MBE Criminal Procedure

Question 1

Search & Seizure: Search Elements
1. Who is conducting the search?
2. What is a search?
3. When can they search?

Answer 1

1) Government official (police)

• or one under the direction of a government official.

2) Anywhere where you have a reasonable expectation of privacy

• Open Fields: no expectation of privacy

3) If they have PROBABLE CAUSE

• reasonable person can conclude items related to criminal activity can be found at the location

BONUS: When ALL 3 elements are met, you now need a warrant for the evidence to be admissible.

• general rule - no warrant, no admissibility
• see warrant exceptions - 7

Question 2

Search & Seizure: Warrants (requirements)

Answer 2

1) Neutral and detached magistrate determines probable cause issued timely

• Informants tip is okay to rely on as long as reliable.
• If the cops rely on info that turns out not to be valid, search is still ok.

2) Specific place, items and/or people and scope detailed in the warrant

• Make sure you read facts carefully as to whether the cops EXCEEDED SCOPE of Search (Exception > Plain View)
• once they find what they look for, they must cease searching.

Question 3

Search & Seizure: Exceptions to Warrant Requirement

Answer 3

When a WARRANT is NOT REQUIRED
(CHEAPSS)

1) Consent - Owner of property or 3rd party with actual or apparent authority. (joint control or shared use of premises)

2) Hot Pursuit

3) Exigent Circumstances - Emergency, reasonable belief evidence may be lost or destroyed (or suspect fleeing)

4) Automobiles - Probable Cause that the car has contraband.

• Plain view only, need additional PC to search closed compartments.

5) Protective Sweep - allowed if reasonable belief other SUSPECTS are in the house.

6) Stop and Frisk

• (Stop) To ask Q’s - Cops need REASONABLE SUSPICION that criminal activity is afoot.
• to Frisk - need REASONABLE SUSPICION that there is a weapon on their person

7) Search Incident to a Lawful Arrest

• Person/area within ones wingspan

Question 4

Miranda:
1) When do Miranda protections apply?
2) Waiver of Miranda

Answer 4

1) ONLY When there is (1) CUSTODIAL (2) INTERROGATION

• Without Miranda warnings, statements made during custodial interrogation are inadmissible.
• Voluntary Statements made while under custody are admissible!!! NEED BOTH
• If Defendant asks for Attorney, ALL Q’s MUST STOP

CUSTODY: You are in custody when you are not free to leave or a reasonable person would not feel free to leave. (objective standard)

• Do not need cuffs

INTERROGATION: Questions or actions that cops knew or should have known were likely to elicit an incriminating response.

2) WAIVER OF MIRANDA – MUST be VOLUNTARY

• Totality of the circumstances.
• No duress, or coercive behavior.
• Look at age, education, and experience.

Question 5

Double Jeopardy:
When does it apply?
Estoppel (+ Sovereign Rule Exception)

Answer 5

Defendant cannot be tried for the same crime twice. For the rule to apply:

When does it Apply?

1) There must be a “First TRIAL”

• If Grand Jury fails to indict or if the defendant went through other pretrial hearings, anything that occurs prior to trial starting, double jeopardy would not apply.
• Trial starts (in a jury trial) when jury is sworn in or (in a bench trial) when first witness is sworn in

2) There must be a final judgment on the MERITS of the first case

• no procedural dismissal, jury tampering, etc.

ESTOPPEL: if you need one of the elements from Trial #1 to find guilty in Trial #2, and already found not guilty in Trial #1 on the merits, CAN’T be tried.

Example:

• D tried for bank robbery where a security guard was shot.
• not guilty on the bank robbery trial
• security guard dies after trial ends
• Felony murder trial CAN’T HAPPEN but involuntary manslaughter can.

“SOVEREIGN RULE” exception: Even with a “first trial” decided on the merits, D can still be tried in ANOTHER STATE or in FEDERAL Court

Question 6

Right to Jury Trial

Answer 6

Right to impartial jury where imprisonment of more than 6 months is possible

Question 7

Right to Counsel

Answer 7

You have a right to counsel AT ALL CRITICAL STAGES OF PROCEEDINGS

Invoking BEFORE vs. AFTER Indictment
1) BEFORE Indictment = You have 5th amendment right to counsel (custodial interrogations)

• Effect: If a defendant has invoked the 5th Amendment right to counsel, no interrogation may be requested by police at any point going forward; 6th Amendment police can still request or try to get a waiver.

2) AFTER Indictment = You have 6th amendment right to counsel (criminal proceedings)

• The right automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment.
• Effect: D is entitled to the presence of counsel during interrogation, police are obligated to inform them that an attorney has been trying to reach him, can’t interfere with the right, etc.
• Effect: If a defendant has invoked the 5th Amendment right to counsel, no interrogation may be requested by police at any point going forward; 6th Amendment police can still request or try to get a waiver and so long as the waiver is knowing and voluntary, any statement made is admissible against the defendant.