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86 Cards in this Set

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MBE Criminal Procedure and Evidence #1

An indigent D charged with a felony __ has a right to an appointed attorney.
ALWAYS
MBE Criminal Procedure and Evidence #2

An indigent D has no right to an appointed attorney if ...
... D is charged with a misdemeanor and no jail time will be imposed upon conviction.
MBE Criminal Procedure and Evidence #3

If a judge determines D indigent, appoints D an attorney, and D refuses, then the judge ...
... must make sufficient inquiries of D on the record to ensure D is competent merely the understand the risks and disadvantages of representing himself.
MBE Criminal Procedure and Evidence #4

Generally, when determining whether a D is indigent and may have an attorney appointed, the judge __ consider whether D has posted or is capable of posting bail, BUT ...
CANNOT, but ... the judge may consider this information insofar as it reflects the defendant’s financial circumstances measured by income, property owned, dependants, etc.
MBE Criminal Procedure and Evidence #5

D’s 6th amendment rights to effective representation is violated if ...
(1) the lawyer’s actions were beyond the bounds of professional competence and not simply tactical decisions;

and

(2) there is reasonable probability that had counsel been effective, the outcome of the proceeding would have been different.
MBE Criminal Procedure and Evidence #6

Representation is not effective if counsel ...
(1) fails to conduct adequate investigation;

OR

(2) fails to convey to client an offer of plea bargain.
MBE Criminal Procedure and Evidence #7

Per Ake v. Oklahoma,...
(1) an indigent defendant is entitled to have the state pay for an expert witness to assist in the case if the witnesses’ expertise is a likely significant issue in the trial;

and

(2) D can move for assistance in obtaining such a witness ex parte so as not to reveal defense strategy to the state.
MBE Criminal Procedure and Evidence #8

According to Batson v. Kentucky, ...
... neither side in a criminal case may exercise peremptory challenges on the basis of race or gender.
MBE Criminal Procedure and Evidence #9

A Batson v. Kentucy motion should be made ...
... after each side submitted its list of challenged jurors and before the trial court empanels the jury.
MBE Criminal Procedure and Evidence #10

Per Brady v. Maryland, ...
... prosecution has a duty to disclose EXCULPTATORY EVIDENCE and

(1) exculpatory evidence includes any evidence that impeaches any prosecution witnesses;

(2) evidence must be disclosed if in the possession of (a) the trial prosecutor; (b) any other prosecutor; and (c) the police;

and

(3) a conviction is invalid for failing to disclose only if the undisclosed evidence is EXCULPATORY AND MATERIAL.
MBE Criminal Procedure and Evidence #11

Once D is placed in jeopardy for an offense, D can never again be tried for ...
... that same offense.
MBE Criminal Procedure and Evidence #12

A second prosecution of D on an offense is not barred for double jeopardy if the first ...
... ended before jeopardy attached.
MBE Criminal Procedure and Evidence #13

Per U.S. Constitution, jeopardy attaches to D's prosecution ...
(1) for a jury trial, when the jury is sworn;

and

(2) for a bench trial, when the first witness is sworn.
MBE Criminal Procedure and Evidence #14

Per the rule against double jeopardy, __ are always final.
ACQUITTALS
MBE Criminal Procedure and Evidence #15

An acquittal occurs ...
(1) if a jury acquits;

(2) if a trial or appellate court finds that evidence is insufficient for conviction;

or

(3) impliedly for the charged crime if D is convicted of a lesser included crime instead.
MBE Criminal Procedure and Evidence #16

A second prosecution of a criminal D is permitted when ...
(1) the first proceeding ended in a mistrial declared for "manifest necessity" (e.g., hung jury);

(2) D waives double jeopardy protection by successfully moving for mistrial;

(3) D waives double jeopardy protection by successfully obtaining reversal on appeal for mere procedural error;

(4) the first trial ended in conviction reversed on appeal because verdict was "against weight of evidence";

(5) second prosecution is by a different sovereign jurisdiction.
MBE Criminal Procedure and Evidence #17

Per the Blockburger test, neither of two offenses is a lesser included offense of another if ...
... each offense contains at least one element not contained in the other; otherwise, one is a lesser included offense of the other.
MBE Criminal Procedure and Evidence #18

Successive prosecutions for different offenses are barred only if one offense is a lesser included offense of the other because
... lesser included offenses are considered "same" offenses for double jeopardy.
MBE Criminal Procedure and Evidence #19

Per the Collateral Estoppel Rule, acquittal of one offense bars second prosecution for different but related offenses if D shows ...
... BOTH

(1) the precise factual basis for acquital in first proceeding;

and

(2) that factual basis also controls in the in the second prosecution.
MBE Criminal Procedure and Evidence #20

Convictions for several related offenses in one proceeding are barred only if ...
... the legislature did not intend to authorize convictions for all.
MBE Criminal Procedure and Evidence #21

If one offense is a lesser included offense of another, then it is rebuttably presumed that the legislature ...
... did not intend conviction for both.
MBE Criminal Procedure and Evidence #22

For considering double jeopardy, separate sovereigns are between __ but not ...
SEVERAL STATES OR STATE AND FEDERAL GOVERNMENT but not between state and its intrastate sovereigns.
MBE Criminal Procedure and Evidence #23

To raise a claim of bar by double jeopardy, counsel must ...
EITHER

(1) file a pretrial application for writ of habeas corpus alleging double jeopardy;

or

(2) file a special plea of former jeopardy during trial.
MBE Criminal Procedure and Evidence #24

The procedure resulting from D filing an application for a writ of habeas corpus alleging double jeopardy is ...
(1) a judge (and not the jury) decides the issue

(2) before trial

(3) and gives D possibility of immediate appeal.
MBE Criminal Procedure and Evidence #25

The procedure resulting from D filing a special plea of former jeopardy is ...
(1) a jury decides contested issues of fact

(2) during trial

(3) and gives D possibility of appeal only after conviction.
MBE Criminal Procedure and Evidence #26

Per the privilege against self-incrimination, authorities cannot compel as person to engage in ...
... self-incriminating testimonial behavior.
MBE Criminal Procedure and Evidence #27

If a person is granted effective immunity, then the privilege against self-incrimination ...
... no longer applies and the person may be compelled to answer.
MBE Criminal Procedure and Evidence #28

The two types of immunity are ...
(1) transactional immunity

and

(2) use immunity.
MBE Criminal Procedure and Evidence #29

Use immunity gives its holder ... but does not ...
... protection from evidence she produces from being used against her in prosecution, but does not protect her from prosecution.
MBE Criminal Procedure and Evidence #30

Transactional immunity gives its holder ...
... protection from being prosecuted for any offense arising out of the transaction about which she testifies under the grant of immunity.
MBE Criminal Procedure and Evidence #31

Testimonial behaviour is ...
... an intentional behavior of one's own thoughts (i.e., taking DWI test or standing in lineup are not testimonial behaviors).
MBE Criminal Procedure and Evidence #32

Evidence obtained by unreasonable __ cannot be used to prove a criminal defendant's guilt.
SEARCH OR SEIZURE
MBE Criminal Procedure and Evidence #33

A search is ...
... any official action intruding upon a person's reasonable expectation of privacy.
MBE Criminal Procedure and Evidence #34

Common police conduct that not constituting search includes ...
(1) aerial surveilance of a fenced yard;

(2) examination of trash left in yard;

(3) determining numbers dialed from residential home;

(4) using a beeper to follow a car on public streets;

(5) having dog sniff luggage in an airport.
MBE Criminal Procedure and Evidence #35

Common police conduct that consitutes search includes ...
(1) rigorous squeezing of luggage in bus overhead rack;

and

(2) thermal imaging scan of residence.
MBE Criminal Procedure and Evidence #36

An official action is engaging in "plain view" observation and not a search if ...
(1) the officer reaches a location without violating the Fourth Amendment;

and

(2) simply look at something in open view (or with a flashlight).
MBE Criminal Procedure and Evidence #37

Per the Open Fields Doctrine, officers are not searching if they enter ...
... unoccupied or undeveloped area of any land not part of the curtilage of a dwelling.
MBE Criminal Procedure and Evidence #38

For a search to be reasonable, it must ...
(1) be a reasonable warrantless search

OR

(2) must be pursuant to a valid search warrant and based on probable cause.
MBE Criminal Procedure and Evidence #39

Probable cause is ...
... the facts from which a reasonable person would conclude that there is a fair probability that seizable items will be found in the premises to be searched.
MBE Criminal Procedure and Evidence #40

The items subject to seizure are ...
(1) contraband (items illegal to possess);

(2) fruits of crime;

(3) instruments of crime;

(4) mere evidence that a crime was committed or that a particular person committed it.
MBE Criminal Procedure and Evidence #41

A search warrant is ...
... a judicial order authorizing a search and seizure.
MBE Criminal Procedure and Evidence #42

Per the Fourth Amendment, a search warrant must ...
(1) be issued on information constituting probable cause in an affidavit that sets out facts from which magistrate may make an independent judgment as to whether probable cause exists;

and

(2) specifically describe both the place to be searched and the items sought.
MBE Criminal Procedure and Evidence #43

A "no knock" entry is permitted only if ...
... officers have a "reasonable suspicion" that occupants would:

(1) resist the officers by using force;

and

(2) destroy or remove items for which the warrant was issued.
MBE Criminal Procedure and Evidence #44

When conducting a search pursuant to a valid warrant, officers must ...
... confine their search to

(1) the places specified in the warrant

and

(2) places within a specified place where specified items might reasonably be expected to be located.
MBE Criminal Procedure and Evidence #45

When officers are excuting a warrant, they may seize ...
(1) items reasonably believed to be the items described in the warrant;

and

(2) other items found in plain view during the search they have probable cause to believe are seizeable.
MBE Criminal Procedure and Evidence #46

A warrant affidavit relying on informant's tip is helped by specific facts indicating ...
(1) the reliability of the informant;

and

(2) the reliability of the informant's information.
MBE Criminal Procedure and Evidence #47

If officers come upon an item in plain view while searching improperly, then ...
... the plain view rule does not allow the officers to seize the item.
MBE Criminal Procedure and Evidence #48

The four types of valid warrantless searches under the fourth amendment are ...
(1) consent searches;

(2) searches of automobiles;

(3) exigent circumstances searches;

and

(4) searches incident to lawful arrest.
MBE Criminal Procedure and Evidence #49

To perform a vaild warrantless consent search, the officer must ...
(1) obtain voluntary consent from

(2) someone either (a) having a general right of access to the premises or actual authority to give consent or (b) someone reasonably believed by officers to have such authority (apparent authority).
MBE Criminal Procedure and Evidence #50

To obtain valid consent for a warrentless search from joint occupants, officers must ... but ...
... obtain voluntary consent from only one occupant BUT cannot search if person toward whom search is directed is present and actually objecting.
MBE Criminal Procedure and Evidence #51

After obtaining a valid consent for a warrantless search, officers may search ...
... only what a reasonable person in the situation would understand the consenting person to have consented to.
MBE Criminal Procedure and Evidence #52

The four types of valid warrantless automobile searches are ...
(1) search of car parked in public places;

(2) search of car stopped in a traffic stop;

(3) search of car incident to lawful arrest;

and

(4) inventory inspection of properly seized/impounded vehicle.
MBE Criminal Procedure and Evidence #53

When searching a car parked in a public place, officers must ...
(1) have probable cause;

and

(2) confine their search only to places where items might be found.
MBE Criminal Procedure and Evidence #54

When searching a car stopped in a traffice stop, officers must ...
(1) have probable cause;

and

(2) confine their search only to places where items might be found.
MBE Criminal Procedure and Evidence #55

When searching a car incident to a lawful arrest, officers must ...
... confine their search to the passenger compartment including the glove compartment, but not search the trunk.
MBE Criminal Procedure and Evidence #56

When searching cars, contents of containers may be examined only if ...
... the car can be searched.
MBE Criminal Procedure and Evidence #57

To perform a valid warrantless search under exigent circumstances, officers must ...
(1) have reason to believe delaying the search to get a warrant would result in removal or destruction of the items;

and

(2) have probable cause to believe seizable items will be found.
MBE Criminal Procedure and Evidence #58

An invalid arrest has no effect upon a trial court's ...
... jurisdiction---i.e., invalid arrest is not a basis for dismissal.
MBE Criminal Procedure and Evidence #59

Upon a valid custodial arrest, an officer has a right to search ...
(1) the person of the arrestee (including pockets and clothes found on the person of the arrestee);

and

(2) the area of possible reach.
MBE Criminal Procedure and Evidence #60

If a valid custodia arrest is made wihin a premises, an officer can search ...
(1) immediately adjoining places where persons might be concealed;

and

(2) perform a protective sweep of entire premises only if they have a reasonable suspicion that dangerous persons are present.
MBE Criminal Procedure and Evidence #61

Arrests must be reasonable, meaning that ...
... it requires probable cause to believe the arrestee committed the offense.
MBE Criminal Procedure and Evidence #62

An __ is sufficient to search a suspect's residence but a __ is necessary to search other premises.
ARREST WARRANT ... SEARCH WARRANT
MBE Criminal Procedure and Evidence #63

Per Terry v. Ohio, a person may be detained when arrrest would not be valid only if ...
(1) person is detained for investigation on a reasonable suspicion as an objective basis that the suspect has committed, is committing, or is about to commit a crime.
MBE Criminal Procedure and Evidence #64

An anonymous tip is insufficient for a Terry stop unless ...
... it has been adequately corroborated.
MBE Criminal Procedure and Evidence #65

When performing a Terry stop, the officer cannot ...
(1) detain the person for too long a period;

(2) extensively move the person (not to the station house);

(3) automatically search for anything other than weapons.
MBE Criminal Procedure and Evidence #66

A Terry stop may become a valid arrest if ...
... probable cause develops during a the stop.
MBE Criminal Procedure and Evidence #67

During a Terry stop a weapons search can be made only if ...
(1) the officer has a reasonable fear for safety;

(2) the search is initially limited to patting down the person;

and

(3) is confined to determining whether the suspect has a weapon.
MBE Criminal Procedure and Evidence #68

A suspect is seized only if ...
...either

(1) the officer physically restrains him

or

(2) the officer makes a show of authority and the suspect submits.
MBE Criminal Procedure and Evidence #69

Per the Sixth Amendment, D has a right to have a lawyer present at lineup or showup if ...
... it is conducted after judicial proceedings have begun, but is not triggered by mere arrest and is not triggered by a mere showing of photographs.
MBE Criminal Procedure and Evidence #70

During a lineup, D has a due process right ...
(1) that lineup be not so suggegestive that it will create a high likelihood the witness will erroneously identify D as a perpetrator

(2) that applies regardless of whether judicial proceedings have begun or whether D has not acquired or has waived right to have lawyer present.
MBE Criminal Procedure and Evidence #71

If a witness identifies D at a procedure in violation of D's due process rights or right to have a lawyer present, then prosecution cannot ... but can ...
... prosecution cannot prove that identification but can have the witness make an in court identification based upon a source independent of the violative procedure.
MBE Criminal Procedure and Evidence #72

The common grounds rendering a confession inadmissible are ...
(1) confession was involuntary;

(2) confession was caused by delay in bringing arrested d before the magistrate;

(3) Miranda violation;

(4) Sixth Amendment right to counsel violation;

(5) confession was product of unlawful arrest.
MBE Criminal Procedure and Evidence #73

A confession was involuntary if ...
(1) it was the result of coercion or threats;

or

(2) based on totality of circumstances, officer misconduct overcame D's will.
MBE Criminal Procedure and Evidence #74

Relevant factors when considering whether a confession is voluntary are ...
(1) deception of the suspect by officers;

(2) delay in presenting the suspect before a magistrate;

(3) promise of a specific benefit made by a "person in authority."

N.B.! Mental impairment alone is not sufficient for involuntariness.
MBE Criminal Procedure and Evidence #75

Miranda Fifth Amendment rights apply only if...
... BOTH

(1) the susect is in custody (arrested or equivalent) and percieves himself as not free to leave (but does not apply to detainment in traffic violation stops or nonarrest Terry stops);

(2) and is subject to interrogation.
MBE Criminal Procedure and Evidence #76

Custody for Miranda purposes is ... but is not ...
... when D is arrested or percieves himself as not free to leave, but is not detainment during traffic violation stops or nonarrest Terry stops.
MBE Criminal Procedure and Evidence #77

Interrogation for Miranda purposes is ...
... any action which an officer should reasonably know is likely to result in incriminating response.
MBE Criminal Procedure and Evidence #78

When Miranda applies, it requires ...
(1) the right to have counsel present at questioning;

(2) D be warned that (a) D has a right to remain silent, (b) anything D says will be used against D, (c) the suspect has a right to an attorney present, (d) the suspect has a right to an appointed attorney if unable to provide his own;

(3) interrogation may not commence if attorney absent unless D waives this right;

and

(4) no interrogation may occur if suspect desires to remain silent.
MBE Criminal Procedure and Evidence #79

When Miranda applies to a confession, prosecution may admit it as evidence only if ...
(1) the Miranda warnings were given;

and

(2) D made voluntary and knowing waiver of both rights to have attorney present during question and to remain silent.
MBE Criminal Procedure and Evidence #80

If a suspect invokes the right to attorney present, officers may not ...
... reapproach the suspect unless an attorney is present.
MBE Criminal Procedure and Evidence #81

If a suspect who has invoked the right to counsel spontaneously seeks to discuss the crime with officers, officers may ...
... seek waiver of right to counsel and interrogate the suspect.
MBE Criminal Procedure and Evidence #82

Interrogation after D has waived a right to counsel must cease only if ...
... D unambiguously requests counsel present.
MBE Criminal Procedure and Evidence #83

The D's Sixth Amendment rights apply in interrogations when ... and they require ...
... when D is questioned after judicial proceedings have begun and they require:

(1) D be allowed counsel at questioning by undercover officer;

(2) D be allowed counsel at questioning even if not in custody;

and

(3) police not to interefer with counsel contacting a client undergoing questioning.
MBE Criminal Procedure and Evidence #84

To have standing to challenge evidence under the exlusionary rule, a claim must ...
(1) be based upon a violation of the claimant's underlying rights and not another's;

(2) in search situatons, must have intruded upon the defendant's privacy;

(3) in vehicle searches, a mere passenger has no standing to challenge the search;

and

(4) in residences, be based on more than claimant's mere presence or short commercial stay, but overnight personal visit is enough.
MBE Criminal Procedure and Evidence #85

Per the exclusionary rule, all evidence obtained from an unreasonable search is __ and thus must be __
FRUIT OF THE POISONOUS TREE and must be EXCLUDED.
MBE Criminal Procedure and Evidence #86

The exceptions to the federal exclusionary rule are ...
(1) the taint between the illegality and the discovery is attenuated;

(2) the officer had a good faith belief that his actions were reasonable because he had a warrant or a statute later held invalid;

(3) the evidence would have inevitably been obtained legally;

and

(4) the evidence is used to impeach the defendant (regardless of Miranda violation) unless evidence is of involuntary confession.