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MBE > MBE Criminal Procedure > Flashcards

MBE Criminal Procedure Flashcards

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1
Q

What would be considered a search?

A

Searching (looking) somewhere where a person has a reasonable expectation of privacy

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2
Q

Who must be conducting a search for constitutional protections to apply?

A

The government or someone acting under the direction of the government

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3
Q

What is an open field?

A

Out in the open. No search.

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4
Q

What is the standard to be able to conduct a search?

A

Probable cause

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5
Q

What if conduct a search without warrant?

A

Generally, inadmissible. Don’t choose excpetion unless told

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6
Q

Who must issue a warrant?

A

A neutral and detached magistrate

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7
Q

What must the warrant have?

A

Particularity. Needs to say where, what, and who will be searched

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8
Q

What happens once police find what was in the warrant?

A

Search must end

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9
Q

What always applies/always be on the lookout for?

A

Plain view

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10
Q

Who can consent to a search?

A

Owner or someone with apparent authority

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11
Q

What are exigent circumstances?

A

Emergency or urgent situation

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12
Q

What are two examples of exigent circumstances?

A

1) Fleeing suspect

2) Destruction of evidence

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13
Q

When can you infer exigent circumstances?

A

Never

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14
Q

Where can police search in a search incident to lawful arrest?

A

Can search person or anything within reaching distance (wingspan)

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15
Q

When does protective sweep apply?

A

Need reasonable belief that other suspects are present. Looking for other criminals

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16
Q

When can police stop someone and ask questions?

A

Reasonable suspicion that criminal activity is afoot

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17
Q

When can police frisk someone?

A

Reasonable suspicion that there are weapons on that person

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18
Q

What is admissible out of a search of an illegal stop?

A

Nothing

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19
Q

What do police need to pull someone over?

A

Any traffic infraction

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20
Q

What do police need to look inside closed compartment of vehicle?

A

Probable cause

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21
Q

Can you look at whole car if got a tip with specificity?

A

Yes

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22
Q

When do police need to give defendant Miranda warnings?

A

Custodial interrogation

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23
Q

When does a custodial interrogation take place?

A

When person believes they are not free to leave

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24
Q

What is an interrogation?

A

Police trying to elicit criminal information

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25
Q

Are voluntary statements to the police admissible?

A

Yes

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26
Q

When do you infer waiver?

A

Never

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27
Q

Is staying silent a waiver of rights?

A

No

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28
Q

When is something considered waived?

A

No coercion, know and understand what you’re doing

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29
Q

What is double jeopardy?

A

Cannot be tried twice for the same crime

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30
Q

If indicted by grand jury, does double jeopardy kick in?

A

No

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31
Q

When does double jeopardy apply?

A

When there has been a trial

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32
Q

When does jury trial begin (for double jeopardy)?

A

When jury is empaneled and sworn in

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33
Q

When does bench trial begin (for double jeopardy)?

A

When the first witness is sworn in

34
Q

When does a trial end (for double jeopardy)

A

Verdict on the merits. Any technicalities or no final judgment = double jeopardy inapplicable

35
Q

What is the exception to double jeopardy?

A

1) Separate sovereign rule

2) Estoppel

36
Q

What is the separate sovereign rule?

A

Different courts. If tried in Florida, can still be tried in a different state. If tried in state court, can try in federal court

37
Q

What is estoppel?

A

If any element from trial 1, can’t use those elements to prove the second trial (ex: If not guilty of bank robbery, can’t charge for felony murder)

38
Q

What is the effect (in terms of seizure) if properly searched a place w/o a warrant?

A

If proper search, can seize the evidence

39
Q

Can a parent give consent to a search of a child’s room?

A

Yes, when the parent has general access to the room even if the son or daughter is an adult

40
Q

Can someone have silence used against them in court after Miranda rights read to them?

A

No, mere silence is insufficient to have it used against them in court

41
Q

What to always be on the lookout for in involuntary statements?

A

Coercion

42
Q

If there is an unlawful arrest and defendant feels intimidated enough to make a statement to the police, is that admissible?

A

Yes. Not an involuntary statement because no coercion. Fruit of an unlawful arrest.

43
Q

Why does defendant not have burden of proving an alibi?

A

Due process. State still has to establish all elements of a crime beyond a reasonable doubt

44
Q

What is an IMPROPER remedy for an unlawful arrest?

A

Dismissing an indictment or subsequent criminal prosecution

45
Q

Do you need an acquittal or conviction for double jeopardy to come into play?

A

No

46
Q

In joint trials, why can’t a non-testifying co-defendant’s inculpatory statements be used?

A

Confrontation Clause of the Sixth Amendment requires that an original defendant be given the opportunity to cross examine a co-defendant whose confession is being used. Limiting instruction insufficient.

47
Q

When does Fifth Amendment right to counsel apply?

A

Custodial interrogations

48
Q

Is a statement that is made violating Miranda be admissible?

A

Yes, but only for impeachment

49
Q

In a criminal trial, what is the minimum number of jurors allowed under the Sixth and Fourteenth Amendments?

A

Six

50
Q

How many months of imprisonment are required to make an offense “serious” for determining whether a defendant has a constitutional right to a jury trial?

A

Six

51
Q

What factors are used in determining whether a defendant’s right to speedy trial was violated?

A

1) Length of the delay
2) Reason for the delay
3) Whether the defendant asserted his right
4) Prejudice to the defendant

52
Q

What does the Fifth Amendment NOT protect?

A

The right to protect others

53
Q

May the Defendant’s lack of cooperation in an investigation be considered by a judge in imposing a sentence?

A

Yes

54
Q

Can a defendant who is on the stand be cross examined about his decision to remain silent?

A

No. This violates his right to due process of law

55
Q

In what kind of case may a person invoke their 5th Amendment right against self-incrimination?

A

At a civil or criminal trial, as long as the answer would tend to connect the witness to the commission of a crime

56
Q

What is the effect of a jury convicting on a lesser degree?

A

Implies acquittal of a greater charge, thus barring retrial on the greater charge (double jeopardy)

57
Q

Do you need a warrant for historical site-location data from a cell provider?

A

Yes, subpoena is insufficient to get this type of information

58
Q

What is needed to show ineffective assistance of counsel?

A

1) defense counsel’s performance was deficient; and

2) the deficiency was prejudicial

59
Q

Are you in custody if probation officer calls you to their office and you have to answer their questions truthfully?

A

No. In custody when formal arrest or restraint on freedom of movement of degree associated with formal arrest

60
Q

When does exclusionary rule not apply?

A

Grand jury proceedings

61
Q

If arrested and read Miranda and don’t deny something that could be incriminating, do you need to deny?

A

No, a defendant in custody has no duty to speak out at all

62
Q

What if multiple charges brought in one trial but defendant consents to trying them separately?

A

Double jeopardy not implicated

63
Q

Can a statement obtained in violation of the 6th Amendment be used to impeach?

A

Yes

64
Q

What is use and derivative use immunity?

A

Guarantees that the testimony obtained and evidence located by means of the testimony will not be used against the witness

65
Q

What is transactional immunity?

A

Guarantees immunity from prosecution for any crime related to the testimony of the witness

66
Q

What kind of immunity is sufficient to extinguish the privilege against self-incrimination?

A

Use and derivative use immunity

67
Q

If the police have a valid arrest warrant, when can they forcibly enter into a home?

A

When the person is believed to be inside and no response occurs (need probable cause to believe the person is in the home)

68
Q

What is required for a guilty plea to be valid?

A

It must be made knowing and voluntary, including an understanding that defendant is waiving constitutional right to a jury trial

69
Q

When is administrative search okay?

A

1) High governmental interest at stake
2) Warrantless inspections are necessary to further those interests
3) statute allowing the inspections serves the same functions as a warrant

70
Q

What is the standard for reversal or a new trial under Brady?

A

Defendant needs to prove that:

1) evidence was favorable because it is impeaching or exculpatory; and
2) prejudice resulted, meaning earlier disclosure of the evidence would have created a reasonable probability of a different outcome

71
Q

What are the requirements for consenting to a search?

A

The consent must be voluntary and intelligent

72
Q

What is required for plain view?

A

1) Lawful place
2) evidence is in plain view
3) probable cause to believe the item is evidence, contraband, or a fruit/instrumentality of a crime

73
Q

What is required for a waiver of custodial interrogation rights?

A

KIV

Knowing, intelligent, voluntary

74
Q

What must be included in an affidavit supporting a request for a warrant?

A

Sufficient underlying circumstances to enable the magistrate to make a determination of probable cause

75
Q

How is sufficiency of officer’s affidavit determined if it’s based on information obtained from informers?

A

Totality of the circumstances

76
Q

What two questions to always ask when Fourth Amendment is implicated?

A

1) Was there governmental conduct

2) Did defendant have a reasonable expectation of privacy

77
Q

Where do police not need a search warrant?

A

In a public place

78
Q

Is an arrest a seizure?

A

Yes, an arrest is a seizure of the person

79
Q

Can police get someone’s bank record without a warrant?

A

Yes because they’re the bank’s business records and no reasonable expectation of privacy

80
Q

What must a person show to establish ineffective assistance of counsel?

A

1) Counsel’s performance was deficient

2) Deficiency was prejudicial

81
Q

Can the court exclude a defendant while a witness is on the stand?

A

Yes because the right to be present can be forfeited by disruptive behavior

MBE (8 decks)

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