Crim Pro

Front 1

What is the exclusionary rule? (aka the fruit of the poisonous tree doctrine)

Back 1

The exclusionary rule is a judge made doctrine that prohibits the introduction of evidence obtained in violation of the D's 4th, 5th, and 6th amendment rights. Under the rule, unconstitutionally obtained evidence is inadmissible at trial and all "fruit of the poisonous tree" must also be excluded.

Front 2

What are exceptions to the fruit of the poisonous tree doctrine?

Back 2

1) fruits of statements obtained in violation of miranda 2) evidence obtained from a source independent of the illegality 3) an intervening act of free will by the D 4) inevitable discovery--ie if the prosecution can show that the police wld have discovered the evidence whether or not the police acted unconstitutionally 5) violations of the knock and announce rule

Front 3

When is the exclusionary rule NOT applicable?

Back 3

The exclusionary rule does apply in grand jury proceedings (unless evidence was obtained in violation of fed wiretapping statute), at parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to state law/agency rules

Front 4

What is the harmless error test?

Back 4

If illegal evidence is admitted, a resulting conviction shld be overturned on appeal unless the gov can show beyond a reasonable doubt that the error was harmless. (but the harmless error standard never applies to the denial of the right to counsel at trial)

Front 5

What is the fourth amendment?

Back 5

It provides that ppl shld be free from unreasonable searches and seizures

Front 6

Are arrests seizures?

Back 6

Yes, gov seizures of ppl--including arrests--are seizures within the scope of the 4th amendment. And they must be reasonable.

Front 7

What constitutes a seizure, more generally?

Back 7

A seizure occurs when a reasonable person wld believe that she is not free to leave or terminate an encounter w/ the gov

Front 8

What are the elements of an arrest?

Back 8

An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation. Requires: 1) probable cause (ie trustworthy facts or knowledge sufficient for a reasonable prsn to belie that the suspect has committed a crime; 2) a warrant is generally not required, unless it's a home arrest. (a warrant is not required b4 arresting a prsn in a public place).

Front 9

What is an investigatory detention--ie stop and frisk?

Back 9

If the police have REASONABLE SUSPICION of criminal activity or involvement in a completed crime, supported by ARTICULABLE FACTS, they may detain a person for investigative purposes. If the police also have reasonable suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons.

Front 10

What is the duration and scope of an investigation?

Back 10

The detention must be no longer than necessary to conduct a limited investigation to verify the suspicion. The police may ask the detained person to identify himself and generally may arrest the detainee for failure to comply with such a request.

Front 11

Generally, what entitles the police to stop a car?

Back 11

Generally, police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated.

Front 12

Under what conditions can the police set up roadblocks to stop cars without individualized suspicion that the driver violated some law?

Back 12

If special law enforcement needs are involved, the SC allows police to set up roadblocks to stop cars without individualized suspicion.

Front 13

Under what conditions, will the roadblock will be valid?

Back 13

1) the roadblock must stop cars on the basis of some neutral, articulable standard (ie every car) and 2) be designed to serve purposes closely related to a particular problem pertaining to autos and their mobility (ie for drunk drivers)

Front 14

What are the other important elements of an auto stop?

Back 14

1) it involves the seizure of all occupants (passengers can raise a a wrongful stop as a reason to exclude evidence found during the stop) 2) police may order occupants out 3) pretextual stops are ok (ie if police reasonably believe that a driver violated a traffic law, they may stop the car--even if their ulterior motive is to investigate whether some other law--for which the police lack reasonable suspicion--has been violated.

Front 15

What are the analytical steps to follow for an evidentiary search and seizure?

Back 15

1) Does the D have a 4th amendment right--ie was there a search of seizure by a government agent and did the search violate the D's reasonable expectation of privacy? 2) did the government have a warrant 3) was the warrant proper? 4) or was the search within a warrantless search exception?

Front 16

Does the 4th amendment protect against NON-governmental conduct?

Back 16

No--it ONLY protects against gov conduct (ie police or other gov agents) and not against private persons, including security guards, UNLESS they are deputized as officers of the public police.

Front 17

What are examples where a person always has a reasonable expectation of privacy?

Back 17

1) anytime a person owned or had a right to possession of the place searched 2) the place was in fact his home 3) he was an overnight guest of the owner of the place searched

Front 18

What are examples where there is NO reasonable expectation of privacy?

Back 18

sound of one's voice; one's handwriting; paint on the outside of one's vehicle; account records held by a bank; location of one's vehicle on the public roads or its arrival at a private residence; areas outside the home and related buildings (curtilage); garbage left for collection; land visible from a public place, even from a plane or helicopter; the small of one's car or luggage

Front 19

When will a warrant be issued (remember: generally the police must have a warrant to conduct a search, unless it falls into an exception)

Back 19

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers' conclusions

Front 20

Under what conditions will a warrant be INVALIDATED?

Back 20

All three of the following must be met: 1) a false statement was included in the statement by the affiant 2) the affiant intentionally or recklessly included the false statement and 3) the false statement was material to the finding of probable cause

Front 21

What are exceptions to the warrant exception?

Back 21

1) search incident to a constitutional arrest 2) auto exception 3) plain view 4) consent 5) stop and frisk 6) hot pursuit, evanescent evidence

Front 22

What is a search incident to a lawful arrest?

Back 22

If the arrest is based on probable cause to believe that a law has been violated, the police may search the person and areas into which he might reach to obtain weapons or destroy evidence. The police may also make a protective sweep of the area if they believe accomplices may be present.

Front 23

What is the auto exception?

Back 23

If the police have probable cause to believe that a vehicle contains the fruits, instrumentalities or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.

Front 24

What can the police search under the auto exception

Back 24

1) passenger's belongings (search is not limited to driver's belongings) 2) containers placed in vehicle

Front 25

What is the plain view exception?

Back 25

The police may make a warrantless seizure when they: a) are legitimately on the premises b) discover evidence, fruits or instrumentalities of crime c) see such evidence in plain view d) have probable cause to believe that the item is evidence/contraband or a fruit of instrumentality of crime.

Front 26

What is a stop and frisk?

Back 26

A police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. The officer may require the detainee to state his name, and if the officer also reasonably believes that the person may be armed and presently dangerous, she may conduct a protective frisk.

Front 27

Is a stop an arrest?

Back 27

NO!--a stop is NOT an arrest--the officer does NOT need to have probable cause. But, the officer must believe that criminal activity is afoot. A frisk is ONLY justified if the officer reasonably thinks that the suspect has a weapon.

Front 28

What is the scope of the frisk permitted?

Back 28

The frisk is generally limited to a patdown of outer clothing, unless the officer has specific info that a weapon is hidden in a particular area of a suspect's clothing.

Front 29

What are the requirements of a warrant?

Back 29

A warrant must describe with REASONABLE PRECISION the place to be searched and items to be seized.
(probable cause and particularity)

Front 30

When will a warrant be issued?

Back 30

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on hte person or premises at the time the warrant is executed. Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers' conclusions.

Front 31

Is warrant required for a public school search?

Back 31

NO! A warrant or probable cause is not required for public school officials to search public school students or their possessions. Only REASONABLE GROUNDS for the search are necessary. A school search will be held to be reasonable only if: 1) it offers a moderate chance of finding evidence of wrong doing 2) the measures adopted to carry out the search are reasonably related to the objectives of the search and 3) the search is not excessively intrusive.

Front 32

Does wiretapping constitute a search under the 4th amendment?

Back 32

Yes--any form of electronic surveillance violating a reasonable expectation of privacy constitutes a search under the 4th amendment.

Front 33

When will a valid warrant authorizing a wiretap be issued?

Back 33

If: 1) there is probable cause 2) the suspected persons involved int eh conversations to be overheard are named 3) the warrant describes with particularity the conversations that can be overheard 4) the wiretap is limited to a short period of time 5) the wiretap is terminated when the desired information has been obtained 6) return is made to the court, showing what conversations have been intercepted.

Front 34

What are the 14th amendment requirements for confessions to be admissible?

Back 34

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion.

Front 35

What is the harmless error test regarding confessions?

Back 35

If an involuntary confession is admitted into evidence, the harmless error test applies--this means that conviction need not be overturned if there is other overwhelming evidence of guilt.

Front 36

What is the 6th amendment right to counsel?

Back 36

The 6th amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution AFTER JUDICIAL PROCEEDINGS HAVE BEGUN (ie after formal charges have been filed). This prohibits the police from deliberately eliciting an incriminating statement from a D outside the presence of counsel AFTER THE D HAS BEEN CHARGED unless he has waived his rights to counsel.

Front 37

Does a D who is arrested BUT NOT YET CHARGED have a 6th amendment right to counsel?

Back 37

NO!--There can be no violation of the 6th amendment right to counsel before formal proceedings have begun. So, a D who is arrested but not yet charged has a 5th amendment right to counsel under Miranda, but not a 6th amendment right to counsel.

Front 38

What are the stages at which a D has a right to be represented by counsel?

Back 38

1) custodial police interrogation 2) post-indictment interrogation, whether or not custodial 3) preliminary hearings to determine probable cause to prosecute 4) arraignment 5) post-charge lineups 6) guilty plea and sentencing 7) felony trials 8) misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed 9) overnight recesses during trial 10) appeals as a matter of right 11) appeals of guilty pleas

Front 39

When are the stages when D DOES NOT HAVE A RIGHT TO COUNSEL?

Back 39

1) blood sampling 2) taking handwriting or voice exemplars 3) precharge or investigative lineups 4) photo IDs 5) preliminary hearings to determine probable cause to detain 6) brief recesses during the D's testimony at trial 7) discretionary appeals 8) parole and probation revocation proceedings and 9) post-conviction proceedings

Front 40

Is the 6th amendment OFFENSE SPECIFIC?

Back 40

YES! So, even if a D's 6th amendment rights have attached regarding the charge for which he is being held, he may be questioned regarding UNRELATED, UNCHARGED offenses without violating the 6th amendment right to counsel

Front 41

Can the 6th amendment right to counsel be waived?

Back 41

yes, the waiver must be knowing/voluntary and intelligent.

Front 42

Can a statement obtained in violation of a D's 6th amendment right to counsel be used for impeachment?

Back 42

YES. While a statement obtained in violation of a D's 6th amendment right to counsel is not admissible in the prosecution's chief in case, it may be used to impeach the D's contrary trial testimony

Front 43

What is the 5th amendment privilege against compelled self-incrimination?

Back 43

These are also known as MIRANDA WARNINGS. They provide that: for an admission or confession to be admissible under the 5th amendment privilege against self-incrimination, a person in custody must--PRIOR TO INTERROGATION--be informed, in substance that: 1) he has the right to remain silent 2) anything he says can be used against him in court 3) he has the right to the presence of an attorney and 4) if he cannot afford an attorney, one will be appointed for him if he wants

Front 44

What does it really mean that any one in the CUSTODY of the government and accused of a crime must be given Miranda warnings PRIOR to INTERROGATION by the police?

Back 44

D must know that he is being interrogated by a gov agent; teh custody requirement is based on objective circumstances (arrest is custody but a routine traffic stop is NOT)

Front 45

Can a suspect waive his MIRANDA rights?

Back 45

yes, he can--but the prosecution must prove that the waiver was knowing, voluntary and intelligent

Front 46

What happens if the accused unambiguously indicates that he wishes to speak to counsel?

Back 46

Then, ALL QUESTIONING MUST CEASE until counsel has been provided, unless the accused waives his right to counsel.

Front 47

What is the difference regarding re-questioning if the suspect asks for the right to remain silent vs. if he asks for the assistance of counsel?

Back 47

If the D indicates that he wishes to remain silent, the police probably may re-question him about a different crime after a break if fresh warning are administered. If the D requests counsel, the police may not resume interrogating D until counsel is provided or the D initiates the questionin.

Front 48

What is the effect of a Miranda violation?

Back 48

Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. *though statements obtained in violation of miranda can be used to impeach the D's trial testimony (just cannot be used as evidence of guilt)

Front 49

Does a suspect have a 6th amendment right to counsel at a post-charge line-up or show-up?

Back 49

YES. An accused has a right to the presence of an attorney at any POST CHARGE lineup or showup. But, an accused does NOT have a right to counsel at photo IDs or when police take physical evidence, such as handwriting exemplars or fingerprints from him.

Front 50

On what other basis can a D object to an identification?

Back 50

A D can attack an ID as denying due process if the ID is unnecessarily suggestive and there is a substantial likelihood of misidentification.

Front 51

What is the right to confront a witness?

Back 51

The 6th amendment grants a D in a criminal prosecution to the right to confront adverse witnesses. (but right is not absolute)

Front 52

What are some features of grand jury proceedings?

Back 52

1) secrecy and lack of access (D has no right to notice that the grand jury is considering an indictment against him) 2) no right to counsel or to Miranda warnings 3) no right to have evidence excluded (a grand jury may base its indictment on evidence that wld be inadmissiable at trial)

Front 53

What are some of the major differences btwn grand jury proceedings and criminal trials?

Back 53

1) D has no right to have counsel present during his grand jury testimony 2) the grand jury may consider evidence that wld be excluded at the criminal trial (illegally obtained evidence or hearsay) 3) the D must appear if called, although he can refuse to answer specific questions on the grounds that they may incriminate him

Front 54

When does the 6th amendment right to a speedy trial attach?

Back 54

The right to a speedy trial only attaches once the D has been arrested or charged.

Front 55

When is a D incompetent to stand trial?

Back 55

If he either 1) lacks a rational as well as a factual understanding of the charges and proceedings or 2) lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding

Front 56

What is the difference btwn "competency" and "insanity"?

Back 56

Insanity is a defense to a criminal charge based on the D's mental condition at the time he committed the charged crime. (A D acquitted by reason of insanity may not be retried and convicted). Incompetency to stand trial is not a defense to the charge, but rather a bar to trial. This is based on the D's mental condition at the time of trial.

Front 57

Under what circumstances is there a constitutional right to a jury trial?

Back 57

There is a constitutional right to a jury trial ONLY for serious offenses. (An offense is considered serious if imprisonment for more than 6 months is authorized)

Front 58

What is the rule regarding the number and unanimity of jurors?

Back 58

There's no constitutional right to a jury of 12. But there must be at least 6 jurors to satisfy the right to a jury trial.

Front 59

What is the representative cross section requirement regarding juries?

Back 59

A D has a right to have the jury selected from a representative cross-section of the community.

Front 60

Are there any rules regarding peremptory challenges?

Back 60

Although generally a prosecutor may exercise peremptory challenges for any reason, the equal protection clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender.

Front 61

Is there a right to counsel available for misdemeanor cases?

Back 61

There is ONLY a right to counsel available in misdemeanor cases if imprisonment is actually imposed.

Front 62

What is required to show that the 6th amendment's right to effective counsel was ineffective?

Back 62

The claimant must show: 1) deficient performance by counsel and 2) but for the deficiency, the result of the proceeding wld have been different
NOTE: *D must point out specific deficiencies; cannot base the claim on inexperience/lack of time to prepare/complexity of the defenses etc.

Front 63

What is the 6th amendment right to confront witnesses?

Back 63

The 6th amendment grants to a D in a crimina prosecution the right to confront adverse witnesses. (Right is NOT absolute though).

Front 64

Is prior testimonial evidence (eg statements made at prior judicial proceedings) admissible under the confrontation clause?

Back 64

Prior testimonial evidence may not be admitted unless 1) the D is unavailable and 3) the D had an opportunity to cross examine the declarant a the time the statement was made

Front 65

What is an example of something that is NOT testimonial?

Back 65

Statements from police interrogations intended to aid the police in responding to an ONGOING EMERGENCY--such as answering a 911 operator's question while reporting a crime in progress--are not testimonial

Front 66

What is the 8th amendment?

Back 66

The 8th amendment prohibits CRUEL AND UNUSUAL PUNISHMENT (a penalty that is grossly disproportionate to the seriousness of the offense committed is cruel and unusal)

Front 67

What are the rights regarding plea bargaining?

Back 67

The judge must determine that the plea is VOLUNTARY AND INTELLIGENT. This must be done by addressing the D personally in open court on the RECORD. D must know and understand things like: 1) the nature of the charge to which the plea is offered and the crucial elements of the crime charged 2) the max possible penalty and any mandatory minimum and 3) that he has a right not to plead guilty and if he does plead guilty, he waives the right to trial

Front 68

What is the rule regarding DOUBLE JEOPARDY?

Back 68

Under the 5th amendment, a person may not be retried for the same offense (ie two crimes based on the same conduct) once jeopardy has attached.

Front 69

When does jeopardy attach?

Back 69

In a jury trial, jeopardy attaches at the empaling and swearing of the jury. In bench trials, jeopardy attaches when the first witness is sworn.

Front 70

What are the exceptions (ie that allow retrial of a D) for when jeopardy has attached?

Back 70

1) a state may retry a D whose first trial ends in a HUNG JURY 2) a trial may be discontinued and the D re-prosecuted for the same offense when there is manifest necessity to abort the original trial 3) a state may retry a D who has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict.

Front 71

What is the rule regarding the "same offense"?

Back 71

Two crimes are the same offense UNLESS each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes

Front 72

If there is a legislative intent to have cumulative punishments for the same offense, then are multiple punishments permissible?

Back 72

Yes

Front 73

Does the double jeopardy prohibition apply to trials by separate sovereigns?

Back 73

NO! A person may be retried for the same conduct by both the state and federal governments or by two states, but not by a state and its municipalities.

Front 74

Is there a privilege against compelled self-incrimination?

Back 74

Yes. (only natural persons may assert the privilege, not corporations or partnerships)

Front 75

When may the privilege against compelled self-incrimination be asserted?

Back 75

A person may refuse to answer a question whenever his response might furnish a link in the chain of evidence needed to prosecute him. (the privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution).

Front 76

How does the privilege apply in criminal trials?

Back 76

A criminal defendant has a right to take the witness stand at trial and not to be asked to do so.

Front 77

What is the scope of the privilege against compelled self-incrimination?

Back 77

The 5th amendment privilege protects only testimonial or communicative evidence and not real or physical evidence. For a suspect's communication to be considered testimonial, it must relate to a factual assertion or disclose information.