Bar Review Criminal Procedure

Front 1

Speedy Trial Right

Back 1

Once charged, 6th Amendment provides for speedy trial for a defendant based on the totality of circumstances.
1) Prejudice to the defendant.
2) Length of delay
3) Asserted the right - has D asserted the right?
4) Reasons for delay

Hint 1

PLAR

Front 2

Fourth Amendment Standing

Back 2

Person must have a subjective and objectively reasonable expectation of privacy with respect to the place to be searched or item to be seized.

Front 3

Unlawful Search

Back 3

Involves government intrusion into space or activities where an individual has a reasonable expectation of privacy. Citizen must have:
1) manifested a subjective expectation of privacy, and
2) must be one that society accepts as objectively reasonable.

Front 4

Voluntary Statement - 14th Amendment Due Process

Back 4

The standard of proof is by preponderance of the evidence.
Must be the product of rational intellect and free will, based on:
1) totality of circumstances.
2) defendant's age, background and education
3) Circumstances of interrogation.

Hint 4

Totality/Preponderance

Front 5

Right to Confrontation

Back 5

The Sixth Amendment provides that the accused has a right to confront witnesses against him in all criminal and accusatory proceedings.

Front 6

Probable Cause for Search

Back 6

Probable cause is a belief based on trustworthy facts and knowledge sufficient for a person of reasonable caution to believe that evidence subject to seizure could be found.

Hint 6

trustworthy facts and knowledge

Front 7

Reasonable Suspicion

Back 7

The Supreme Court has not defined it.
Generally where there is an articulable and reasonable suspicion, support by facts, for suspecting a person of criminal activity.
The standard is judged under a totality of the circumstances.

Front 8

Probable Cause for Arrest

Back 8

A quantity of facts and circumstances what would cause a person of reasonable caution to believe that a suspect has committed a crime.

Front 9

Search Incident to Lawful Arrest

Back 9

Such an arrest must be:
1) Lawful (supported by probable cause)
2) Search must be limited to persons and areas within their immediate reach.

Front 10

Escobedo Rule

Back 10

A confession obtained in violation of the Sixth Amendment right to counsel after formal charges have been filed must be excluded from evidence at trial.
An informant placed in a jail cell violates the Escobedo Rule only if the informant purposefully elicits incriminating statements (Massiah Doctrine).

Hint 10

Sixth Amendment

Front 11

Arrest

Back 11

Where a person is deprived of their freedom of movement for the purposes of criminal prosecution or interrogation.
An arrest warrant is not usually required, except when necessary to enter a private home to make an arrest.

Hint 11

movement

Front 12

Proper Search Warrant Execution

Back 12

Execution of a search warrant must be limited to the scope of the warrant, and usually requires an officer to knock and announce their presence (except where destruction of evidence is likely or doing so would risk injury).

Hint 12

scope

Front 13

Miranda Rights

Back 13

The Fifth Amendment right to be free from self-incrimination mandates that prior to interrogation in custody, a suspect must be advised of:
1) Right to remain silent
2) Information given by suspect may be used against him in court
3) Right to have an attorney present during questioning
4) If suspect cannot afford an attorney, one will be appointed by the court.

Hint 13

prior to interrogation

Front 14

Eighth Amendment Right

Back 14

Excessive bail shall not be required. The court will consider:
1) the charges and circimstances of arrest
2) weight of the evidence against the suspect
3) financial means of the suspect
4) the risk of flight by the suspect

Hint 14

circumstances

Front 15

Sixth Amendment Right

Back 15

The Sixth Amendment guarantees the right to:
1) Assistance of counsel
2) in Criminal proceedings
3) which include Critical stages of prosecution
4) After judicial proceedings have begun (formal charges).
It also provides for the right to confront accusatory witnesses. Also is offense specific.

Hint 15

A-C-C-A

Front 16

Warrant Requirement Exceptions

Back 16

I C APES:
I - Incident to lawful arrest
C - Consent (knowing, voluntary, and intelligent)
A - Automobile
P - Plain view doctrine
E - Exigent circumstances
S - Stop and frisk (reasonable suspicion).

Hint 16

I C APES

Front 17

Miranda Waiver Requirement

Back 17

The prosecution must meet a burden of showing by a preponderance of evidence that the waiver was knowing, voluntary, and intelligent.
Silence is not a waiver.

Hint 17

voluntary

Front 18

Due Process Standard for Identfications

Back 18

An identification may be invalidated on the basis that it denies due process based on:
1) Unnecessarily suggestive means
2) The result being a substantial likelihood of misidentification.

Front 19

Double Jeopardy

Back 19

A person may not be tried for the same offense twice, once jeopardy has attached.
Jeopardy attaches for a jury trial when the jury is sworn in, and when the first witness is sworn in a bench trial.

Hint 19

sworn in

Front 20

Fourth Amendment

Back 20

Provides that the people shall be free from unreasonable searches and seizures by the federal government, and is applicable to the states by way of the Fourteenth Amendment.

Hint 20

Unreasonable

Front 21

Exclusionary Rule

Back 21

Where a court finds that evidence has been obtained Illegally, the evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded.

Hint 21

Inadmissible

Front 22

Plain View Doctrine

Back 22

If property is in plain view from a place where a law enforcement officer has a lawful right to be, then there is no search.
The officer must have probable cause to believe the item is evidence, and may not use the doctrine for purposes of examining items in plain view by moving them.

Hint 22

lawful right to be

Front 23

Harmless Error Test

Back 23

If illegal evidence is admitted at trial, a resulting conviction should be overturned on appeal unless the prosecution can show beyond a reasonable doubt that the error was harmless. The prosecution must show that the conviction would have resulted from overwhelming evidence from the prosecutor's case.

Hint 23

overwhelming evidence

Front 24

Valid Warrant

Back 24

A warrant to search is effective only with probable cause, issued by a neutral and detached magistrate, which is precise on its face as to the places to be searched and the things or persons to be seized, and is properly executed.

Hint 24

probable cause

Front 25

Right to Jury Trial

Back 25

The Sixth Amendment provides for the right to have an impartial jury where the possibility of sentence is 6 months or greater. The right applies to both federal and state trials.
A jury of 12 is not Constitutionally required, but if a jury of six unanimity is required.

Hint 25

6 months

Front 26

Detention Requirements (Terry Stop)

Back 26

Police may detain and question a person based on articulable and reasonable suspicion.
The test includes:
1) Detention
2) Objectively reasonable belief that criminal activity is afoot
3) Temporary detention no longer than necessary
4) Where a frisk is involved, there must be reasonable suspicion of possession of a weapon.

Front 27

Right to Counsel - Conflict of Interest

Back 27

The accused is denied the right to counsel if the attorney is appointed to represent a co-defendant or client with conflicting interests.

Front 28

Exclusionary Rule Exceptions
(IIAI)

Back 28

Evidence obtained from:
1) Independent source
2) Intervening act of free will by the defendant
3) Attenuation form the initial illegality
4) Inevitable discovery.

IIAI - It Isn't All Inadmissible

Front 29

Competency to Stand Trial

Back 29

Dusky v. U.S. - the Dusky Standard
Defendant must be able to:
1) consult with their attorney
2) rationally understand the proceedings
Can only forcibly medicate to render competent if:
1) Furthers an important government interest, AND
2) Medically appropriate

Front 30

Voluntariness of Statements

Back 30

In order for a self-incriminating statement to be admissible under the due process clause of the Fourteenth Amendment, it must be voluntary as determined by a totality of the circumstances. It will not be voluntary where the defendant's free will was overborne by government coercion.
Based on:
1) totality of circumstances
2) defendant's age, background and education
3) Circumstances surrounding interrogation.
The burden is by a preponderance of the evidence.

Front 31

Fourth Amendment Right Against Unreasonable Search

Back 31

One must have a subjective and objectively reasonable expectation of privacy with respect to the place to be searched or the item to be seized.

Front 32

Right to Speedy Trial

Back 32

The Sixth Amendment provides for a speedy trial for the defendant.
The evaluation is based on a totality of circumstances, including:
1) Prejudice to the D?
2) Length of the delay
3) Asserted the right - has D asserted the right to speedy trial?
4) Reason for the delay.

Hint 32

PLAR

Front 33

Proper Execution of a Warrant

Back 33

1) Without unreasonable delay
2) Knock and announce
3) Limited to the scope of the warrant.

Front 34

Search Warrant Affidavit

Back 34

Police must submit an affidavit to a magistrate setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officer's conclusions.

Front 35

Invalid Search Warrant Based on Affidavit

Back 35

An invalid affidavit must contain:
1) A false statement by the affiant (officer applying for the warrant)
2) Affiant intentionally or recklessly included the false statement, AND
3) The false statement was material to the finding of PC.

Hint 35

1) False
2) Intentional or reckless
3) Material

Front 36

Right to Discovery

Back 36

Due process requires a prosecutor to disclose evidence favorable to the defendant after a specific request OR if it would create a reasonable doubt as to D's guilt whether or not D requested it.

Prosecutor may request pretrial notice of an alibi, statements of defendant, and a witness list if D has the same reciprocal rights.

Front 37

Right to a Public Trial

Back 37

The 6th Amendment provides for a public trial, but public/press may be excluded if no other reasonable alternatives exist to protect D's right to a fair trial.

Front 38

Right to be free of Cruel and Unusual Punishment

Back 38

Does the punishment fit the crime? Death penalty is allowable if it is imposed under a statute that gives the fact finder the discretion to impose it, and requires consideration of mitigating circumstances and D's background.

Front 39

Right to be Advised of Constitutional Rights on Guilty Plea.

Back 39

Record must show that D is aware of charge and all elements, is aware of the penalty, nature and consequences of plea. A voluntary w/d of plea is permissible only before sentence is imposed or imposition of sentence is suspended.