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Question 1

What does incorporation mean with regard to criminal procedure?

Answer 1

The 14th amendment is a funnel that passes the bill of rights down to the states. That is how due process gets applied to the states. Amendments are not applied to the states, but due process is applied in compliance with standards that apply to federal government in amendments. Fundamental rights are incorporated against states so that all procedural protections except the fifth amendment right to a jury apply.

Essay: always mention the 14th incorporation when there is a state actor instead of a federal one. Ie: “6th amendment applies to the states by way of the 14th amendment.”

Question 2

What are things that do not apply to the states because they only apply federally?

Answer 2

The grand jury rule, federal supervisory power, sixth amendment right to counsel

Question 3

What are remedies in criminal procedure?

Answer 3

Different circumstances where the defendant can prevent the use of evidence against him that was gotten in violation of his rights

Question 4

What is the exclusionary rule?

Answer 4

Any evidence that was gotten in violation of a suspect’s fourth amendment, fifth amendment, or sixth amendment rights is often excluded at trial.

Question 5

Who has the burden of proof with regard to the exclusionary rule?

Answer 5

The government has to show admissibility of the evidence by a preponderance of the evidence

Question 6

What triggers the exclusionary rule?

Answer 6

Police conduct that is sufficiently deliberate so that exclusion can meaningfully deter it

Question 7

What is the rationale behind the exclusionary rule?

Answer 7

To deter police misconduct, uphold judicial integrity, assure that victims of unlawful government conduct will be protected and that the government will not profit from lawless behavior.

Question 8

What has been the result of the exclusionary rule?

Answer 8

An increase in search warrants, better educated police, better relationships between the police and the prosecutors, and there’s no incentive to violate the fourth amendment

Question 9

What amendment does the exclusionary rule mostly apply to?

Answer 9

The fourth amendment

Question 10

What are the factors to determine if the exclusionary rule will apply?

Answer 10

– CULPABILITY: culpability of the police and flagrancy of their misconduct
– DETERRENCE: potential to deter wrongful conduct

Question 11

What is the balancing that must happen in order for the exclusionary rule to apply?

Answer 11

The benefits of the deterrence must outweigh the costs. If only marginal deterrence will occur, the exclusionary rule might not apply

Question 12

What are the limitations to the exclusionary rule?

Answer 12

– grand jury exception
– not available for civil or parole revocation proceedings, preliminary hearings, probationary hearings, or civil deportation hearings
– doesn’t apply to knock and announce violations, proceedings to forfeit contraband, negligence pleas or those removed from the point of search and seizure
– must violate the Constitution or federal statute for this exclusion to apply

Question 13

What is the grand jury exception to the exclusionary rule?

Answer 13

The exclusionary rule does not apply to grand juries. Grand juries can hear evidence that would be barred from a criminal trial under the exclusionary rule.

Question 14

How do you get standing in order for the exclusionary rule to apply?

Answer 14

Anyone that was personally searched or seized has standing to complain about it.

Question 15

Would a D have standing to challenge evidence that was seized in violation of a third-party’s constitutional rights?

Answer 15

No, the defendant must have been personally wronged to be entitled to the remedy [reasonable expectation of privacy]

Question 16

What is the key to having standing under the exclusionary rule?

Answer 16

Having a reasonable expectation of privacy

Question 17

What is a reasonable expectation of privacy?

Answer 17

That person must’ve had free access to the premises and the right to exclude others from it

Question 18

If testimony is gotten from the defendant in order to establish standing, can he later have that evidence used against him to show his guilt?

Answer 18

No

Question 19

If someone was aggrieved by an illegal search or seizure because of damaging evidence that was gotten through the search of a third person’s premises or property, does he have standing to sue?

Answer 19

No, because he didn’t have his fourth amendment rights infringed. People that are aggrieved solely from damaging evidence being introduced cannot bring suit unless their rights were violated by the search itself

Question 20

Can the passengers in a getaway car after a robbery contest the search of the car and the introduction of a gun being admitted against them?

Answer 20

No, because they did not have a property interest in the car or the property that was seized. But when traffic stops occur, passengers and the driver all get seized, so then passengers can contest the constitutionality of the stop if there was no probable cause for stopping the car

Question 21

If you own something in someone else’s purse or possession, does that give you standing to challenge the search of it?

Answer 21

No

Question 22

If the defendant was present during the search of his friend’s apartment and he had permission to stay there because he had a key and his clothes were there, can he challenge the legality of a search?

Answer 22

Yes, because he was legitimately on the premises where the search happened

Question 23

Do all fourth amendment violations trigger standing?

Answer 23

No. Standing requires a reasonable expectation of privacy in the place that was searched. You need to have a possessory interest in the property to have standing. It’s not enough that you were just present when a search or seizure happened.

Question 24

Can you create a reasonable expectation of privacy just by putting an item in a certain location?

Answer 24

No