before a grand jury?

Answer 154

no, to be subpoenaed as a witness for a grand jury is not a 4th amend violation

Question 155

if an officer makes an unconstitutional investigatory stop > learns during the stop of an arrest warrant for that suspect > seizes incriminating evidence during a search incident to arrest

is that evidence admissible?

Answer 155

yes

Question 156

in a request for trial by jury, what is relevant: the actual sentence imposed or the max authorized sentencing?

Answer 156

the authorized sentence of a crime
> needs to be more than 6 months

Question 157

can undercover cops induce a D into making statements after the right to counsel attaches?

Answer 157

No; Once the Sixth Amendment right to counsel attaches, statements that a D makes to a police informants are inadmissible without the assistance of counsel

Question 158

Can cops make checkpoints for drugs?

Answer 158

No; they can only do it for drinking

Question 159

true or false:
The Sixth Amendment right to counsel can be waived so long as relinquishment of the right is voluntary, knowing, and intelligent.

Answer 159

true

Question 160

custody

Answer 160

> formal arrest
restraint on freedom of movement (would reasonable person think they could leave?)

Question 161

A defendant must make a specific, unambiguous statement asserting her desire to remain silent. If a defendant invokes her right to remain silent, the interrogator(s) must “scrupulously honor” that request.

Question 162

govt has a duty to disclose exculpatory material to the defendant and if they dont there could be a reversal or a new trial if its found that:

Answer 162

> evidence was favorable to D bc it was exculpatory or impeachment worthy
there was prejudice when earlier disclosure would’ve created a reasonable probability of a different outcome

Question 163

an unlawful arrest doesn’t mean a dismissal of Ds indictment