003 Tn Crimpro Essays

Front 1

What is required for an officer to stop a vehicle.

Imperfect driving alone e.g. making a lane change without signaling does not justify the stop of a car.

If stop of the car is justified, then police can search the passenger container of the car if they have PC to believe that:
1. car contains fruit, instrumentalities, or evidence of a crime or contraband,
2. they lawfully arrest the automobile's occupant's
OR
3. have consent to perform the search.

Back 1

Reasonable suspicion to believe that the operator violated a law or ordinance.

Front 2

plain view doctrine

Back 2

The police may maim a warrantless seizure when
1. they are LEGITIMATELY on the premises,
2. discover evidence in PLAIN VIEW and
3. have probable cause to believe that the item is evidence, contraband or a fruit or instrumentality of crime.

Front 3

May an officer search a vehicle incident to a driver's arrest?

Back 3

Yes, but this search does NOT extend to the trunk.

Search of trunk requires additional PC, which may be supplied by evidence found in tile passenger compartment of the vehicle.
-------
aside TN DISTINCTIONS p.2

If the vehicle in impounded then the police can search the entire car pursuant to an inventory search.
BUT
mere arrest of a driver does not give police carte blanche to impound the vehicle and conduct an inventory search

If the driver can make his ow arrangements to get the car to safety
AND
there is not reasonable cause to take the car into custody, it cannot be impounded.

Front 4

What is the most important area to consider when blood samples are taken in connection with a DUI?

Back 4

Chain of custody

Front 5

How quickly must a defendant be taken before a magistrate after an arrest

Back 5

USSC--∆ must be taken before a magistrate within 48 hours of tile arrest or it is presumed that the delay was UNREASONABLE.

TN-- ∆ must be taken before a magistrate "without unnecessary delay."

magistrate can be EITHER
1. in the county ISSUING the WARRANT
OR
2. in the county where the OFFENSE OCCURRED

Remedy--any statements made during the time will be EXCLUDED

Front 6

When can GENERAL SESSIONS COURT have jurisdiction to hear a misdemeanor?

Back 6

1. ∆ must execute a written waiver of his right to a jury trial,

2. COURT must approve it,

AND

3.DA must CONSENT to the waiver.

Front 7

Does a judge have the authority to reduce a fine imposed by
a jury?

Back 7

Yes. The jury fine reflects the maximum fine which the defendant
may be required to pay.

A judge may reduce or delete the fine, under statutory guidelines, if he believes this is necessary.

Front 8

proving ineffective assistance of counsel in a post-conviction proceeding

Back 8

∆ must show:
1. his atty represented him INEFFECTIVELY
AND
2. that the ineffective representation ADVERSELY AFFECTED the outcome of his case

Front 9

prerequisite for interrogation after arrest

Back 9

After an arrest is made, a CUSTODIAL INTERROGATION (requires (i) custody & (ii) interrogation) cannot occur
UNLESS
1. suspect has been given the Miranda warnings
AND
2.suspect has WAIVED his rights.
-waiver must be knowingly and voluntarily, intelligently based on TOC

Custody: reasonable person in suspect's circumstances would have concluded that he was not FREE TO LEAVE

Interrogation: occurs when officers use words or actions that are likely to produce an incriminating response.

Front 10

May evidence seized by police in reasonable reliance on a facially valid warrant be used?

Back 10

This evidence may be used by the prosecution despite an ultimate finding that the warrant was not supported by PC & courts will not apply the exclusionary rule.
UNLESS
1. the underlying affidavit was so lacking in PC it could not be relied upon
2. warrant was defective on its face
3. affiant mislead the magistrate 4. magistrate "wholly abandoned his judicial role"

Front 11

what is necessary for an officer- administered HGN test to be valid?

Back 11

officer must be:
1. trained in DUls
AND
2. experienced to provide all adequate foundation of the admission o HGN test results.

Front 12

May a prospective witness in a criminal case be forced to speak with either side prior to trial?

Back 12

A witness in a CRIMINAL case can NOT be compelled to speak with either attomey.
BUT
COURT may order a deposition in cases where the testimony is likely to become UNAVAILABLE.

Front 13

5th Amendment privilege against self- incrimination extend to the production of saliva, blood, DNA, etc.?

Back 13

The privilege applies to evidence that is testimonial in nature. i.e.∆ cant be compelled to testify against himself.

Courts have held that these types of evidence are not testimonial in nature.

Front 14

What is the effect of destruction of evidence by the state?

Back 14

The potential effect differs under federal and state constitutional law.

Under the federal Due Process Clause of the 5'th and 14th Am, destruction of evidence violates DP ONLY
when the state acts in BAD FAITH in destroying the evidence.

Under the TN constitution, loss of evidence may violate DP IF the loss would render the trial process FUNDAMENTALLY UNFAIR

fundamental fairness test:


1. First to determine if DP has been violated courts must determine if the state have a DUTY to protect the evidence?

IF there is a duty and it has in fact been breached, three factors are considered.

1. CULPABILITY of the state
2. SIGNIFICANCE of the evidence
3. whether there is OTHER evidence to SUSTAIN the verdict.

Front 15

What should a defendant do if more information is required regarding the indictment.

Back 15

∆ should file a motion for a BILL OF PARTICULARS

---
Incidentally . . .

indictment is a formal charge made on motion of a prosecutor, approved by a grand jury (based on PC) and signed by the foreperson of the grand jury.

Must include:
-name of state, county and court
-words "against the peace AND dignity of the STATE"
-facts constituting the offense:

1. in such a manner to enable a person of common understanding to know what is intended
AND
2. with a degree of certainty which will enable the court, on conviction, to pronounce the proper judgment.

Front 16

How does a ∆ convince the court that multiple offenses should be filed separately

Back 16

∆ must be file a MOTION for SEVERANCE.

∆ must factually demonstrate an ABSENCE OF COMMON PLAN OR SCHEME

Front 17

Do the principles of double jeopardy prohibit prosecution by the state and federal prosecutors on the same offense?

Back 17

No.
Double jeopardy only bars a single sovereign from trying or punishing a person twice for the same conduct.

State and federal govemments are considered separate sovereigns for double jeopardy purposes.

-municipality is NOT a separate sovereign
i.e. local conviction would bar state prosecution for same offense

Front 18

procedures to be followed when the defense rests and the ∆ has not testified

Back 18

∆'s right to testify is a FUNDAMENTAL and PERSONAL right.

Thus, COURT must make an EXPRESS INQUIRY, preferably by holding a hearing to determine that the ∆:
1. INTENDED to waive his right to testify
AND
2. ∆ waived this right KNOWINGLY< INTELLIGENTLY, and VOLUNTARILY

Front 19

SOL on all claims for post-conviction relief

Back 19

1 year.

Front 20

What are the factors to be considered in a determination of whether a delay in the trial violates the defendant's right to a speedy trial

Back 20

decided CASE-BY-CASE on the following factors:

1. Length of the delay
2. REASON for delay
3. whether ∆ DEMANDED a speedy trial
4. whether ∆ was PREJUDICED by the delay

Remedy--DISMISSAL of charges

Front 21

Right to Waive Counsel

Back 21

∆ has a constitutional right to waive 6th amendment right to counsel.

1. court must make a determination, ON RECORD, that ∆'s waiver is KNOWING and INTELLIGENT.

IN making determination court must consider:
(i) background, knowledge, and experience of ∆
AND
(ii). ∆'s knowledge, if any, of the law and applicable evidentiary and procedural rules.

3. court must inform ∆ of RISKS of going pro se.

IF a waiver results, it should be FULLY REFLECTED in the record.

Front 22

Notice of Appeal/New Trial--SOL

Back 22

appeal-->within 30 days of JUDGMENT
new trial-->within 30 days of ORDER of SENTENCE

Front 23

Plain Error Rule

Back 23

Where a lower court makes a finding of fact, it will be reviewed for plain error.

It will not be reversed
UNLESS
the lower court has made a decision that has its basis in a plainly erroneous understanding of the facts.

Front 24

Jury instruction re circumstantial evidence "CE"

Back 24

1. CE is indirect evidence that gives clues about what happened.
2. SOLELY up to the jury to decide whether something has been proved by CE
3. jury must be convinced beyond a reasonable doubt, that ∆ committed the crime; CE must exclude all other reasonable theories except guilt
4. jury decides how much weight to give CE in light of reason, experience and common sense.

Front 25

Properly executing an arrest warrant"W"

Back 25

Officers must use REASONABLE CARE when executing an warrant to ensue that the person arrested is the person named in the arrest warrant.

Front 26

Exclusionary Rule/Warrant Exceptions--Generally

Back 26

4th Am. applicable tot he states through the DP clause of the 14th Am. requires seizures of evidence to be reasonable.

Generally to be reasonable, seizures of evidence must be made pursuant to warrant.

However there are 6 recognized exceptions tot his rule; including [insert applicable exception]

Evidence seized in exclusion of the 4th amendment generally must be excluded from admission if it will discourage police from acting unlawfully in the future.

Front 27

Requesting Expert services for indigent client

Back 27

∆ must file a motion:
1. requesting services, outlining in detail the need for services, and the scope and timing of services
AND
2. identifying the proposed provided

court may then hold an ex parte hearing on the NEED and REASONABLENESS of the request

IF request is approved, it must also be submitted to and approved by the administrative office of the courts.

Front 28

pretrial notice of alibi defense what triggers?

Back 28

A request by the state.

∆ must then provide notice of: -specific PLACES where he claims to have been at the time of the crime
-names of any WITNESSES who will be called to establish or corroborate the alibi claim.

STATE must then provide a list a WITNESSES it intends to call to place the ∆ at the scene o the crime or otherwise rebut his alibi defense.

Front 29

Warrant exception--consent

Back 29

W not needed to conduct a search with valid consent, which can generally be granted by anyone with APPARENT ACCESS to the place to be searched.

-if two people are reasonably believed to share authority one cannot consent over the other's express refusal. .

Front 30

Confrontation Clause

Back 30

prohibits introduction of testimonial evidence
UNLESS
∆ had an opportunity to cross-examine the declarant at the time the statement was admitted.

-answers to police questioning in 911 calls are non-testimonial if the answers are made to enable the police to respond to an ongoing emergency.
BUT
answers to police questioning ARE generally testimonial in nature

Front 31

Reasonable Expecation of privacy "REP" Question

Back 31

4th Am protects against unreasonable searches and seizures if a person has a REP in the place to be searched or the items being seized.
-judged by TOC.