2011 Mbe Crim Procedure

Front 1

Proceedings to which the Exclusionary Rule does not apply (3)

Back 1

1. Civil Proceedings
2. Grand Jury (unless evidence obtained in violation of Fed. Wiretapping statute)
3. Parole Hearings

Front 2

Circumstances Under which the Exclusionary Rule does not apply (7)

Back 2

1. When state procedural limits on an arrest or search are violated (as long as 4A not violated)
2. Violations of "knock & announce rule"
3. Independent source
4. Break in "causal chain" between illegality and the evidence, especially by an intervening act of free will by DF.
5. Inevitable discovery
6. Impeach the DF
7. When police act in good faith baed on: a) a decision or law that is later invalidated; b) a defective search warrant lacking PC (Leon); c) arrest based on negligent clerical error (Herring)

Front 3

Good faith exception to exclusionary rule does not apply when (4):

Back 3

1.) the affidavit for the SW is SOOO lacking in PC that no reasonable officer would have relied on it
2.) SW lacking on its face (ex. lacks particularity)
3.) When affiant purposely lied to or mislead the magistrate
4.) When magistrate wholly abandoned judicial role (rubber stamp)

Front 4

How is the Exclusionary Rule enforced?

Back 4

1. Applicability of rule is decided by judge, outside hearing of jury
2. D has right to testify at a suppression hearing without his testimony being used against him
3. Gov't has burden of establishing admissibility of evidence by preponderance of the evidence

Front 5

When is there gov't action?

Back 5

1. Publicly paid police officer, on OR off duty
2. Private citizen acting under direction of govt agent
3. Privately paid police officer, but only if deputized by govt

Front 6

A seizure occurs when a a reasonable person...

Back 6

would not feel free to leave

Front 7

Two bases for a seizure:

Back 7

1. Physical application of force
2. Submission to officer's show of authoirty

Front 8

Police are free to conduct __________ encounters without any belief of criminal activity whatsoever

Back 8

consensual

Front 9

Arrest occurs when police...

Back 9

take a person into custody against their will to prosecute or interrogate

Front 10

For an arrest, police need:

Back 10

Probable cause--trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committed a crime

Front 11

The police must have an arrest warrant to arrest DF in his home unless (3):

Back 11

There is an exigency: a) hot pursuit of a felon, b) evanescent evidence, c) consent

Front 12

To arrest DF in the home of a 3rd party, police must either...

Back 12

1. obtain a search warrant for DF, specifying his location at 3rd party's house
2. get consent from 3rd party
3. act pursuant to an exigency

Front 13

Terry Stop Rule: Police may detain a person for investigative purposes if they have a __________ of criminal activity or involvement in a complete crime supported by ____________.

Back 13

reasonable suspicion; articulable facts

Front 14

Scope of Terry Stop

Back 14

1. no longer than necessary to conduct a limited investigation to verify or dispel the suspicion
2. police may ask persons to identify themselves by name
3. police may arrest suspect for failure to comply
4. the stop may turn into an arrest if PC develops, either concerning the basis for the stop or some other basis
5. Police can frisk for weapons if they have a reasonable, articulable suspicion that DF has weapons (NOT just a hunch!!)

Front 15

Automobile Stop: police must have...

Back 15

Reasonable suspicion or probable cause. Both driver & car are seized.

Front 16

Who can officer order out of the car?

Back 16

Driver AND passenger (rationale--safety reasons)

Front 17

Station house detention rule:

Back 17

Police must have PC of an offense to bring a suspect to the station for questioning or fingerprinting

Front 18

Steps to analyze 4A search & seizure questions:

Back 18

1. Gov't conduct?
2. Reasonable expectation of privacy?
3. Did police have search warrant...OR...
4. Did they lack a search warrant?

Front 19

Place where there IS a reasonable expectation of privacy (5)

Back 19

1. DF owns or has right to possess place to be searched/curtilage
2. Place searched is in fact DF's home, whether or not she owned or had right to possess it
3. Place where DF is overnight guest
4. Police squeeze luggage (Olsen)
5. Police scan a home which a device not yet in general use (Kyllo)

Front 20

Places where there is NOT a reasonable expectation of privacy (10)

Back 20

1. It's a home, but DF has biz purpose for being on the premise (Carter)
2. Objects held out to public (like your face)
3. Paint on the outside of a car
4. Account records, like bank records
5. Air space (Riley)
6. Garbage (Greenwood)
7. Voice or face
8. Open fields
9. Odors, even if you try to conceal them
10. Vehicle interior when dog sniffs outside (Caballos)

Front 21

Reasonable expectation of privacy unclear (3):

Back 21

1. Social guest who is legitimately on premises when search occurs (not overnight guest)
2. Owner of item where the item is not on owner's premises
3. Non-car-owner passengers

Front 22

HYPO (Rollings case) DF & gf in DF's car. He sees police and gives drugs to his gf, who stashes them in her purse. The purse is on the floor of the car. Police search the car and the purse. Can DF successfully contest the search?

Back 22

NO-- DF has no reasonable expectation of privacy in the gf's purse

Front 23

Warrant must be approved by neutral and detached magistrate--when is this test NOT satisfied?

Back 23

1. Issuer is part-time state AG
2. Issuer is an individual paid to issue warrants
3. Magistrate participates in search

Front 24

Warrant must be approved by neutral and detached magistrate--when is this test satisfied?

Back 24

When a non-lawyer clerk is the issuer

Front 25

A warrant can be based on an informant's tip even if the informer is anonymous, but police usually need...

Back 25

corroboration

Front 26

(Exception to Warrant Requirement) Automobile Exception applies when ____ .

AND scope of auto exception

Back 26

Applies when police have PC to believe car contains contraband or evidence of crime
--Scope--
1. police can search entire car--even the trunk--where the item might be
2. scope includes any container, even if it belongs to someone not directly implicated
3. if police have PC that the item is in a specific container, they can only search parts of the car where the container might be

Front 27

(Exception to Warrant Requirement) Plain view rules & scope (4)

Back 27

1. police must be lawfully on premises
2. applies to evidence, fruits, instrumentalities of crime, or contraband
3. must in fact be in plain view
4. incriminating nature of item is immediately apparent

Front 28

(Exception to Warrant Requirement) Two types of consent

Back 28

1. Actual authority--party has actual dominion or control over item or premises (can be jointly held
2. Apparent authority--consent is valid if police make reasonable factual mistake as to consenting party's authority

Front 29

(Exception to Warrant Requirement) Describe child's ability to give consent to search house

Back 29

Generally they can, but not if they are really really young, and any aged child probably can't give consent to private areas, like parents' bedroom

Front 30

(Exception to Warrant Requirement) Is consent valid if co-owner consents but other co-owner is present and objects?

Back 30

No, consent is not valid--no search allowed (using consent at least)

Front 31

(Exception to Warrant Requirement) Scope of search when given consent

Back 31

Limited to areas in which a reasonable person would believe it extends

Front 32

(Exception to Warrant Requirement) HYPO--DF consents to search of backpack and police enter zipped compartment of the backpack and find drugs, can the drugs be basis of prosecution?

Back 32

YES

Front 33

(Exception to Warrant Requirement) Terry Frisk Search--rules & scope, including special rules for Terry auto stop

Back 33

1. Police must have reasonable and articulable suspicion that a person is armed and dangerous
2. Limited to exterior of clothing, except that police can reach right into an area of clothing if they have specified reliable info that a weapon is concealed there.
3. Special Rules for Cars: a) police can "frisk" interior of car if they have reasonable believe the weapon is present; b) police can order both driver and any passengers out of the car, even without suspicion that they are armed; c) anyone in the car can be frisked if reasonable, articulable suspicion exists that that person is armed
4. Plain feel doctrine--if police reach inside clothes and reasonably and immediately believers that an item is a weapon or contraband, the item can be removed and used in prosecution

Front 34

(Exception to Warrant Requirement) Plain Feel Doctrine

Back 34

If police reach inside clothes and reasonably and immediately believers that an item is a weapon or contraband, the item can be removed and used in prosecution

Front 35

(Exception to Warrant Requirement) Exigent Circumstances (3)

Back 35

1. Hot pursuit of fleeing felon
2. Evanescent evidence (blood sample, fingernail scraping)
3. Emergency or community caretaking

Front 36

Special Warrantless Privacy Invasions (5)

Back 36

1. Inventory searches
2. Searches of public school kids
3. Students can be subject to random drug tests
4. Certain gov't employees can be subject to drug testing w/o individualized suspicion
5. Border searches and checkpoints -- (not discussed in lecture)

Front 37

Special Warrantless Privacy Invasions--Car Inventory-->Requires that...

Back 37

standardized departmental policy exist and that it be followed

Front 38

Special Warrantless Privacy Invasions--Personal belongings of arrestee

Back 38

police can search arrestee at station

Front 39

Special Warrantless Privacy Invasions--Searches of schoolchildren can occur/are proper when...(3)

Back 39

1. can occur when there is a moderate chance of finding evidence of wrongdoing
2. is proper when search method is reasonably related to search objective
3. is proper when search is not excessively intrusive in light of age and sex of student, and nature of violation

Front 40

Search Incident to Arrest (SIA)--Ok when:

Back 40

1. there's an arrest for any violation based on PC
2. arrest itself must be anchored in substantive law (officer can't stop you for something that's not a crime or violation--if search follows, it will be illegal)
3. Search must follow actual arrest; citation is not enough
4. Search must be contemporanous to arrest in time and place

Front 41

SIA of person--> Scope

Back 41

Limited to person's "grab area" (wingspan)

Front 42

SIA of car --> Scope

Back 42

1. Scope limited to passenger compartment and containers therein (NOT trunk)
2. BUT police can only search passenger compartment and containers if: a) arrestee is unsecured and may still gain access to interior (should not happen) OR b) it is reasonable to believe that evidence relating to basis for arrest is in vehicle (Gant).

Front 43

Wiretapping & Eavesdropping

Back 43

1. Wiretapping--search warrant required and must specify persons to be heard, and length of time
2. Eavesdropping:
a) unreliable ear issue--everyone assumes risk that gov't is monitoring conversation (so if you confide in friend, you assume the risk that friend will tell govt on you)
b) uninvited ear--if speaker makes no effort to keep conversation private, the gov't can use that info

Front 44

(Confessions)--14A "Involuntariness Test"

Back 44

Police violate "due process" when they secure involuntary confessions from DFs.

Front 45

(Confessions)--Involuntariness assessed on what standard?

Back 45

Totality of circumstances

Front 46

(Confessions)--For a confession to be involuntary, there must be...

Back 46

gov't coercion of some sort

Front 47

(Confessions)--6A Right to counsel triggered at________

Back 47

critical stage of prosecution, usually indictment or arraignment

Front 48

(Confessions)--6A Right to counsel triggered only if gov't agent ________

Back 48

deliberately elicits a statement from DF (even if the critical stage has occurred

Front 49

(Confessions)--Caveat: 6A right to counsel is offense specific, meaning that_________

Back 49

2 crimes are different if each requires proof of an element that the other does not

Front 50

(Confessions)--Caveat again--for 6A right to counsel, DF must____

Back 50

expressly request the right to counsel

Front 51

(Confessions)--If 6A violation occurs, the remedy is

Back 51

that the confession is barred from prosecution's case-in-chief, but it can be used to impeach DF on XE

Front 52

(Confessions)--6A Right to counsel--HYPO--Police use jailhouse "plant" to discuss DF's burglary case and obtain confession from DF about the burglary after DF is arraigned. Can the confession be used on the gov'ts case in chief?

Back 52

No b/c a critical stage has passed and the police deliberately elicited the statement (although i'm not sure that they did--maybe if the plant just sat and waited for DF to talk, it would be usable??)

Front 53

(Confessions)--6A Right to counsel--HYPO--IF DF is arraigned on burglary charge and invokes his right to counsel, can police later question him about his suspected involvement in a hit and run?

Back 53

YES

Front 54

(Confessions)--5A & Miranda--The Miranda warnings are:

Back 54

1. Right to remain silent
2. Anything you say can be used against you in court
3. Right to presence of counsel
4. If you can't afford lawyer, one will be appointed

Front 55

(Confessions)--5A & Miranda--The Miranda warnings are only required if you have (2):

Back 55

1. custody
2. interrogation

Front 56

Custody for Miranda is when:

Back 56

Freedom of movement significantly limited, objective test, based on police behavior. Does not encompass voluntary encounters or traffic stops, or grand jury proceedings.

Front 57

Interrogation for Miranda is

Back 57

express questioning or action that police should know are reasonably likely to elicit an incriminating response from DF.

Front 58

Does Miranda apply to spontaneous utterances?

Back 58

Nope, even if person is in custody. If they blurt something out, no Miranda necessary and statement can probably be used.

Front 59

Waiver of Miranda---prosecution must prove by ____________. Waiver must be 1_____, 2_____, & 3_______.

Back 59

preponderance of the evidence

knowing, voluntary, and intelligent

Front 60

Is there a waiver of Miranda when the suspect is silent or shrugs?

Back 60

If warnings are provided, and then individual goes on to answer questions, court will infer waiver.

Front 61

Miranda--Must DF be told about all subjects covered in interrogation?

Back 61

No

Front 62

Miranda--Must police tell DF that a 3rd party has retained a lawyer for DF?

Back 62

No (Moran case). Waiver valid even if DF didn't know family hired a lawyer.

Front 63

Miranda--Once right is invoked, what are DF's rights?

Back 63

1. Terminate interrogation
2. Get lawyer

Front 64

For invocation of Miranda rights to be effective, the invocation must be_____ & _____.

Back 64

Explicit & unambiguous

Front 65

Miranda--If DF invokes his right to remain silent, how must police proceed?

Can police resume questioning and if so, when?

Back 65

Police must honor request and cease interrogation.

Police can reapproach DF after a passage of time (cooling off period), and obtain a statement if they re-Mirandize the suspect AND get a knowing, voluntary, and intelligent waiver.

Front 66

If DF invokes Miranda right to counsel, how must police proceed?

Can police resume questioning and if so, when?

Back 66

Police must honor that and cease questioning.

Police CANNOT thereafter re-approach DF on their own. THey can only re-approach DF if 1) DF has lawyer present; 2) suspect initiates further discussion about his case, and the police re-Mirandize suspect and obtain a knowing, voluntary, and intelligent waiver; or 3) 14 days pass after DF is released from custody and returns to normal life.

Front 67

Is 5A right to counsel offense specific?

Back 67

NO--it bars questioning as to all other suspected crimes. This is different from 6A right to counsel

Front 68

5A right to counsel HYPO--DF was arrested for burglary and asked for and received an appointed attorney. Later, police question him about a murder. Df makes damaging statement about the murder. No warnings given. What result?

Back 68

NOT admissible.

Front 69

Uses for Miranda-defective statements?

Back 69

1. Impeachment of DF on XE (same for 6A)
2. If confession leads police to physical fruits, those can be used
3. DF's statement made in response to police question for purpose of public safety is admissible in case-in-chief. If that question leads to a weapon evidence, that is also admissible.
4. Investigative lead--police can properly use.

Front 70

Pretrial ID--6A Right to Counsel--Rule:

Back 70

Only applies if a critical stage has been reached; if it has, then DF has right to the presence of counsel at any line up or show up. Failure of police to comply deprives DF of right to assistance of counsel.

Front 71

Pretrial ID--6A Right to Counsel--DF does NOT have 6A right to counsel (even post critical-stage) at 1____ or 2_____.

Back 71

1. photo array
2. when police extract physical evidence like handwriting or fingerprints

Front 72

Pretrial ID--14A Right to Due Process--Rule: DF, not faced with a "critical stage," can attack and ID as being so prejudicial as to violate DP if 1_____ & 2______.

Back 72

1. unnecessarily suggestive AND
2. there is a substantive likelihood of misID.

BUT even if ID is unnecessarily suggestive, it will not be excluded if it is reliable (the "lynchpin") of analysis

Front 73

Pretrial ID--Remedy for 6A of 14A violation

Back 73

Police can still use in-court ID if prosecution shows there was an "independent source" for the ID, based on:
1. opportunity to observe DF doing act
2. level of certainty evidence by victim or witness
3. time lapse between act and ID

Front 74

Pretrial Procedures--Bail Rules

Back 74

1. Refusal to grant bail or the setting of excessive bail can be appealed immediately.
2. Preventative detention is constitutional and permissible, if procedural protection such as a hearing is provided.

Front 75

Pretrial Procedures--Grand Jury Rules (4)

Back 75

1. Only federal govt MUST use. States can use it but don't have to. Many states charge by information of AG.
2. Exclusionary rule doesn't apply in grand jury context; a grand jury witness may be compelled to testify about illegally seized evidence.
3. Grand juries are conducted in secret and the accused has no right o be there or have counsel there

Front 76

6A Trial Rights (2)

Back 76

1. Right to Unbiased Judge--DP violated if judge has a financial interest in outcome or actual malice towards DF.
2. Right to jury when possible sentence is over 6 months. No right to jury trial in juvenile proceedings,

Front 77

Rules for composition of jury

Back 77

1. Minimum # is 6 (no constitutional right to 12)
2. 6 Member jury must be unanimous, but court has upheld 10-2 of 9-3 jury verdicts

Front 78

Rules for Jury selection

Back 78

1. DF has right to have a jury selected from a respresentative cross section of the community. This pool is called the venire.
2. To establish violation, DF must show the venire contained an underrepresentation of a distinct and numerically significant group
3. DF does not have right to proportional representative of all groups on his particularly petit jury (the actual jury in the trial, as opposed to venire).

Front 79

Limits on Peremptory Challenges

Back 79

Race & Gender--its unconstitutional for either the prosecution or the defense to exercise its peremptory challenges to exclude jurors solely on account of race or gender

Front 80

Right to Effective assistance of counsel-- to show violation, DF must show (2)

Back 80

1. deficient performance (must allege particular deficient performance, not just general inexperience).
2. AND that deficiency resulted in adverse consequence.

These claims usually denied.

Front 81

If DF takes a guilty plea, he...

Back 81

waives his right to trial

Front 82

Contract theory of plea bargaining means:

Back 82

terms of the bargain must be revealed on record and both DF and govt will be held to it.

Front 83

A plea by DF must be:

The judge must:

Back 83

voluntary & intelligent

Judge must address DF personally and on the record about:
1. the nature and elements of the charge
2. max penalty and mandatory minimums
3. that DF has right to plead not guilty, and that pleading guilty waives his right to trial

Front 84

When plea can be attacked (4) & remedy

Back 84

1. involuntary & unintelligent
2. court lacked jurisdiction
3. ineffective assistance of counsel
4. gov't doesn't keep up its end of the bargain

Remedy--plea withdrawn, new plea or trial to occur

Front 85

Any death penalty statute is unconstitutional if it:

Back 85

does not give DF a chance to present mitigating facts and circumstances, or that limits admissibility of such info

Front 86

There can be no automatic category for_______

Back 86

imposition of death penalty

Front 87

Only a j_____ not a j_____ may determine the aggravating factors that justify imposition of the death penalty

Back 87

Only a JURY (NOT a judge) can decide the aggravating factors

Front 88

Categorical Limits
1. Death penalty cannot be imposed for the sexual assault of a ______
2. ______ at the time of a capital crime cannot receive the death penalty
3. ________ DFs cannot be executed
4. Persons who are _______ at the time of proposed execution cannot be executed.

Back 88

1. child or adult woman NOT resulting in death
2. DF was under 18 at time of capital crime
3. Mentally retarded
4. Insane

Front 89

Double Jeopardy Rules
1. Jeopardy attaches in jury trial when____
2. Attached in bench trial when ___
3. Does not attach in ___

Back 89

1. jury is sworn
2. first witness is sword
3. civil proceedings

Front 90

Exceptions to double jeopardy--when retrial is permitted even after jeopardy has attached (3)

Back 90

1. Hung jury
2. Mistrial for manifest necessity
3. Successful appeals if based on the weight of the evidence, or evidence erroneously admitted. Retrial NOT permitted if reversal was based on insufficiency of the evidence

Weight v. Sufficiency?
Weight--doesn't prove beyond resonable doubt
Sufficiency--if all evidence taken as true would still not prove all the elements of an offense, NO retrial

Front 91

What is the "same offense"

Back 91

Two crimes are NOT the same offense if each requires proof of an element that the other does not.

Front 92

Rules for Greater & Lesser Offenses

Back 92

1. Attachment of jeopardy for a greater offense bars retrial for lesser included offense(s)
2. Attachment of jeopardy for a lesser included offense bars retrial for greater offense
3. Exception: a prosecution for murder is permitted if the victim dies after prior attachment of jeopardy for battery.

Front 93

Separate Sovereigns

Back 93

Double jeopardy doesn't apply to trial by separate sovereigns. Separate sovereigns can prosecute DF for same offense.

States are separate, US Govt and a State are separate

State and municipalities are NOT separate

Front 94

Who may assert 5A privilege against self incrimination?

Privilege does not apply to:

Back 94

Any natural person asked question under oath is entitled to assert the privilege in any criminal trial, civil, trial, or hearing if the answer might tend to incriminate them

Does not apply to corporations

One must assert the privilege, and not answer, or else it will be waived for purposes of all subsequent proceedings

Front 95

Scope of 5A privilege against self incrimination?

Back 95

Protects only testimonial evidence, not physical evidence (handwriting, blood, voice evidence can be taken)

but govt can't compel person to take polygraph

Front 96

If one invokes 5A right to silence, may prosecution comment on that at trial?

Back 96

No, and DF may ask court at trial for instruction telling the jury that they may draw no inference from DF not testifying

Front 97

Immunity

Back 97

A witness may be compelled to answer an incriminating question if granted immunity from prosecution

Front 98

Use & derivative use immunity

Back 98

This guarantees both that the witness's testimony and evidence secured by means of the testimony will not be used against the witness

Front 99

Witnesses granted immunity may still be prosecuted if

Back 99

the govt shows that the evidence to be used against them was derived from a source independent of the immunized testimony, or before the grant of immunity.

Front 100

A person has no privilege under the 5A if the

Back 100

statute of limitations on the crime has run

Front 101

By testifying, DF waives his 5A privilege

Back 101

for all relevant XE.