2008 Mbe Criminal Procedure

Front 1

Two provisions of the Bill of Rights not held binding on the states

Back 1

1. Right to indictment by a grand jury
2. Prohibition against excessive bail

Front 2

Fruit of the poisonous tree doctrine

Back 2

All evidence obtained or derived from exploitation of illegaly obtained evidence

Front 3

Exception to the scope of the fruit of the poisonous tree doctrine

Back 3

Does not apply where police illegality is a violation of Miranda1

Front 4

What will break the causal chain to nullify the fruit of the poisonous tree doctrine

Back 4

1. Independent source
2. Intervening act of free will by the D
OR
3. Inevitable discovery

Front 5

Limitations on the Exclusionary Rule (i.e. not applicable to what)

Back 5

1. Grand Juries
2. Civil Proceedings
3. Internal Agency Rules
4. Parole Revocation proceedings
5. Good faith reliance
6. Defective search warrant
7. Clerical error

Front 6

Police will NOT get the benefit of a good faith defense where

Back 6

1. Affidavit so lacking in probable cause
2. Warrant defective on its face
3. Police lied/misled magistrate
4. Magistrate has wholly abandoned his judicial role

Front 7

How can you use excluded evidence for impeachment purposes

Back 7

Evidence obtained illegaly may still be used to impeach the defendant's credibility (but no other witness)

Front 8

Standard for reviewing improperly obtained evidence to admit at trial

Back 8

Harmless error test

Front 9

Harmelss error test

Back 9

A conviction can be upheld if the conviction would have resutled despite the improper evidence (govt. carries the burden to show harmless beyond a reasonable doubt)

Front 10

Defendant's right regarding admissibility of evidence

Back 10

- Right to a hearing by a judge out of the presence of the jury;
- Govt must establish admissibility by a preponderance;
- Right to testify without this being used against him

Front 11

What constitutes a seizure of the person

Back 11

When a reasonable person would believe that he is not free to leave (requires a physical application of force or a submission to show of force)

Front 12

Can exclusion be raised as a remedy for violation of the "knock and announce" rule

Back 12

No

Front 13

An arrest must be based on

Back 13

Probably cause present when the officer makes the arrest

Front 14

Mistaken offense for arrest

Back 14

Will not invalidate so long as officer had some other grounds on which to base probably cause

Front 15

Warrant requirement for arrests

Back 15

In public, generally not required, even if there is time to get a warrant

Front 16

Home arrest warrant requirement

Back 16

Must have an arrest warrant to effect a non-emergency arrest in a home

Front 17

Effect of an invalid arrest on subsequent criminal prosecution

Back 17

By itself, no impact; look for fruit of the poisonous tree

Front 18

To detain for a Stop and Frisk police must have

Back 18

- Stop: Reasonable suspicion supported by articulable facts of criminal activity
- Frisk: reasonable suspicion detainee is armed and dangerous

Front 19

Reasonable suspicion defined

Back 19

Totality of the circumstances

Front 20

Source of reasonable suspicion

Back 20

Need not arise from officer's personal knowledge

Front 21

Informant's tip as basis for reasonable suspicion

Back 21

Must be accompanied by indicia of reliability

Front 22

Development of probable cause

Back 22

- Invesitgatory detention
- Probable cause
- Arrest
- Full search incident to arrest

Front 23

Authority to use roadblocks

Back 23

1. Must stop cars on the basis of some neutral, articulable standard (every third car)
AND
2. Be designed to serve purpose closely related to a particular problem related to autos and their mobility

Front 24

Validity of pretextual stops

Back 24

Valid to stop where traffic law violted even where ultimate motive is to investigate whether some other law violated

Front 25

Detention to obtain warrant

Back 25

If probable cause exists police may detain person from house to get warrant to search

Front 26

Does the D have a Fourth Amendment right

Back 26

1. Was there govt. conduct
2. Did D have a reasonable expectation of privacy
3. If so, did police have a valid warrant
4. No valid warrant - did police make a valid warrantless search/seizure (6 possibilities)

Front 27

Government conduct (2)

Back 27

1. Publicly paid officers
2. Citizens acting at their direction

Front 28

Legitimate expectation of privacy where (3); (automatically confers standing)

Back 28

1. Owned or had a right to possess place searched
2. Place searched was in fact person's home
3. Overnight guest

Front 29

May have standing where (2)

Back 29

1. Ownership of property seized
2. Present at search

Front 30

Things held out to the public

Back 30

1. Sound of your voice
2. Handwriting
3. Paint on car
4. Smell of luggage
5. Account records at bank
6. Car's movement
7. Anything visible in open fields
8. Anything visible from a flyover
9. Garbage set out on curb for collection

Front 31

Dog sniffs at traffic stops

Back 31

Okay so long as does not extend beyond time to issue ticket and conduct ordinary inquiries incident to stop

Front 32

Technologically enhances search of homes

Back 32

Issue: is the technology in question in general public use

Front 33

Requirments of a Warrant

Back 33

1. Issued by a Neutral and Detached Magistrate
2. Based on Probable Cause
3. Particularly describes the place and items

Front 34

Anticipatory probable cause

Back 34

Sufficient that there is reason to believe seizable evidence will be found when search is conducted

Front 35

Use of informers to establish probable cause - sufficiency established by

Back 35

Totality of the circumstances; reliability, credibility NOT a prerequisite

Front 36

Identity of informer

Back 36

May remain anonymous

Front 37

A search warrant will be invalid where D establishes (3)

Back 37

1. Affidavit included False Statment of officer filing
2. Affiant Intentionally or Recklessly include such statement
AND
3. False statement was Material to finding probable cause

Front 38

Validity of imprecise warrant based on precise affidavit

Back 38

Not valid; Warrant must be precise on its face

Front 39

Neutral and detached magistrate requirement

Back 39

- State attorney general NOT
- Clerk of court may issue for violations of city ordinances

Front 40

Execution of warrant (6)

Back 40

1. By police
2. Without unreasonable delay
3. Must knock and accounce
4. May seize any contraband product of search
5. CANNOT search persons on premises not named in warrant (unless probable cause arises)
6. Implicit authority for limited detention of persons on premises

Front 41

"Knock and Announce" Rule and exception

Back 41

15-20 second delay UNLESS it would be dangerous/futile/would inhibit the investigation

Front 42

Exceptions to the warrant requirement

Back 42

1. Search incident to a lawful arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent evidence, and other Emergencies

Front 43

Scope of search incident to a lawful arrest

Back 43

Withous a warrant: Wingspan and protective sweep for accomplices (must be contemporaneous in time and place)

Front 44

Scope of search of auto incident to lawful arrest

Back 44

Passenger compartment (including containers) but NOT the trunk (must be contemporaneous in time and place)

Front 45

Scope of search incident to incarceration

Back 45

an arrestee's personal belongings and an entire impounded vehicle

Front 46

Search of Auto without warrant

Back 46

Probable cause it contains contraband (same level as needed to get a search warrant)

Front 47

Scope of search of Auto based on full probable cause

Back 47

Entire vehicle (including trunk) and any containers within the vehicle that may contain the suspected contraband

Front 48

Contemporaneous requirment for search of autos

Back 48

Not required - vehicle may be towed

Front 49

Plain View Doctrine

Back 49

1. Legitimately on the premises
2. Discover evidence, fruits or instrumentalities of crime or contraband
3. Such evidence is in plain view
AND
4. Have probable cause the item is contraband

Front 50

Consent to false announcement of a warrant

Back 50

Negates the consent - no authority to search

Front 51

Who may consent

Back 51

Any person with an apparent equal right to use or occupy the property

Front 52

Scope of search based on consent

Back 52

Limited to those areas to which a reasonable person under the circumstances would believe it extends

Front 53

Scope of search incident to Stop and Frisk

Back 53

Pat down of outer clothing

Front 54

Scope of search of auto incident to a properly stopped traffic violation

Back 54

- May remove driver from car and
- IF reasonable belief person is dangerous
- May search area limited to those in which a weapon may be placed or hidden

Front 55

Seizure based on Plain Feel

Back 55

Incident to a Terry stop, officer may seize any item reasonably believes is contraband based on its "plain feel"

Front 56

Hot pusuit exception

Back 56

Officers in hot pursuit of a Fleeing Felon may make a warranltess search and seizure (even into a dwelling)

Front 57

Evanescent Evidence Exception

Back 57

police may seize without a warrant evidence likely to disappear before a warrant can be obtained

Front 58

Standard required for administrative searches (and two exceptions)

Back 58

- Need a showing of a general and neutral enforcement plan to secure warrant
- EXCEPTIONS: contaminated food and highly regulated industries

Front 59

Public school searches

Back 59

Do not need a warrant or probable cause; only reasonable grounds for the search

Front 60

Searches on probationers

Back 60

Where statute provides that probationer consents Court has upheld search of person and home even where no reasonable suspicion

Front 61

Warrant authorizing a wiretap must meet the following requirements (6)

Back 61

1. Probable cause of a specific crime
2. Suspected persons to be heard are specifically named
3. Describes with particularity
4. Limited to short duration
5. Provisions for termination
6. Return to court to show conservations intercepted

Front 62

How to balance the reasonableness of searches into a persons body

Back 62

Balance society's need for the evidence against the magnitude of intrusion

Front 63

Voluntariness of confessions determined in light of

Back 63

Totality of circumstances

Front 64

Right to counsel applies to what parts of a criminal prosecution

Back 64

All critical stages - adversairal judicial proceedings

Front 65

Right to counsel is offense

Back 65

Specific

Front 66

Blockburger Test for "different offenses"

Back 66

Different if each requires proof of an additional element that the other crime does not

Front 67

As a prerequisite to the admissibility of any statement made by the accused during a custodial interrogation there must be (2)

Back 67

1. Miranda warnings
AND
2. Valid waiver

Front 68

Need for Miranda warnings triggered by

Back 68

1. Custody
AND
2. Interrogation

Front 69

Waiver of Miranda warnings

Back 69

Must be knowing, voluntary, and intelligent; look at totality of circumstances; will not be presumed from silence

Front 70

Limtitation on scope of Miranda warnings

Back 70

Inapplicable to grand jury hearing

Front 71

Differentiate between Right to Remain Silent and Right to Counsel

Back 71

- Silent: all questioning related to the particular crime must stop
- Counsel: all questioning must cease (not offense specific)

Front 72

Amiguity of request

Back 72

Must be unambiguous; police may continute to interrogate until unambiguous request is made

Front 73

Statements obtained in violation of Miranda, but otherwise voluntary may be used how

Back 73

To impeach defendant's trial testimony

Front 74

Involuntary confessions

Back 74

Inadmissible for any purpose

Front 75

Public safety exception to Miranda

Back 75

If police interrogation is reasonably prompted by concern for public safety, questions obtained in violation of Miranda may be used in court (scope unclear, probably limited)

Front 76

When does 6th Amendment Right to Counsel exist

Back 76

At any pot-charge lineup or showup; NOT for a photo identification

Front 77

Due Process standard relating to identification

Back 77

- Unnecessarily suggestive
AND
- Substantial likelihood of misidentification
(a difficult test to meet)

Front 78

Remedy for an unconstitutional identification

Back 78

Exclusion of the in-court identication; severe and rarely granted

Front 79

Refusal to grant bail or the setting of excessive bail appealable when

Back 79

Immediately

Front 80

Constitutionality of pretrial detention

Back 80

Not a violation of due process

Front 81

Defendant's lack of access regarding grand juries (4)

Back 81

- No right to notice
- No right to be present
- No right to introduce evidence
- No right to counsel or Miranda

Front 82

Right to unbiased judge

Back 82

Violation of due process where judge shown to have
- Actual Malice
OR
- Financial Interest

Front 83

Right to trial by jury limited to what kind/level of offense

Back 83

Serious offenses only - imprisonment for over 6 months

Front 84

Minimum number of jurors required

Back 84

Six (must be unanimous)

Front 85

Unanimity of jury

Back 85

No right to a unanimous verdict (9-3 okay)

Front 86

Venire must be selected from

Back 86

A representative corss-section of the community

Front 87

Preemptory challenge limited by Equal Protection clause how

Back 87

Forbids use of preemptory challenge to exlcude based on race or gender

Front 88

Effective assistance of counsel right extends to

Back 88

First right of appeal

Front 89

Circumstances constituting ineffective assistance of counsel

Back 89

1. Deficient performance
AND
2. Result of the proceeding would have been different

Front 90

Basis for an attack on a guilty plea after sentence

Back 90

1. Plea involuntary
2. Lack of jurisdiction
3. Ineffective assitance of counsel
4. Failure to keep the plea bargain

Front 91

Failure of death penalty statute to provide D opporutunity to show mitigating factors is

Back 91

Unconstitutional

Front 92

Any automatic category for imposition of death penalty is

Back 92

Unconstitutional

Front 93

Any limits on number of mitigating factors presentable in death case

Back 93

Unconstitutional

Front 94

Trier of fact to determine aggravating factors justifying imposition of death must be

Back 94

Jury (not a judge)

Front 95

Jeopardy attaches for jury trials

Back 95

Empaneling and swearing in of the jury

Front 96

Jeopardy attaches for bench trials

Back 96

When the first witness is sworn

Front 97

Jeopardy in civil proceedings

Back 97

Generally does NOT attach

Front 98

Exceptions permitting retrial

Back 98

1. Hung jury
2. Mistrial for manifest necessity
3. Retrial after succesful appeal
4. Breach of plea bargaining

Front 99

Breach of plea bargain by D allows prosecutor to

Back 99

Reinstate original charges

Front 100

Exception to bar against retrial for lesser included offense or greater offense

Back 100

New evidence

Front 101

Effect in criminal proceeding of failure to claim privilege against self incrimination in civil matter

Back 101

Privilege waived

Front 102

Scope of protection against self incrimination limited to

Back 102

Testimonial evidence; physical evidence not protected

Front 103

Elimination of the privilege against self-incrimination (3 means)

Back 103

1. Grant of immunity
2. No possibility of incrimination (statute of limitations has run)
3. Scope of immunity

Front 104

Confessions of a co-defendant may be admitted if:

Back 104

(i) all portions referring to the other defendant can be eliminated (so that there is no indication of that D's involvement), or

(ii) the confessing D takes the stand and subjects himself to cross-examination regarding the truth or falsity of the statement, or

(iii) the confession of the nontestifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively, and the jury is instructed as to that purpose