Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
66 Cards in this Set
- Front
- Back
|
4th Amendment
|
Unreasonable Searches and Seizures, consider stop and frisk/investigatory detentions.
|
|
|
5th Amendment
|
- Self-incrimination
- Double Jeopardy |
|
|
6th Amendment
|
- Speedy trial
- Trial by jury - Right to confront witnesses - Right to assistance of counsel at critical stages |
|
|
8th Amendment
|
-Death Penalty
-Prisoner Rights |
|
|
Exceptions to Exclusionary Rule
|
- Grand Jury Proceedings
- Civil Proceedings - Parole Revocation - Impeachment Purposes - Knock & Announce |
|
|
Breaking the Fruit of the Poisonous Tree
|
Independent Source
Inevitable Discovery Intervening Acts of Free will |
|
|
Exclusionary Rule & Convictions
|
A conviction will not necessarily be overturned because improperty obtained evidence was admitted at trial. On appeal, the court uses harmless error. Conviction will be upheld if the conviction would have resulted despite the improper evidence.
|
|
|
Terry Stops / Stop & Frisk
|
Reasonable suspicion supported by articulable facts. Depends on the totality of circumstances.
Frisk if there is a reasonable belief that the suspect is armed and dangerous. Then, if the officer believes by plain feel that something is a weapon or contraband, it will be admissible. |
|
|
Automobile Stops
|
Police may stop a car if they have at least renbl suspicon that the law has been violated. Ex: Checkpoints
|
|
|
Traffic Stops and Police Dogs
|
A sniff is not a search so long as police do not extend teh stop beyond the time needed to issue a ticket or conduct normal inquiries.
|
|
|
Search and Seizure attack outline
|
1) Governmental Conduct?
2) Rsbl expectation of privacy?/Standing 3) Did the police have a valid search warrant? 4) If the warrant is not valid, does an officer's good faith save the defective warrant? 5) If the warrant is invalid and cannot be saved, then look for exceptions to the warrant requirement. |
|
|
Governmental conduct
|
-Publicly paid police - on or off duty
- Private individual acting at the discretion of the public police - Privately paid police that have been deputized. |
|
|
Categories of Standing/Expectation of Privacy
|
- Own the premises
- Live on the premises - Overnight guests Sometimes when you own the property seized, if you have a rsnbl expection of privacy in the item. |
|
|
No Standing categories
|
Things held out to the public:
Voice Handwriting Paint on your car Account Records in a Bank Location of your car on a public street Open fields Fly overs Odor from car/luggage Garbage on the curb for collection |
|
|
Requirements for a search warrant
|
Particularity
Probable Cause Neutral & Detached Magistrate |
|
|
Probable Cause
|
a fair probability that contraband or evidence of a crime will be found in the area to be searched.
|
|
|
Use of informants
|
Totality of circusmtances considering informant's credibility & basis of knowledge.
|
|
|
No Knock Warrants
|
when dangerous, futile or inhibts the investigation
Biggest fear - destruction of evidence. |
|
|
Exception to Good faith reliance on a warrant
|
1) so lacking in PC no rsnb police officer would have relied on it
2) affadavit is so lacking in particularity no rsnbl officer would rely on it 3) Officer or prosecutor lied to or misled magistrate 4) Magistrate is baised - abandoned neutrality |
|
|
Exceptions to the Warrant Requirement
|
-Search incident to arrest
-Community Caretaker Function -Automobile exception -Plain View -Protective Sweep -Consent -Stop and Frisk -Evanescent Evidence -Hot Pursuit -Inventory -Public Schools |
|
|
SILA
|
- Contemporaneous time/place
- Area within a person's control |
|
|
SILA & Autos
|
- Only if the arrestee is unsecured and still has access to the vehicle OR
- Police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle. |
|
|
Community Caretaker Exception
|
Justifies a warrantless search if an officer faces an emergency that threatens the health and safety of an individual or the public (some JX)
|
|
|
Automobile Exception
|
Police can search anything and anybody in a vehicle if they have probable cause to do so. Containers too if there is PC.
|
|
|
Plain View
|
- Legit on premisis
- Plain view - Evidence of crime or contraband - Immediately apparent it is evidence or contraband |
|
|
Consent
|
- Voluntary and intelligent
- 3rd party consent |
|
|
Frisking Autos
|
If a vehicle is stopped for a traffic violation and the officer reasonably believes the driver or passenger is armed and dangerous they can frisk the person and the car where weapons may be found.
|
|
|
Hot Pursuit
|
If not 15 minutes behind the fleeting felon, not valid hot pursit. Use this with plain view.
|
|
|
Public Schools
|
-Drug testing for extracurricular activities
-Warantless searches that offer a moderate chance of finding evidence of wrongdoing, measures taken relate to the objective and it isn't excessively intrusive. |
|
|
Wiretapping & Eavesdropping
|
Requires a warrant
Everybody risks the unreliable ear and the uninvited ear |
|
|
Miranda
|
Custody + Interrogation
Waiver must be knowing, itelligent and voluntary Invoking must be unambiguous Reinitiation allowed after invocation if they wait, remireandize and ask about another crime. |
|
|
Miranda + Right to Counsel
|
Must be unabmiguous
Must cease questioning unless accused initiates. |
|
|
5th vs. 6th right to counsel
|
5th is in custody. Can't reinitiate, even on an separate case.
6th (noncustodial) requires affirmative invocation, appointment of counsel isn't enough. 6th amendment is offense specific. |
|
|
Pretrial Identification
|
Attack for denial of right to counsel or denial of due process.
Post-charge lineups require right to counsel. Due process says some methods are unncessarily suggestive. Remedy: exclude in court ID, unless there was ample opportunity to observe |
|
|
No right to counsel when
|
- showing vic pictures
- blood samples - handwriting - pre-charge lineups - preliminary hearings for PC to detain - recess during D's testimony at trial - parole and probation revocation |
|
|
Pretrial Procedures
|
Bail - immediately appealable
Grand Juries - exclusionary rule doesn't apply |
|
|
Prosecutorial Duty to disclose exculpatory inf
|
- violates DPC and may be grounds for reversal of a conviction. If, evidence is favorable to D and prejudice has resulted - reasonable probability the result would have been different.
|
|
|
Trial Rights
|
Right to an unbiased judge
Right to jury trial Right to counsel Right to confront witnesses |
|
|
Ineffective assistance of counsel
|
- Deficient performance and but for such deficiency the proceeding would have been diffferent
- must assert particulars |
|
|
Self representation
|
Waiver must be knowing and intelligent and D must be competent to proceed pro se. D can be competent to stand trial and incompetent to represent himself at judge's discretion.
|
|
|
Confrontation Exception
|
Disrputive Defendant
Important public purpose when the reilability of witness testimony is otherwise assured (child sex abuse.) |
|
|
Advisements for a guilty plea
|
1) nature of charge
2) maximum penality and mandatory minimums 3) right to plead NG and demand trial ALL must be on the records |
|
|
Theories for withdrawing a guilty plea
|
- Involuntary/Lack of advisements
- Lack of JX - Ineffective assistance - Failure of prosecutor to keep bargain A threat for a more serious charge is NOT grounds |
|
|
Double jeopardy
|
In JT, when jury is sworn
In CT, when first witness is sworn No DJ when Hung jury manifest necessity to abort orignal trial If D moves for error, no jeopardy. Or on technical issues. Decision must be on the merits. Two crimes are not the same offiense if each crime requires proof of an additional element that the other does not. Otherwise they are barred. Exception: Battery, trial, then vic dies, Separate Sovereignties Exception. |
|
|
Pleading the 5th
|
By anyone in any type of case. Must assert the priviledge the first time or you have waived it. Civil statements can be used in a criminal case.
|
|
|
Things not protected by self incrimination
|
Physical evidence including blood, handwriting, voice, hair
|
|
|
5th amendment and prosecutorial misconduct
|
Can't make comments on failure to testify or remaining silent.
Prosecutor can comment if D's counsel comments that D was NOT ALLOWED to explain his side. Use Harmless error & specify which statements are improper |
|
|
Elimination of right to remain silent
|
1) Grant of immunity
2) No possiblity of incrimination (SoL has run) 3) WAiver |
|
|
Harmless Error Test
|
Error had a substantial and injurious effect or influence in determining the jury's verdict.
|
|
|
Going behind the face of the affadavit
|
1) included false statement
2) intentionally or reclessly 3) was material to the finding of PC. |
|
|
Adminstrative Inspections
|
Inspectors must have warrants for residences and commercial buildings - more lenient - showing of a general and neutral enforcement plan.
Warrantless allowed when -seizing bad food -highly regulated industry -inventory searches of arestees -airline passengers -parolees and theor homes -government worker's desks -drugs tests of railroad employees, students in extracurriculars, and customs |
|
|
Evidence in violation of due process
|
Something that shocks the conscience. Look at intrusion - removal of bullet, blook ok.
|
|
|
Confessions & 14th amendment
|
Due Process requires confession be voluntary. Involuntary if there is official compulsion.
|
|
|
Speedy Trail
|
Right does not attach unless the D has been arrested or charged. Totality of the circumstances. Look at:
Length of delay Reason for delay Whether D asserted his right Prejudice to the D Remedy is dismissal with prejudice. |
|
|
Other due process violatons
|
- trial method where it is unlikely the jury gave evidence reasonable considertion
- prison clothing - visible shackles - jury exposed to influence |
|
|
Sentencing Enhancements
|
Must be submitted to jury and proved BRD
|
|
|
Aranda/Bruton
|
Co-Ds
Statement can be admitted if 1) all portions refering to other D are ommitted 2) confessing D takes the stand and subjects himself to CX. 3) confession of the nontestifying co-d is used to rebut D's claim that his confession was obtained coercively. |
|
|
Confrontation Clause - forfeiture by wrongdoing
|
if D keeps witness from testifying.
|
|
|
Categories where no Death Penalty
|
- Rape
- Felony Murder - Insane at execution - Mental Retardation - Minors when crime was committed - Lethal injection (maybe) if administered improperly |
|
|
Habeas Corpus
|
Collateral attack. Petitioner has to show by a preponderance of evidence an unlawful detention.
|
|
|
Right to counsel at Parole and Provation revocation
|
If it involves a new sentense,entitled to counsel. If it is already imposed, right to counsel is avaialbe only if representation is ncessary to a fair hearing.
|
|
|
Prisoner's rights
|
- Due process - signifcant hardship
- Access to courts - adequate medical care |
|
|
Forfeiture Actions
|
Quasi-criminal in nature. Penal forfeitures are subject to 8th amendment. Fines cannot be excessive unless grossly disproporaitonate to the gravity of the offense.
|
|
|
For Cause Challenge
|
To remove DP - not necessarily - must illicit that their opposition is so strong it renders them unable to be fair/impartial.
|
|
|
Victim Impact
|
Can be considered in death penalty.
|
|
|
Bail
|
commensurate w/ crime
enough to make sure d returns |
