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42 Cards in this Set
- Front
- Back
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When is a person under
arrest? |
A person is under arrest when he is taken into
custody for the purpose of commencing a criminal action. |
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When is a person in
custody? |
A person is in custody when he is in the presence
of a law enforcement officer and is not free to leave. The detainee's belief is key to a determination of whether or not he is in custody. |
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When may a person be
arrested in his home? |
Generally, the police need a warrant to arrest a
person in his home. Payton v. New York, 445 U.S. 573 (1980). However, there are several exceptions to this rule. |
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When may the police
arrest a person in a public place? |
Police need not obtain an arrest warrant
before making an arrest in a public place, even if there is time to get a warrant. |
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Describe when the police
may lawfully detain an individual. |
Police may detain a person or the occupants
of a vehicle for questioning where, on the basis of specific, articulable facts, they have a reasonable suspicion that (1) criminal activity may be afoot, or (2) the detainee has previously committed a crime (U.S. v. Hensley). Furthermore, pursuant to a valid search warrant, police may detain occupants of premises at which a search is being conducted, even though neither probable cause nor a reasonable basis for believing that those persons have engaged in criminal activity exists |
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When is a vehicle stop
permissible? |
Police officers may not randomly stop a vehicle
to check license and registration without a reasonable suspicion of wrongdoing. Such a stop is unreasonable because it places too much discretion in the police officer. Delaware v. Prouse, 440 U.S. 468 (1979). Where there is a fixed checkpoint (e.g., near a border), police must have probable cause to search a vehicle. United States v. Martinez-Fuerte, 428 U.S. 543 (1976). Furthermore, police may not order a driver out of her car absent a lawful detention. Pennsylvania v. Mimms, 434 U.S. 106 (1978). |
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Is probable cause
required for an arrest? |
Yes. Whether an arrest is made with or without
a warrant, the police must have probable cause at the time of the arrest. A reasonably prudent man must believe that the defendant had committed or was committing an offense. |
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Describe the "standing"
requirement which is necessary to assert unlawful governmental conduct. |
To have standing to object to an allegedly illegal
search or seizure, an accused must have had a reasonable expectation of privacy in the area searched or items seized. |
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What is the exclusionary
rule? |
Under the exclusionary rule, evidence of all
materials seized in violation of the 4th Amendment is inadmissible in a criminal proceeding. This rule applies to the federal government and to the states. Mapp v. Ohio, 367 U.S. 643 (1961). In addition to excluding all evidence which has been illegally obtained, the rule requires the exclusion of any additional evidence (including oral statements and physical objects) acquired either directly or indirectly from the illegal arrest, search or seizure. Such evidence is often referred to as the "fruits of the poisonous tree." |
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What are the exceptions to
the exclusionary rule? |
There are several exceptions to the exclusionary
rule. 1) A witness' in-court identification of the defendant may not be excluded as a fruit of an unlawful detention where the victim's knowledge of the defendant's identity was acquired prior to the illegal arrest. 2) The exclusionary rule does not apply to grand jury proceedings. 3) Evidence illegally seized in one sovereign may be used in the civil proceedings of another sovereign. 4) Evidence obtained in violation of the 4th, 5th or 6th Amendments may be used to impeach testimony given on direct or cross-examination. confession obtained without affording Miranda warnings—unless it is coerced or immunized— may be used to impeach a defendant's testimony. |
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When does a person
have a reasonable exception of privacy? |
To demonstrate a reasonable expectation of
privacy, a person must have standing and be able to show that the objects seized are not held out of the public. To establish standing, a defendant must show that his own rights were violated (not those of another person) and that he has an ownership or possessory interest in the premises searched. |
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Describe the requirements
for issuance of a valid search warrant. |
To be valid, a search warrant must: (1) be
issued by a neutral and detached judicial officer, (2) be based upon probable cause (i.e., under the totality of the circumstances, it is more probable than not that indicia of criminal activity will be found at the area to be searched), (3) identify, as precisely as possible, the area to be searched and property to be seized, and (4) be limited in duration (i.e., usually, the search must be attempted within ten days after the warrant is issued). |
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What is the "plain view"
exception to the warrant requirement? |
For the police to seize evidence without a
warrant, they must be lawfully positioned, and it must be immediately apparent that the evidence is incriminating. |
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What is the automobile
exception to the warrant requirement? |
If probable cause justifies the search of a lawfully
stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search. |
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Describe the "exigent
circumstances" exception to the usual requirement of a warrant for searches and seizures of an individual's property. |
Where it is likely that (1) unless the police act
immediately, evidence might be lost or destroyed, or (2) someone might be harmed, a warrantless search or seizure may be made by the police. |
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Describe the "inventory
search" exception to the rule requiring a warrant for searches or seizures of an individual's property. |
When a validly arrested individual is formally
incarcerated (i.e., booked), or within a reasonable time thereafter (provided there is a legitimate reason for the delay), the police may make a full inventory search of his person and clothes (Illinois v. Lafayette). |
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Describe the "search
incident to a valid arrest" exception to the rule requiring a warrant for searches or seizures of an individual's property. |
Pursuant to a valid arrest, police may make a
full search of the area within the arrestee's immediate control (Chime! v. California). The search must ordinarily be conducted contemporaneously with the arrest. However, a subsequent search may be valid under the "inventory" exception. |
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When may a warrant be
based on an informant's tip? |
Probable cause must be established under the
"totality of the circumstances." The court takes into account whether the following factors are satisfied: a) credible information; b) reliable informant; c) police corroboration; d) declaration against interest. |
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What is a protective
sweep? |
A protective sweep is permissible when a lawful
arrest has taken place and the police conduct a cursory scan of adjoining rooms, or if there is a reasonable belief that an accomplice is present who poses a danger to the police, of the entire domicile. |
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When may a third party
consent to a search? |
Any person who has joint control or use of the
premises may consent to a valid search, and any evidence obtained may be used against the other occupants. Such consent applies to common area, but not to private, reserved areas where the defendant has exclusive control. |
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When is wiretapping permissible
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Wiretapping is permissible only after a warrant
has been issued. Furthermore, three requirements must be satisified: 1) Probable cause must be shown that a crime has been or is being committed; 2) The warrant must name the suspect as well as describe the particular conversation to be overheard; 3) The wiretap must be valid only for a brief period, after which time it will be terminated and the recorded conversations returned before the court. |
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Describe the Miranda
rule. |
If adequate Miranda warnings are not given
prior to a custodial interrogation, incriminating statements (even though voluntary) made by the accused are ordinarily inadmissible on the prosecution's case-in-chief. A voluntary confession obtained in violation of an accused's rights to adequate Miranda warnings may, however, be used to impeach him if he testifies at trial |
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Describe the
"interrogation" element of the Miranda rule. |
Inquiries, statements or conduct by police officers
which, in light of the suspect's character, are reasonably calculated to elicit an incriminating response constitute an interrogation for purposes of the Miranda rule. |
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Describe the "public
safety" exception to the Miranda rule. |
Evidence derived from a custodial interrogation
is admissible, even in the absence of prior Miranda warnings, if (1) it was voluntarily given, and (2) a risk to the public's safety existed at the time of the questioning |
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When Can Miranda Rights Be Revoked
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Once Miranda rights
are invoked (i.e., the suspect indicates that she does not want to answer any questions), interrogation must cease. However, if the suspect (1) initiates subsequent discussions with the police, (2) adequate Miranda warnings are reiterated, and (3) no intervening interrogation occurred, the earlier invocation of Miranda rights is waived |
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When must an
interrogation cease? |
An interrogation must cease when a defendant
either requests an attorney or states that she wishes to remain silent. |
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When can an interrogation resume/
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An interrogation may
resume when a significant amount of time has lapsed and the questioning is about an unrelated crime (provided a new set of warnings is given), where a requested attorney is furnished, or where a defendant voluntarily initiates a discussion |
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Describe the reliability
standard used for identifications. |
Where an identification is both suggestive and
unnecessary, it can still be admissible if it is reliably based on a "totality of the circumstances." Manson v. Brathwaite, 432 U.S. 98 (1977). The following factors are considered: 1) the opportunity to view the criminal at the scene; 2) the witness' degree of attention; 3) the accuracy of the witness' descriptions; 4) the degree of certainty of the witness; and 5) the time interval between the crime and identification. |
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What is a preliminary
hearing? |
A preliminary hearing is an adversarial proceeding
used to determine probable cause to prosecute. Presentation is allowed by both sides, and the defendant may assert any of her defenses. The preliminary hearing is essentially a mini-trial with witnesses testifying and being cross-examined. The defendant has a right to counsel |
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What is an indictment?
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An indictment is a written accusation of
charges against the defendant which a grand jury reviews to determine if the prosecution's evidence justifies a trial. Upon indictment, the prosecutor decides whether or not to prosecute. |
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Describe the
characteristics of grand jury hearings. |
There are 8 key characteristics of grand jury
proceedings: 1) Proceedings are conducted in secret, and the defendant has no right to be present. 2) The defendant may not present or confront witnesses or introduce evidence. 3) A grand jury witness has no right to counsel (except for consultation outside the grand jury room). 4) Miranda warnings are not required, but a witness is still subject to penalty of perjury. 5) A grand jury indictment may be based on illegally seized or hearsay evidence. 6) In federal court, the accused can waive a grand jury hearing except in capital offenses. 7) An accused may not challenge a grand jury for lack of probable cause. 8) However, if the jury pool was selected in a racially discriminatory manner, reversal of a subsequent conviction is the proper course |
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Describe the Fifth
Amendment prohibition against self-incrimination. |
The Fifth Amendment (applicable to the states
via the Fourteenth Amendment) precludes a person from being compelled to make incriminatory statements of a testimonial nature about herself. |
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Describe the 6th
Amendment right to a speedy trial. |
The 6th Amendment guarantees a criminal
defendant the right to a speedy trial. This guarantee has been made applicable to the states. Violation of this right results in a complete dismissal of the charges against the defendant |
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To what stages of a
proceeding does the 6th Amendment right to counsel apply? |
The 6th Amendment right to counsel only
applies in the "critical stages" of a criminal proceeding, i.e., during custodial interrogations, at post-indictment lineups, at preliminary hearings, during arraignment, at felony trials, at misdemeanor trials where imprisonment is actually imposed, at sentencing hearings, and where a defendant has an appeal as a matter of right. |
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When may a defendant
waive his/her 6th Amendment right to counsel? |
A defendant may waive the right to counsel
where she does so knowingly and intelligently in the opinion of the court. |
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What is the test for ineffective assistance of counsel
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The test employs two factors that a
court must consider when deciding a claim of ineffective assistance of counsel. 1) Counsel was ineffective (i.e., counsel deviated from reasonably prevailing norms); and 2) there is a reasonable probability that, with effective counsel, the verdict would have been "not guilty." |
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When does a defendant
have a 6th Amendment right to confront witnesses against him? |
The right applies to both the federal government
and the states. The defendant may forfeit or waive the right to be present at his trial by behaving badly in the courtroom or by failing to appear If two or more persons are tried together and an earlier confession by one implicates another, the former's statement may not be introduced in a joint trial if the defendant who made the statement refuses to testify (even though the jury is advised to disregard the statement vis-a-vis the non-confessing party). |
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What is the Burton Rule
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ANSWER
In a joint trial where a co-defendant's confession implicates the other defendant, the right to confrontation prohibits the use of such a confession and the defendants are entitled to separate trials. |
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Describe the Eighth
Amendment prohibition against cruel and unusual punishment. |
The Eighth Amendment prohibition against
cruel and unusual treatment precludes punishment which is (1) "inherently cruel and unusual," or (2) grossly disproportionate to the crime. It is cruel and unusual treatment to punish an individual for a mere "status |
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What procedural
safeguards are required in capital punishment cases? |
1) Bifurcated trial (one jury decides guilt,
another sentences); 2) Aggravating factors (prosecution must present evidence that aggravating factors were present); 3) Mitigating factors (the court must review mitigating factors before imposing the death penalty); 4) Verdict on lesser-included offense permitted (jury must be able to return a verdict of guilty to a lesser included offense). |
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Describe the interaction of
Double Jeopardy and the doctrine of collateral estoppel. |
Double Jeopardy encompasses the doctrine of
collateral estoppel. Thus, one may not be tried for a crime where a prior prosecution by that sovereign was unsuccessful as the result of a factual determination which would inevitably arise in the subsequent trial (Ashe v. Swenson). |
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Describe the "harmless
error" doctrine. |
Reversal of a conviction will occur unless the
prosecution can show, beyond a reasonable doubt, that admission of unlawfully obtained evidence did not contribute to the judgment (i.e., the error was harmless). |
