MBE Criminal Procedure Flashcards
What would be considered a search?
Searching (looking) somewhere where a person has a reasonable expectation of privacy
Who must be conducting a search for constitutional protections to apply?
The government or someone acting under the direction of the government
What is an open field?
Out in the open. No search.
What is the standard to be able to conduct a search?
Probable cause
What if conduct a search without warrant?
Generally, inadmissible. Don’t choose excpetion unless told
Who must issue a warrant?
A neutral and detached magistrate
What must the warrant have?
Particularity. Needs to say where, what, and who will be searched
What happens once police find what was in the warrant?
Search must end
What always applies/always be on the lookout for?
Plain view
Who can consent to a search?
Owner or someone with apparent authority
What are exigent circumstances?
Emergency or urgent situation
What are two examples of exigent circumstances?
1) Fleeing suspect
2) Destruction of evidence
When can you infer exigent circumstances?
Never
Where can police search in a search incident to lawful arrest?
Can search person or anything within reaching distance (wingspan)
When does protective sweep apply?
Need reasonable belief that other suspects are present. Looking for other criminals
When can police stop someone and ask questions?
Reasonable suspicion that criminal activity is afoot
When can police frisk someone?
Reasonable suspicion that there are weapons on that person
What is admissible out of a search of an illegal stop?
Nothing
What do police need to pull someone over?
Any traffic infraction
What do police need to look inside closed compartment of vehicle?
Probable cause
Can you look at whole car if got a tip with specificity?
Yes
When do police need to give defendant Miranda warnings?
Custodial interrogation
When does a custodial interrogation take place?
When person believes they are not free to leave
What is an interrogation?
Police trying to elicit criminal information
Are voluntary statements to the police admissible?
Yes
When do you infer waiver?
Never
Is staying silent a waiver of rights?
No
When is something considered waived?
No coercion, know and understand what you’re doing
What is double jeopardy?
Cannot be tried twice for the same crime
If indicted by grand jury, does double jeopardy kick in?
No
When does double jeopardy apply?
When there has been a trial
When does jury trial begin (for double jeopardy)?
When jury is empaneled and sworn in
When does bench trial begin (for double jeopardy)?
When the first witness is sworn in
When does a trial end (for double jeopardy)
Verdict on the merits. Any technicalities or no final judgment = double jeopardy inapplicable
What is the exception to double jeopardy?
1) Separate sovereign rule
2) Estoppel
What is the separate sovereign rule?
Different courts. If tried in Florida, can still be tried in a different state. If tried in state court, can try in federal court
What is estoppel?
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)
What is the effect (in terms of seizure) if properly searched a place w/o a warrant?
If proper search, can seize the evidence
Can a parent give consent to a search of a child’s room?
Yes, when the parent has general access to the room even if the son or daughter is an adult
Can someone have silence used against them in court after Miranda rights read to them?
No, mere silence is insufficient to have it used against them in court
What to always be on the lookout for in involuntary statements?
Coercion
If there is an unlawful arrest and defendant feels intimidated enough to make a statement to the police, is that admissible?
Yes. Not an involuntary statement because no coercion. Fruit of an unlawful arrest.
Why does defendant not have burden of proving an alibi?
Due process. State still has to establish all elements of a crime beyond a reasonable doubt
What is an IMPROPER remedy for an unlawful arrest?
Dismissing an indictment or subsequent criminal prosecution
Do you need an acquittal or conviction for double jeopardy to come into play?
No
In joint trials, why can’t a non-testifying co-defendant’s inculpatory statements be used?
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.
When does Fifth Amendment right to counsel apply?
Custodial interrogations
Is a statement that is made violating Miranda be admissible?
Yes, but only for impeachment
In a criminal trial, what is the minimum number of jurors allowed under the Sixth and Fourteenth Amendments?
Six
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?
Six
What factors are used in determining whether a defendant’s right to speedy trial was violated?
1) Length of the delay
2) Reason for the delay
3) Whether the defendant asserted his right
4) Prejudice to the defendant
What does the Fifth Amendment NOT protect?
The right to protect others
May the Defendant’s lack of cooperation in an investigation be considered by a judge in imposing a sentence?
Yes
Can a defendant who is on the stand be cross examined about his decision to remain silent?
No. This violates his right to due process of law
In what kind of case may a person invoke their 5th Amendment right against self-incrimination?
At a civil or criminal trial, as long as the answer would tend to connect the witness to the commission of a crime
What is the effect of a jury convicting on a lesser degree?
Implies acquittal of a greater charge, thus barring retrial on the greater charge (double jeopardy)
Do you need a warrant for historical site-location data from a cell provider?
Yes, subpoena is insufficient to get this type of information
What is needed to show ineffective assistance of counsel?
1) defense counsel’s performance was deficient; and
2) the deficiency was prejudicial
Are you in custody if probation officer calls you to their office and you have to answer their questions truthfully?
No. In custody when formal arrest or restraint on freedom of movement of degree associated with formal arrest
When does exclusionary rule not apply?
Grand jury proceedings
If arrested and read Miranda and don’t deny something that could be incriminating, do you need to deny?
No, a defendant in custody has no duty to speak out at all
What if multiple charges brought in one trial but defendant consents to trying them separately?
Double jeopardy not implicated
Can a statement obtained in violation of the 6th Amendment be used to impeach?
Yes
What is use and derivative use immunity?
Guarantees that the testimony obtained and evidence located by means of the testimony will not be used against the witness
What is transactional immunity?
Guarantees immunity from prosecution for any crime related to the testimony of the witness
What kind of immunity is sufficient to extinguish the privilege against self-incrimination?
Use and derivative use immunity
If the police have a valid arrest warrant, when can they forcibly enter into a home?
When the person is believed to be inside and no response occurs (need probable cause to believe the person is in the home)
What is required for a guilty plea to be valid?
It must be made knowing and voluntary, including an understanding that defendant is waiving constitutional right to a jury trial
When is administrative search okay?
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
What is the standard for reversal or a new trial under Brady?
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
What are the requirements for consenting to a search?
The consent must be voluntary and intelligent
What is required for plain view?
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
What is required for a waiver of custodial interrogation rights?
KIV
Knowing, intelligent, voluntary
What must be included in an affidavit supporting a request for a warrant?
Sufficient underlying circumstances to enable the magistrate to make a determination of probable cause
How is sufficiency of officer’s affidavit determined if it’s based on information obtained from informers?
Totality of the circumstances
What two questions to always ask when Fourth Amendment is implicated?
1) Was there governmental conduct
2) Did defendant have a reasonable expectation of privacy
Where do police not need a search warrant?
In a public place
Is an arrest a seizure?
Yes, an arrest is a seizure of the person
Can police get someone’s bank record without a warrant?
Yes because they’re the bank’s business records and no reasonable expectation of privacy
What must a person show to establish ineffective assistance of counsel?
1) Counsel’s performance was deficient
2) Deficiency was prejudicial
Can the court exclude a defendant while a witness is on the stand?
Yes because the right to be present can be forfeited by disruptive behavior
