Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

71 Cards in this Set

  • Front
  • Back
Exclusionary rule
Prohibits intro of evidence obtained in violation of D's 4th, 5th, and 6th Am rights (i.e. illegal searches, seizures) and all fruit of poisoneous tree evidene also excluded
Exception to fruit of poisonous tree doctrine
1. Evidence obtained from a source INDEPENDENT of original illegallity
2. Intervening act of free will by D (i.e. D illegally arrested but released and later returns to confess)
3. Discovery of it would've been inevitable whether or not they acted unconstitutionally
4. violations of knock and announce rule
Exclusionary rule DOES NOT APPLY to
civil rpoceedings, grand juries, internal agency rules, parole revocation hearings

good faith reliance on law, defective search warrant or clerical error

use of xcluded evidence for IMPEACHMENT purposes of the DEFENDANT (not any other witness)

Miranda violations
Harmless Error Teset
If illegal evidence obtained and a resulting conviction overturned on appeal UNLESS govt can show beyond reasonable doubt that error was HARMLESS
Enforcing exclusionary rule
D entiteld to have admissibilty of evidence or a confession decided as a matter of law by judge out of hearing of the jury (govt bears burden of showing by preponderance of evidence) and D has right to testify at a suppression hearing w/o his testimony used against him in trial on issue of guilt
When reasonable person woudl believe she is not free to leave or terminate an encounter with govt
Person taken into custody against her will for purposes of criminal prosecution or interrogation

Must be based on PROBABLE CAUSE

Warrant not require for arresting a person in PUBLIC PLACE, but must have a warrant for a non-emergency arrest of a person in his HOME
Stop and Frisk (investigatory detentions)
IF police have REASONABLE SUSPICION OF CRIMINAL ACTIVITY OR INVOLEMENT in a completed crime, supported by ARTICULABLE FACTS (not merely a hunch), may detain a person for investigative purposes.

May frisk if reasonable suspcion he is armed and dangerous
Automobile stops
Can't stop a car unless reasonable suspciion to believe a law has violated.

May set up roadblocks to stop cars w/o individualized suspcision (note: MI doesnt allow sobriety roadblocks)

Stops may be PRETEXTUAL
Evidentiary search and seizure analysses
1. Does D have standing - reasonable expectation of privacy
2. Did govt have a VALID WARRANT (isused by neutral detached magistrate, stated with particular fats and reasonably precise, probable cause)?
3. If no valid warrant, did they make a valid warrantless search and seizure?
Warranteless search exception
1. Search incident to lawful arrest
2. Automobile search
3. Plain view
4. Consent
5. Stop and frisk
6. Hot pursuit and evanescent evidence
Proper warrant
Based on probable cause, precise on its face, issued by neutral and detached judge


govt's reliance on warrant was in GOOD FAITH
Properly executed warrant
Withotu unreasonable delay, after announcement, person or place searched or seized within scope of warrant
Search warrant, on basis of an affidavit, invalid if D shows all 3 things:
1. False statement included in affidavit by affiant/officer
2. Officer intentiaonlly or recklessly induced the false statement, AND
3. False statement was MATERIAL to finding of probable cause
Good faith exception to defective warrant
Applies only if polie obtained a warrant and it is INVALID (does not apply if the police failed to obtain a arrant)
Standing under 4th Am
1. Must have owan reasonable expectation of privacy w/ respect to place or item searched - totality of circumstnaces test.

NO Rreasonable expectation of privacy in objects held out to the public (i.e. use of thermal sensing technologicy that is not in general public use to get info from inside a home that couldnt otherwise be obtained w/o physical intrusion violates expectation)
Legitiamte expectation of privacy any time where
1. D owned or had right to possession of place searched
2. Place search was in fact D's own home (whether not he owend it or had right to possession)
3. D was overnight guest of owner of the place searched
SOund of one's voice, one's hadnwriting, paint on outside of one's car, account records held by a bank, location of one's car on public roads or its arrival at a privat residence, areas outside the home and related buildings (curtilage) such as a barn, garbage on the curb, land visible from public place (even a plane or helicopter), smell of one's car or lugage
Search warrant must be PRECISE ON ITS FACE
Must describe w/ reasonable precision the place to be searched and items to be seized otherwise unconstitutional, even if underlying afidavit gives such detail
Search of 3rd party premises
Permissible as long as probable cause to believe evidence will be found there
Knock and announce rule
Only police may execute a warrant withotu unreasonable delay - must knock, announce their purpose and wait 20 seconds unless reasonable suspciion based on facts taht announcing would be dangerous, futile or inhibi tinvestigation and police may seize any contraband or fruits or instrumentalities of crime that they discover whether or not specified in the warrant.
Violations of knowkc and announce rule...
DO NOT RESULT in suppression of evidence otherwise properly obtained. EXCLUSIONARY RULE DOES NOT APPLY.
Search incident to lawful arrest
1 of 6 exceptions to warrant requirement

May search person an dareas into which he might reach to obtain weapons or destroy evidence (incl entire passenger compartment of a car).

May also make a protective sweep of area if believe accomplices are present

Search must be CONTEMPORANEOUS in time and place with the arrest.

If arrest is UNLAWFUL, any search incident thereto is unlawful.
Automobile Exception
1 of 6 exceptions to warrant requirement.

If police have probable cause to believe that a car contians fruits, instrumentalities or evidence of a crime - may search entire car and any container that might reasonably contain item for which they had probable cause to search (containers are limited to those that could contain evidence sought)

If valid, may tow car to station and search later.

Also, if probable cause to believe car itself is contraband, may seize it from public place without warrant.
Consent exception
Dont need probable cause but must be volutnary and intelligent, apparent authority, cannot be against wishes of a co occupant who is present and objecting to the search
Plain View exception
May make seizure when they are legitimately on the premises, discover evidence/fruits/contraband, such evidence in plain view and probable cause to believe such evidence is contraband/fruit/etc

Police MUST BE LEGITIMATELY ON PREMISES (i.e. public sidewalk or in a home executing a warrant). If she seems, smells, hears, it is in plain view.

If executing a search warrant for a handgun and opens a small drawer where gun could be and sees heroin, admissible.
Stop and Frisk
Reasonable and articulable suspcion of crimianl activity to STOP and to frisk, need reasonable belief person is armed
Hot pursuit or emergenices
No time to get a warrant, emergency situation
Admissibility fo D's statements
Depends on whether it was voluntary, whether he was in custody at time of statement, whether statement made in response to KNOWN police interrogation, whether MIRANDA warnings were given, whether D knowingly and volutnarily waived both right to remain silent and right to an attorney
If statement not voluntary - inadmissible.

If D was NOT in custody - Admissible

If statement made in response to known police interrogation - Inadmissible (if he didnt know it was police, admissible)
If Miranda warnings NOT given - inadmissible unless interrogation prompted by concern fo rpublic safety

If Miranda iven and D knowingly voluntarily waived right to remain silent AND right to attorney - admissible
If Miranda warnings given and D invokes only RIGHT TO REMAIN SILENT and police continue questioning...
Confession is inadmissible, unless police honored the request by waiting and bringing in new officials and new warnings given to question on OTHER CRIMES
If Miranda warnings given and D REQUESTS COUNSEL
All questioning must stop unless counsel is present or unless D re-initiated questioning.

Must make unambiguous request for counsel.
Confessions in voilation fo Miranda are admissible to....
IMPEACH D's testimony
If inadmissible confessions erroneously admitted into evidence, a resulting conviction will not be reversed if....
there is other overwhelming evidence of guilt - HARMLESS ERROR TEST
6th Am right to counsel
applies at all critical staes of prosecution after judicial proceedings have begun (formal charges filed, or bench trial when first witness sworn)

No right to counsel at Gerstein hearings to determine probable cause to ARREST

But there is right at preliminary exam to determine probable cause to CHARGE

Offense specific - no right to counsel present on questioning on unrelated, uncharged offenses.

Two offenses different if each requires proof of additional element that the other doesnt require
For an admission or confession to be admissible under 5th Am privielge against self-incrimination, person in custody prior to interrogation must be informed that....
right ot remain silent, anything he says can be used against him in trial, righ tto counsel and righ tot have counsel appointed tho him
Failure to give Miranda warnings
violates D's 5th Am right ot be free from compelled self incrimination (not his 6th Am right to counsel)
pre-charge line up
no right to counsel, but allowed at post-charge lineup or show up
Attack on pretrial identification
1. Right to counsel at POST-CHARGE line up or show up

Remedy for unconstitutional identifications
EXCLUDED (exclusion of in court identification) - rarely granted
If informant placed in prison cell as D and befriends D somewhat coerces D's confession...D's motion to suppress confession will be
GRANTED - confession was COERCED by threat of physical violence (absent protection from govt agents) and motivated D to confess
Issue whether D's confession admissible based on TOTALITY OF CRICUMSTANCES
Look at nature of D (age, sex, race, mental condition, physical condition, history of drug or alcohol abuse) and nature of police conduct
Where police employ a "false friend" like an informant inside prison that befriends D and, by deception, D is unaware that the person he's talking to is a police officer or agent...
Confession obtained will not be involuntary (even if D mistakenly believed the person is trusted).

However, where actual or threatnened physial harm or brutality are involved, enough coercion to neate D's free will
If individual states he wants an attorney, the interrogation must cease until attorney is present, otherwise
it is a violation of 5th Am right to counsel.

If interrogation continues w/o presence of atty and statement is taken, bruden on govt to show D knowingly, intelligently waived privilege against self incrimnation and his right to counsel
Use of preliminary hearing testimony of a W ho is unavailable at trial...
Does not violate D's riht of confrontation. So D's apeal on this would be denied if W unavailable and there was adquate oppty for corss-examination at the preliminary hearing
Intoxication as a claim that Miranda waiver invalid
Doesnt work - can't say you were intoxicated or under influence of drugs or emdication at that time
To claim a Miranda waiver, can't use personal characteristics of D existing at time of purported waiver
Relevant only police overreaching (i.e. can't have a psychiatrist testify that D could not have made a knowingly involuntary waiver b/c he was mentally ill when he made his confession)
Once adversary proceedings have been commenced against a D, he has right to legal representation when the govt interrogates him
When a police informant elicits info from D in absence of dfense counsel, this violates 6th Am right to counsel (even if D gave information voluntarily)

This is MESSIAH rule
MIRANDA applies only to

Once D is in police custody, must be advised of Miranda warnings (only the D in custody must be warned)
MIRANDA does not apply to
spontaneous, unsolicited confessions (i.e. when D blurts otu incriminating statements or voluntairly confesses without prodding)
MASSIAH rule applies to
POST-INDICTMENT interrogation

D has right ot counsel when police seek to interrogate him or interrogation by police information or when interrogation results when police or its informants seek to eleicit incrimianting statemetns from the D
HOFFA rule applies to...
Where D not in police custody, where govt did not plant or encourae informant to interrogate or elicit incriminating info, eavesdropping committed by D's "friend" who later voluntered to become an informer

Eavesdropping is permissible b/c no right to prtoect misplaced confidences

Each party to conversation must assume risk that the other will reveal substance of conversation
A search made udner authority of search warrant may extend to entire area covered by the warrant's description
For ex, if warrant authorizes a search of premises at a certain described location, search may extend to those buildings within curtilage and theyard within curtilage
The PERMISSIBLE INTENSITY of a search under warrant determiend by...
description of things to be seized
Search warant for certain location to get a stolen Yahama stereo. POlice arrived at D's dwelling, showed himt he warrant. In living room, found a Sanyo stereo w/ serial # removed from another store robbery. Also found a Marantz stereo in D's second floor bedroom taht was stolen too. The Yahama was found in the basement.

D moves to suppress introduction fo the stereos. Which ones would the motion be gratned to?
The Marantz and Sanyo stereo, but not the Yamaha stereo.

The plain view doctrine didnt apply to the Sanyo stereo which was found in living room - legitiamte only where it is IMMEDIATELY APPARENT TO THE POLICE THA THEY HAVE EVIDENCE BEFORE THEM (can't be used to extend a eneral exploratory search from 1 object to another). Sanyo unlawfully seized since police needed to "further inspect" to see if it was stolen (had to look at the serial number)

As to the Marantz, had no authority to continue to search D's home AFTER the discovered the stolen Yahama stereo specified in the warrant.

When purposes of warrant carried out, authority to search ENDS.
D on trial for murder. Pros calls W - a police detective - who testified that D declared innocence and at first wanted to take a ie detector test. But when it was time to take the test, D refused. D's attorney didnt object to W's testimony.
On appeal by D's new atty, this was only PLAIN ERROR b/c trial court should've acted on own motion to order reference to lie detector test stricken.
To plead insanity, D has burden of...
PRODUCTION in proving his insanity at time of offense
Court permitted psychiatrist who examined D to determine competency to stand trial and testify about alibi related to him y D. Even where there was no timely objection is made...
if there is grave injustice might result from serious trial error, appellate court will order new trial.
If after being given Miranda warnings, D in back of police car makes an incriminating statement that is spontaneous or not necessarily in response to polie officer's remarks (no questioning)
State's best rebuttal to D's argument that illegal seizure of gun (which he incrimianted himself by telling police location of gun) is that D was not being interrogated in police car when he revealed location fo gun to police officer.

The D was advised of his Miranda rights and refused to make any statements w/o atty present. Nor was he questioned or interrogated durin ide to police station. Acted voluntarily.
Interrogation under Miranda refers not only to express questioning but also to
any words or actions on part of police that the police should know or should've known are reasonably likely to elicit an incriminating response from the suspect
Appearing in line up and being required to make statements during line up procedure are...
NOT testimonial activities, but demonstrative in nature. Thus no right to 5th Am self incrimination privilege to refuse to appear or make a statement during a line up.
Dual representation of 2 Ds might create conflict of interest that violates a D's riht to counsel
Multiple representation does not violate 6th Amendment unless it gives rise to a conflict of interest. Thus, a D who objects to it must show potential conflict which affects his right to fair trial.

If 1 D makes an incrimianting statement implicating another D at trial, this is sufficient for court o inquire as to whether or not conlict existed over dual representation.

Trial ourt has duty to inquire whether there was conflict of interest.

While arguing that an impermissible conflic to finterest arises, better to argue that a D's 6th Am right to counsel was violated
A D who knowingly, intelligently waives his right to counsel...
has right to proceed pro se and court cannot force counsel to represent unless there is evidence the D was incompetent (to stand trial)

D also cant be required to reimburse state for his lawyer fes since counsel was imposed upon him in violation of his rights. But state can recover legal costs from an indigent who is convicted and subsequently able to pay.
Where statute of crime requires not merely conduct, but also a specified result of conduct...
D's conduct must be the legal or proximate cuase of death.

Best answer will be one that refers to requirement of a "causal connection" which is a material element.
Statute says: "When the act of killing another is proved, male shall be presumed and burden shall rest upon the party who committed the killing to show that malice did not exist."

If D is convicted of 1st degree murder on this statute, result?
Win - statute violates DUE PROCESS b/c it put burden on the DEFENDANT to prove or disprove element of malice.

Due Process protects accused in criminal case against conviction except upon proof BEYOND REASONABLE DOUBT.
For consent search to be valid, 3 factors to be considered
1. Person consenting must have actual or apparent authroity to consent
2. Her consent to search is voluntary and
3. Police may not exceed search into areas for which consent has not been given.
When an INFORMANT provides info to be uses in an affidavit to provide infromation (such as an informnt who had given reliable info many times in the past to polie officer)
Must have (1) probable cause fo rissuing the warrant as well as (2) reliability of the informant.

Maybe also a totality of the circumstances test to see whether fair probability or substantial basis to conclude.

Fact that informant saw D sell heroin TWO MONTHS AGO is too remote in time to justify present finding of probable cause.
Reliability of the informantion WITHOUT PROBABLE CAUSE to search
INSUFFICENT basis to issue a warrnat
5th and 14th Am forbids either comment by the prosecution of...
an accused's silence or instructions b court that such silence is evidence of guilt.

Comments by prosecution during closing argument that D failed to take sttand violates right against self incrimiantion.
D1 and D2 in custody in separate jail cells for robbery charges. Police detective interrogates D2 in his cell and told D2 if he cooperated, prosecutor would drop charges against him. D2 confessed and implicated D1 and told where D1 hid stolen property.

Police then got the stolen property. Then went to D1's cell and showed him the property they recovered. Also told D1 that D2 confessed and implicated him and D1 then confesses.
Confession can be excluded, but the necklace won't be excluded.
Conspirator does not have automatic standing to challenge seizure of illegally obtained evidence from a co-conspirator
No necessity to exclude evidence against one D to protect rights of other D