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84 Cards in this Set

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What is the Exclusionary Rule?
If there is:
1) illegal search or coerced confession
2) the products of such illegalities are excluded as evidence at trial as a remedy
What is the Fruit of the Poisonous Tree Doctrine?
This doctrine says that all evidence obtained by exploiting the original illegality is also excluded.
What are the exceptions to the Fruit of the Poisonous Tree Doctrine?
1) independent source
2) inevitable discovery
3) intervening act of free will on part of the defendant
Is the right to a grand jury hearing binding on the states?
NO - the right to indictment by a grand jury for capital and infamous crimes has been held NOT binding on the states.
Can a witness be compelled to testify at a grand jury based on illegally seized evidence?
YES - becuase the exclusionary rule does not apply to grand juries, UNLESS the evidence was obtained in violation of the federal wiretapping statute.
Is exclusion an available remedy in civil proceedings?
NO, exclusion is not an available remedy in a civil proceeding.
Is exclusion available in parole revocation proceedings?
NO, exclusion is not available in parole revocation proceedings.
What law must a search violate to qualify for exclusion?
Federal Constitution or federal statute
Can evidence from illegal searches or coerced confessions be used at trial?
In general, no, because of the exclusionary rule. However, exclusion will not apply when the evidence is sought to impeach the witness.
Explain the good faith reliance defense as a limitation on the exclusionary rule.
Exclusion is not available when th epolice act in good faith based on
1) case law
2) facially valid statute / ordinance
3) computer record containing clerical errors not made by police
4) defective search warrant (with exceptions)
When is not considered the police's good faith reliance on a search warrant?
1) underlying affidvait so lacking in probable cause that it could not reasonably be relied on
2) warrant defective on face
3) affiant lied to or misled the magistrate
4) magistrate wholly abandoned judicial role
In NY, explain good faith reliance on a defective search warrant.
NY does not recognize good faith reliance on defective search warant. If search warrant is no good, you can't save the evidence based on good faith reliance (this is different from the MBE rule)
What happens if illegal evidence is admitted, and the defendant gets convicted?
Conviction should be overturned, unless the government can show, beyond a reasonable doubt, that the error was harmless.
Is denial of right to counsel at trial ever a "harmless error"?
NO - harmless error standard never applies to denial of right to counsel at trial.
What does the Fourth Amendment provide?
People should be free from unreasonable searches and seizures.
Are arrests seizures?
Yes, government seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and must be reasonable.
What must the police have to make an arrest?
Probable cause
What is probable cause?
Trustworthy facts or knowledge sufficient for a reasonable person to believe that a susupect has committed or is committing a crime.
What is a seizure?
A seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government
NY - is hot persuit considered a seizure?
Yes, in NY, hot persuit is considered a seizure.
Are arrest warrants required to make non-emergency arrests of people in their own homes?
Yes, arrest warrants are generally required in non-emergency arrests of individuals in their own homes.
Are arrests warrants required before arresting someone in a public place?
No. In general, arrests warrants are NOT required before arresting someone in a public place.
When can police make an "investigatory detention" (also known as a stop & frisk)
1) Reasonable suspicion of criminal activity or involvement in a crime, supported by
2) articulable facts
When can police frisk a "stop-and-frisk" detainee for weapons?
When they have a reasonable suspicion that the detainee is armed and dangerous, the police may frisk the detainee for weapons.
What is the permissible duration and scope of a stop and frisk?
Duration: no longer than necessary to conduct a limited investigation to verify suspicion

Scope: name of detainee (can arrest detainee for failure to comply)
When will a stop-and-frisk detention turn into an arrest?
If probable cause for arrest arises during he detention, the detention will turn into an arrest.
In general, when can police stop a car?
1) reasonable suspicion to believe law has been violated
2) roadblocks whcih stop cars on basis of neutral, articulable standard, and are designed to serve purposes closely related to a particular problem related to automobiles and their mobility (drunk driving, but not search for illegal drugs)
After police stop a car, what else can they do?
Police may order the occupants of the vehicle to get out, in the interest of officer safety.

If officer reasonably suspects detainees to be armed, he may frisk occupants and search passenger compartment for weapons, even after occupants are out of the car.
Pretextual stops
CONSTITUTIONAL - When police stop a car based on a reasonable belief that the driver violated a traffic law, but the police really want to investigate something else for which the police lack reasonable suspicion.
Can police prevent you from entering your house?
If they have probable cause to believe drugs are hidden in the house, the police can, for a reasonable time, prevent you from going into your home unaccompanied until they can get a search warrant.
When can a police officer use deadly force to apprehend a suspect?
Deadly force can't be used unless officer has PC to believe that suspect poses a significant threat of death or serious physical injury.
What are the levels of police authority in NY for arrest & detention, and what are the standards for each?
1) Request for information - not on a whim or caprice
2) Common law right to inquire - founded suspicion
3) Stop & frisk - reasonable suspicion
4) Arrest - probable cause
Analysis for determining whether evidentiary searches & seizures are valid...seven questions:
1) was the search by a government agent?
2) did defendant have a reasonable expectation of privacy?
3) did government have a warrant?
4) was there an exception to the warrant requirement?
5) was the warrant proper?
6) did the police rely in good faith on the warrant?
7) was the warrant properly executed?
Valid search & seizure: what is considered government conduct?
1) publicly paid on or off-duty police officer
2) deputized individual
3) private individual acting at direction of public police

NOT a private security guard, unless person is deputized with arrest powers
Who has a definite legitimate expectation of privacy (automatic standing)?

Special NY rule...
1) owns or lawfully possesses the premises searched
2) lives on premises searched
3) overnight guest of owner

NY: co-defendants traveling in a vehicle are permitted automatic standing to challenge charges of criminal possession of a weapon which arise solely because of presumption of possession attributed to all passengers when weapons are found in vehicle
Who may have a legitimate expectation of privacy (sometimes standing)?
Persons legitimately present during the serach

Persons who own property seized.
What things are considered public (thus, no right of privacy attached to such)? (there are 9 examples)
1) voice sound
2) handwriting
3) paint on outside of car
4) records of accounts at banks
5) location of car on street or driveway
6) anything that can be seen across an open field
7) anything that can be seen by flying overhead in public air space
8) odors from luggage
9) garbage on curb
What standard of suspicion is required for a warrant to be issued?
Probable cause that seizable evidence will be found on person or premises to be searched.
How is probable cause presented to the magistrate who issues warrants?
Affidavit of the police.
On the MBE, what standard does an affidavit have to meet when part of the probable cause is derived from an anonymous informant?
"Totality of the circumstances test" (so, the affidavit may be sufficient even though the reliability and credibility of the informant or his basis for knowledge are not established)
In NY, what standard does an affidavit have to meet when part of the probable cause is derived from an anonymous informant?
In NY, the affidavit for the warrant must:
1) set forth sufficient underlying facts and circumstances to let the magistrate know how the informant got the information, AND
2) affidavit must establish reliability and credibility of informant (through prior use, successful prior tips, etc)
How can defendant prove a search warrant was invalid by virtue of a bad affidavit?
1) false statement included in the affidavit by the officer,
2) affiant intentionally or recklessly included the false statement, AND
3) false statement was material to finding of PC
What does it mean for a warrant to be precise on its face?
Warrant must state with particularity the place to be searched and items to be seized--if not, it's unconstitutional.
Who can issue a warrant?
A neutral and detached magistrate or judicial officer (judge; court clerk in NY for city ordinaces).

NOT: attorney generals
Who can execute a warrant?
Only the police.
Explain the knock and announce rule
Police must knock, announce their purpose, and wait a reasonable time for admittance, UNLESS there is reasonable suspicion that doing so would be dangerous, futile, or inhibitory.
What can police seize when they have a valid search warrant?
Any contraband or fruits of instrumentalities of crime that they discover, whether or not specified in the warrant.
Exceptions to the warrant requirement:
1) search incident to lawful arrest
2) auto exception
3) plain view
4) consent
5) stop & frisk
6) hot pursuit, evanescent evidence, and other emergencies
What are the requirements for a search incident to lawful arrest?
1) arrest must be lawful
2) search must be contemporaneous with arrest
3) individual and individual's wingspan are covered
On the MBE, what is the individual's wingspan as far as cars go?
The wingspan includes the entire interior of the car, and everything in the car, except the trunk (and doesn't matter if suspect is already out of the car).
In NY, what is the individual's wingspan as far as cars go?
Officer must suspect that the arrested person may be armed to search containers in wingspan.

Once occupant is out of car, oplice may not remove closed containers or bags to look for weapons or other evidence.
What is the auto exception to warrant requirement?
If police have PC to believe vehicle contains evidence of crime, they can search whole vehicle, trunk, and any container that might reasonably contain the item.

If warrantless search is valid, police can tow and search later.
What are the elements of the plain view exception to the warrant requirement?
Police may make a warrantless seizure when they:
1) are legitimately on the premises
2) discover evidence, fruits, or instrumentalities of crime, or contraband,
3) see such evidence in plain view
4) have probable cause to believe that the item is evidence, contraband, or a fruit of the instrumentality of a crime.
For consent to be valid... (crim pro)
Must be volutary and intelligent, and person must have authorization.
What is admissible evidence found in a valid stop-and-frisk?
Weaopns so long as stop was reasonable.

Other evidence of crime, so long as articulable.
What is the emergency exception to the warrant requirement in NY?
Police must have reasonable grounds to believe that there is an emergency at hand and an immediate need for assistance for protection of life or liberty
2) search must not be motivated by intent to arrest or seize evidence
3) must be some reasonable basis, approximating probable cause, to assoicate emergency with area to be searched.
Analysis of confessions: 5-question test for admissibility
1) Was defendant's statement voluntary?
2) Was defendant in custody?
3) Was statement made in response to known police interrogation?
4) Were Miranda warnings given?
5) Did defendant knowingly and voluntarily waive right to remain silent and right to counsel?
What is the standard for assessing voluntariness of a self-incriminating statement on the MBE?
Totality of the circumstances.
When will a statement be deemed involuntary (MBE)
Only if there is some official compulsion.
What is the NY distinction regarding voluntariness of self-incriminating statements?
Arthur Hobson Rule: the length of the interrogation and custody are factors in determining voluntariness of confessions.
What is the 6th Amendment Right to Counsel
Guarantee of assistance of counsel in a criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (formal charges filed)
What does 6th Amendment Right to Counsel do?
Prohibits police from deliberately eliciting incriminating statements from defendant outside the presence of counsel after defendant has been charged, unless right to counsel has been waived.
Is the 6th Amendment offense specific?
YES - attorney only has to be present when person is being asked about the specific case attorney is working on.
NY rule regarding waiver of 6th Amendment right to counsel.
If defendant has counsel, he cannot waive right to counsel later UNLESS counsel is present during the waiver.
What is the right to counsel as far as the 5th Amendment is concerned?
The 5th A right to counsel arises in only one circumstance: when someone, after being Mirandized, says: I need a lawyer.
Is the 5th Amendment right to counsel (privilege against self incrimination) offense specific?
NO
Why must Miranda warnings be given?
For an admission or confession to be admissible under the 5th Amendment privilege against self-incrimination, a person in custoday must, prior to interrogation, be informed that:
1) right to remain silent
2) anything he says can be used against him in court
3) right to presence of attorney
4) if can't affort attorney, one will be appointed for him if he so desires
What Constitutional right does failure to give Miranda violate?
5th Amendment privilege against self-incrimination (which is preserved by presence of counsel...thus, right to counsel exists)
Are there any exceptions to Miranda?
Public safety exception
NY's right to counsel, special rule
New York provides for an indelible right to counsel, which attaches:
1) def in custody, police activity would be overwhelming to a layperson, and defendant requests counsel
2) at arraignment
3) on filing of accusatory instrument (grand jury charge)
4) any significant judicial activity
NY Infant's right to parent
In NY, attempts to keep parents from their infant children being held bypolice may invalidate a confession (infants in criminal law are under 16)
Must counsel be present when victim is shown photographs?
Not under 6th Amendment.

But, defendant may be able to attack under DP standard if process was unnecessarily suggestive & substantial likelihood of misidentification.
In NY, when does a right to counsel exist at investigatory lineups held prior to formal prosecutorial action?
When police are aware that defendant is represented by counsel on another charge, and defendant explicitly requests his attorney
When may a grand jury indict in NY?
1) evidence establishes all elements of crime
2) evidence is legaly sufficient (competent)
3) evidence established reasoanble cause to believe accused committed the crime
Explain prosecutorial duty to disclose exculpatory evidence (MBE):
Government has duty to disclose material, exculpatory evidence to defendant.

Failure = due process clause violation.

Remedy for failure: reversal of conviction, if defendant can prove
1) evidence is favorable to him because it either impeaches or is exculpatory, and
2) prejudice has resulted.
When does defendant have right to jury trial?
If maximum sentence could exceed six months.
Minimum number of jurors required:
6, but if only 6, must be unanimous.
Elements of proving ineffective assistance of counsel (MBE)
must prove:
1) deficient performance by counsel, and
2) but for that deficient performance, outcome would have been different
Elements of proving ineffective assistance of counsel in NY:
Def must show:
1) attorney failed to provide meaningful representation
2) errors were sufficiently egregious and prejudicial as to compromise right to fair trial, AND
3)that there was no strategic explanation for counsel's performance

and, if citing ineffective assistance for failure to make a motion, that motion must be proven to have had a reasonable chance of success
What is involved when judge accepts a guilty plea?
1) judge must determine whether plea was voluntary and intelligent (in open court, on the record)
2) must ask defendant if he knows and understands
a) nature of charge and crucial elements
b) maximum possible penalty, and mandatory minimum
c) right not to plead guilty
d) pleading guilty = no trial
When will a guilty plea be set aside?
1) involuntariness
2) lack of jurisdiction
3) ineffective assistance of counsel
4) failure of prosecutor to keep agreed upon plea bargain
NY - Notice of Intent to Present Insanity Defense
Defendant must notify prosecutor 30 days from "not guilty plea" if raising insanity as a defense.
NY - Notice of Alibi Defense
Within 20 days after arraignment, prosecutor may serve defendant with demand for alibi defense and defendant must reply within 8 days.
MBE - Notice of Alibi and Intent to Present Insanity Defense
If defendant is going to use alibi or insanity defense, he must notify prosecution.