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106 Cards in this Set

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  • Back
What is the exclusionary rule?
It prohibits introduction of evidence obtained in violation of a defendant's Fourth, Fifth, or Sixth Amendment rights.
What is the fruit of the poisonous tree doctrine?
It holds that not only is improperly obtained evidence inadmissible, but the fruits of that evidence are inadmissible as well.
What are the exceptions to the fruits of the poisonous tree doctrine?
(1) Evidence obtained from a source independent of the original illegality
(2) An intervening act of free will by the defendant
(3) Inevitable discovery
To what types of proceedings does the exclusionary rule NOT apply?
(1) Grant Juries (still exclude violations of wiretapping)
(2) Civil Proceedings
(3) Internal Agency Rules
(4) Parole Revocation Proceedings
What are the three major good faith exceptions to the exclusionary rule?
(1) Good faith reliance on judicial opinion that was changed by a later opinion
(2) Good faith reliance on a statute later found unconstitutional
(3) Good faith reliance on a defective search warrant
If an officer relies in good faith on a fault warrant, is the evidence always admissible?
No. There are four exceptions to the exception
(1) The affidavit was so lacking in probable cause that no reasonable officer would rely on it
(2) The warrant was defective on its face
(3) Police officer or government official obtaining the warrant lied to the magistrate
(4) The magistrate has "wholly abandoned his judicial role."
What are the four major exceptions to the exclusionary rule?
(1) Inapplicable to GJs, civil proceedings, agency rule, parole
(2) Good Faith Exceptions
(3) Use of excluded evidence for impeachment: voluntary confession in violation of Miranda, evidence obtained from illegal search OK to impeach DEFENDANT
(4) Fruits of Miranda violations may be admissible
To what kind of constitutional violation does the "fruits of the poisonous tree" doctrine NOT apply?
Miranda violations
What is the burden of proof for admission of evidence?
The GOVERNMENT must convince the JUDGE by a PREPONDERENCE of the evidence.
Are warrants required for an arrest?
Generally, warrants are NOT REQUIRED for an arrest in a public plce.
However, a warrant IS REQUIRED to arrest an individual in his own home.
What standard must the police meet in order to (1) ARREST or (2) require you to come to the stationhouse for fingerprinting or interrogation?
Probable Cause
It is trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.
How should you approach a search & seizure question?
(1) Are the defendant's fourth amendment rights implicated?
a. Is there government
b. Does defendant have a
reasonable expectation of
(2) Was there a valid warrant? If not, does one of the exceptions apply?
(3) If no valid warrant, was there a valid warrantless search and seizure?
For search and seizure, who is a government actor?
Publicly paid police are government actors, as are any private individuals acting at the direction of the police.
Private police are NOT government actors UNLESS they are deputized to arrest.
Who has standing to assert that their rights to no imporper searches or seizures were violated?
Three categories of automatic standing
(1) Defendant owns the premises
(2) Defendant lives on premises
(3) Defendant was an overnight guest on the premises
Two categories of sometimes standing
(1) Legitimately present when search takes place
(2) If you own the property seized
If you are a passenger in a car, and the car is searched, do you have standing to assert your 4th Amendment rights?
NO, even though you were legitimately present when the search took place.
If you are a drug dealer, on the premises of someone else to cut up drugs for dale, do you have standing to assert your 4th Amendment rights if the premises are searched?
NO, even if the items seized were yours.
When does one NOT have a reasonable expectation of privacy?
What are the nine examples of this?
When the thing seized is "held out to the public." P.A.P.A.L. H.O.G.S.
P.aint on outside of car
A.ccount records held by bank
P.ublicly visible space
A.reas outside the home and related buildings
L.ocation of car on public roads and home
H.andwriting's voice
S.mell of luggage or car
How do you tell if a warrant is valid?
Three requirements:
(1) It must be founded on probable cause.
(2) It must be valid on its face - place searched and things to be seized
(3) Magistrate must be neutral and detatched
How will a magistrate determine if there is probable cause to issue a warrant?
(1) May use hearsay
(2) May use informants if sum of observations and informant was enough to allow judge to make a common sense decision
How does one tell if the magistrate issuing a warrant is neutral and detatched.
(1) No prosecutors/lawyers as magistrates
(2) No payment for warrants
(3) No excessive involvement with police
Who counts as a neutral and detatched magistrate? Just judges?
Magistrates who meet above criteria, obviously.
Clerks for violations of city ordinance
If there is no good faith reliance on a bad warrant, or no warrant at all, what six exceptions must you consider for admissibility of evidence?
Incident to A.rrest
Plain V.iew
E.xigent Circumstances
A.utomobile exception
T.erry Stop
What does it mean for a search to be "incident to a lawful arrest?"
The search is then permissible, even without a warrant. But
(1) The arrest must be lawful
(2) The search must be contemporaneous with the arrest
(3) It is limited to the person and his grabbing area
(4) However, if it is a car, can search whole car except trunk (not mere grabbing area)
For warrantless searches, what is the "automobile exception?"
You need:
(1) Probable cause to believe that the car contains fruits of crime or contraband
(2) If there is probable cause, can search whole car including trunk
(3) Can only search areas that could possibly contain item related to probable cause
(4) May only arrest AFTER finding contraband or fruits of crime
For the "automobile exception" to warrantless searches, may the probable cause arise after the car is stopped?
YES. However, it MUST arise before the car is subject to search.
What is the requirement of the "plain view" exception to warrantless searches?
It simply requires that the officer be legitimately present where he does the viewing.
What are the requirements for consent, as an exception to warrantless searches.

This is a fact-specific inquiry.
If police say to someone that they have a search warrant, and that person consent, only to find out later that the warrant was bogus, is the consent still valid?
Do the police have to warn you that you have a right NOT to consent to a search?
If two people have equal rights to use of a property, can one consent to a search of the whole property?
YES. For example, a roommate to an apartment can consent to a search of the entire apartment.
If two people have equal rights to use of a property, and one consents and one does not, whose words control?
The non-consent controls.
What is the cause requirement for a "Terry Stop," as an exception for warrantless searches?
It states that if an officer has a REASONABLE and ARTICULABLE SUSPICION of criminal activity. This is less than probable cause.
When may an officer frisk an individual pursuant to a Terry stop?
If he reasonably thinks that they suspect has a weapon.
What may an officer seize during a Terry stop frisk?
He may seize anything that SEEMS like a weapon or contraband from the pat down.
Usually, the frisk is limited to a pat down of outer clothing, unless officer has a tip that weapon is in some particular place.
What is the EXIGENT CIRCUMSTANCES exception for warrantless searches?
It allows a warrantless search if a suspect is fleeing from police and they are in HOT PURSUIT, or if they are searching for evidence that may disappear without immediate action.
For the purposes of a warrantless search, what is HOT PURSUIT?
The police are less than 15 minutes behind the defendant.
For the exigent circumstances exception for warrantless searches, may the police enter a 3rd person's home?
What if they find contraband in that home?
They may enter a 3rd person's home if the suspect flees there.
If they find contraband of some other crime in the home, they may pursue it.
Is a warrant required for wiretapping and eavesdropping?
YES, but there is one exception:
The "unreliable ear" exception holds that everyone assumes the risk tha tthe person to whom he is speaking has consented to government surveillance or is wired.
For Miranda rights to be implicated, what two things must be present?
(1) Custody
(2) Interrogation
For Miranda, what is CUSTODY?
A person is in custody whenever they are not free to leave.
Police car, jail, even a hospital bed.

Probation interviews and routine traffic stops are NOT custody.
Miranda warnings are derived from the _______ Amendment.
Miranda warnings are derived from the 5th Amendment privilege against self-incrimination.
For Miranda warnings, what is INTERROGATION?
Interrogation can be questions, or it can be behavior that the police knew or should have known would elicit a damaging statement.
Must a Miranda warning be issued for spontaneous statements?
Can a suspect waive his Miranda rights by remaining silent or shrugging his shoulders?
Does Miranda apply to exculpatory statements, or just inculpatory ones?
It applies to BOTH!
Do the Miranda requirements apply to testimony before a Grand Jury?
No - that is not considered custodial interrogation.
Under Miranda, if the accused requests a lawyer, what must happen?
ALL questioning on ANY TOPIC must cease until counsel has been provided.

This request is not offense-specific, but rather applies to the process of police interrogation on any topic.
Is the 6th Amendment right to counsel specific to a particular offense?
YES. If the request for counsel is not in the context of Miranda, then the suspect must request counsel repeatedly for each offense for which he is interrogated.
If a suspect makes a statement after violation of his Miranda rights, what can his statement be used for?
It may be used to impeach the DEFENDANT's statement, but is MAY NOT be used to prove his guilt.
Are there any exceptions to the Miranda warnings?
Yes, there is a public safety exception under which police need not give Miranda warnings when trying to figure out something related to public safety, like the location of a gun.
What are the 2 substantive basis upon which one may attack a pre-trial identification?
(1) Denial of right to counsel. Why? Post charge lineups give rise to a rt to counsel.
(2) Denial of due process. Why? Some pretrial ID techniques are so suggestive and prone to misidentification that they deny DP.
Does a suspect have a right to counsel when the police show the witness or victim photographs of possible suspects?
NO! This is important because it means that this is not a basis upon which to attack a pre-trail identification.
If the court finds that a pretrial identification denied the defendant a right to counsel or violated the DPC, what is the remedy?
It is exclusion of the in court identification.

However, the prosecution can OVERCOME this exclusion by showing that the identification could have come from an independent source (not the proceedings).
How is admissibility of identification evidence determined?
It should be done at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required.
Govt has burden of showing (1) counsel was present; OR (2) accused waived counsel; OR (3) there is an independent source of the ID
If it is an alleged DPC violation, the defendant has the burden.
May one appeal refusal to set bail or setting of excessive bail?
YES, IMMEDIATELY. However, suspects may be held without bail if they pose a danger or would fail to appear at trial.
Is preventative detention of a suspect Constitutional?
Does a state have to use a grand jury as part of the charging process?

Does the federal government?
No, there is no constitutional requirement for grand juries in state proceedings.

The federal government MUST use a grand jury under the 5th Am right to indictment by grand jury.
Does a defendant have any right to notice that a grand jury is considering charging him?
NO. Grand jury proceedings are conducted in secret, and the defendant has no right to be present, confront witnesses, or introduce evidence.
If a witness is subpoenaed to testify before a grand jury, does she have a right to receive Miranda warnings?

He is also not entitled to a warning that he is a potential defendand.

He is also not entitled to have an attorney present.
Is a judge improperly biased if she says that she will give a defendant the maximum sentence if he appears in her court again?
No - that does not qualify as actual malice against the defendant.
When is a judge impermissibly biased?
When the judge has a financial interest in the case or has actual malice against the defendan.
When does the right to a jury trial attach generally?

For contempt?
The right to a jury trial attaches when the maximum authorized sentence EXCEEDS 6 months.

For contempt, the right attaches if the sum of the sentences EXCEED 6 months.
What are the requirements for number and unanimity of jurors?
Need a minimum of 6 UNANIMOUS jurors.
Can have 12, with votes of 10-2 or 9-3.
Most states have adopted a rule of 12 unanimous jurors.
Does a defendant have a right to have her jury represent a cross section of society?
NO. She only has a right to have the jury pool, from which the jurors were selected, represent a cross section of society.
May one use preemptory challenges to dismiss jurors based on
(1) Age?
(2) Sex?
(3) Race?
(1) Yes
(2) NO
(3) NO
Does it matter whether a grand jury contains minorities or not?
YES. A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed WITHOUT REGARD to harmless error.
What is the 6th Am right to a speedy trial?
Violation of the right is evaluated under a totality of the circumstances test. Consider length of delay, reason for delay, whether defendant asserted right, prejudice, etc.
If this right is violated, the trial is dismissed with prejudice.
When does the right to a speedy trial attach?
It attaches once the defendant has been ARRESTED or CHARGED.
When is a defendant incompetent to stand trial?
If he (1) lacks a rational and factual understanding of the charges and proceedings; OR (2) lacks sufficient present ability to consul with his lawyer with a reasonable degree of understanding.

The burden is on the defendant. However, a "clear and convincing evidence" standard is unconstitutionally high.
What is the standard for ineffective assistance of counsel?
(1) A deficient performance by counsel
(2) But for the deficient performance, the result of the proceeding would have been DIFFERENT.
Will the Supreme Court disturb guilty pleas after sentencing?
Generally, no.
What is the "contract theory of plea bargaining?"
It is the current Supreme Court view of plea bargaining. A plea bargain is like a contract, and its terms must be revealed in the record. Both the prosecution and defense are held to it.
What must a judge do during the pleading stage?
He must address the defendant personally as to
(1) The nature of the charge
(2) The maximum authorized sentence and any mandatory minimum sentence
(3) The fact that the defendant has the right to plead not guilty and demand a jury trial
If the pleading stage is conducted improperly, what happens?
The defendant may withdraw his plea and plead again.
What are the four legitimate basis upon which a defendant may withdraw a guilty plea after sentencing?
(1) The plea was involuntary. Some mistake in the pleading process.
(2) Lack of jurisdiction of the court
(3) Ineffective assistance of counsel
(4) Failure of prosecution to keep and agreed-upon plea bargain
When does double jeopardy attach?
It attaches when the jury is sworn in. If it is a bench trial, it attaches when the first witness is sworn in.
Does double jeopardy attach to civil proceedings?
When may a defendant be subject to a new trial despite the double jeopardy doctrine?
(1) Hung jury (need unanimity in most states for guilt or acquittal)
(2) Mistrial for manifest necessity
(3) Retrial after a successful appeal
(4) Breach of an agreed-upon plea bargain by the defendant
Double jeopardy only attaches when the second trial is for the same offense.
What about crimes with overlapping elements?
What about lesser included offenses?
If the second crime has an additional element, then it is not subject to double jeopardy.
Lesser included offenses and their "parents" are subject to double jeopardy.
For double jeopardy, waht count as separate sovereigns.
Federal is separate from state.
States are separate from other states.
States are NOT SEPARATE from their municipalities.
Who may assert a 5th Am Privilege against compelled testimony?
ANYONE may assert it in ANY PROCEEDING.
If you waive your 5th Amendment right against compelled self-incrimination once, does it affect later proceedings?
YES. You must assert your right the first time you are confronted, or it is deemed waived for all later proceedings.
What is the scope of the 5th Am privilege against self-incrimination?
It protects anything to do with our thoughts and evaluations.

It does not protect our hair, tissue samples, etc.
How can the government get around the 5th Am privilege against self-incrimination?
(1) Grant an immunity
(2) Show that there is no possibility of incrimination, such as the running of the S.O.L. for the crime of concern
(3) Get a waiver
What are the types of immunity?
(1) Use and derivative use immunity mean that they can still use testimony obtained before the waiver.
(2) Total immunity means that the person can never be prosecuted for the crime.
Does a grand jury need probably cause to call a witness?
Does the prosecutor have to share all its evidence with the defendant?
Prosecution must share material, exculpatory evidence with the defendant. Failure to do so violates the DPC and is grounds for reversing a conviction if
(1) the evidence is FAVORABLE to him for impeachment or exculpation
(2) PREJUDICe has resulted from its exculsion
Is it OK for the state to:
(1) compel defendant to stand in prison clothing
(2) have defendant visibly shackeled at the penalty phase
(3) expose the jury to influence?
No to all three.

The defendant can only be shackled if he poses a threat to security or of escape.
When can the defense question witnesses about race on voir dire?
When the crim is an interracial capital crime.
When does violation of a right to counsel require reversal?
Only when violated at trial. For all other violations, a harmless error test is applied.
Is the right to counsel guaranteed for misdemeanor cases?
Only if imprisonment is actually imposed.
Can a defendant claiming ineffective assistance of counsel point to general lack of experience, lack of time, gravity of charges, accessibility of witnesses, etc.?
NO. He must point to SPECIFIC deficiencies in representation.
What is the sixth amendment right to confront a witness?
It is a Sixth Amendment right, which gives the defendant in a criminal case the right to confront adverse witnesses.

It is not absolute (protect children witnesses, for ex).
May a defendant voluntarily leave the court room during trial?
Yes. Also, the judge can remove a disruptive defendant.
How does the right to confront adverse witnesses affect co-defendant's confessions?
If 2 people are tied together, and one has a confession implicating the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the defendant's own confession, which is admitted. However, it can be admitted if
(1) All portions referring to the other defendant can be eliminated
(2) The confessing defendant takes the stand and subjects himself to cross examination
(3) The confession of the ontestifying codefendant is being used to rebut a claim that defendant's confession was coerced.
When do prison regulations impinge on due process?
Only when they impose "atypical and significant harship" in relation to the ordinary incidents of prison life. Prinsoners rarely win.
Do prisoners have a reasonable expectation of privacy in their cells?
No. So, the cells can be searched with no warrant.
Can the state regulate prisoners' rights to freedom, religion, and association?
Yes, so long as the regulations are REASONABLY related to PENOLOGICAL INTERESTS. So, incoming mail can be broadly regulated, bu outgoing mail generally cannot be regulated.
For double jeopardy, what is COLLATERAL ESTOPPEL?
It holds that a defendant may not be tried or convicted of a crime if a prior prosecution by the SAME sovereignty resulted in a factual determination inconsistent with one REQUIRED for the conviction.
When does a violation of the Fifth Amendment privilege against self-incrimination occur?
It occurs only when the statements are used against the defendant in a criminal proceeding.
If a defendant takes incriminating notes at a meeting, may the police seize the writing, or would that violates the 5th Am privilege against self-incrimination?
It would no violate the 5th Am, since the writing was already produced and does not require any further compelled testimony by the witness.
Is there a right to trial by a jury in delinquency proceedings?
No, there is no right to a jury trial in delinquency proceedings.
What rights must be given to a child in a delinquency proceeding?
(1) Written notice of charges
(2) Assistance of counsel
(3) Opportunity to confront and cross-examine witnesses
(4) the right not to testify
(5) the right to have guilt establihsed by proof beyond reasonable doubt
Are actions for forfeiture of property civil or criminal?
They are brought directly against property and generally considered quasi-criminal in nature.
Is notice and a hearing required for seizure of property?
It depends on the type of property.
For personal property: NO.
For real property: YES, unless there are exigent circumstances.