Criminal Pro Bar

Front 1

Exclusionary Rule

Back 1

-prohibits intro of ev obtained in violation of 4/5/6th Am rights. In admissible at trial and all FOPT must also be excluded, unless exception.
-can use for impeachment of D

-Defense: no ER where cops rely in good faith reliance on either- judicial opinion later changed by other opinion, stat/ordinance later declared UNCON, or a defective search W.
-EXCEPTIONS to GF Defense:
a) Affidavit for W so lacking PC no cop would reas rely on it.
b) W invalid on its face: fails to state w/articularity the place + things to be searched.
c) Cop lied/misled the magistrate
d) Magistrate has wholly abandoned his judicial role.

Front 2

Fruit of the Poisonous Tree

Back 2

-expands ER by also excluding all ev derived from exploitation of the violation.

-EXCEPTIONS to FOPT
a) Independent Source
b) Inevitable Discovery
c) Intervening Acts of Free Will on D's part.

Front 3

Arrest W: 4th Am

Back 3

-need PC
-Public Place: arrest W generally not req
-Non-emergency arrest in house: req arrest W
-Stationhouse detention: need PC to arrest you if hauling to station for interrogation/fingerprints

Front 4

Search & Seizure 4th Am Analysis

Back 4

1) Govt conduct (publicly paid police, etc.)
2) Reas expectation of privacy
3) Standing
4) Search W: have it? valid? if invalid, GF defense?
5) Exception to Search W req
6) Admin inspection/search
7) Search in foreign country/border
8) Wiretapping & Eavesdropping: req W (active ear principle)

Front 5

Standing for challenging 4th Am S&S

Back 5

-Can't challenge search W if no standing.

EXCEPTIONS:
-own/live on premises searched
-overnight guests
-legit present where search takes place (not there to deal drugs) unless car passenger
-own prop seized (my photos)

Front 6

Valid Search W

Back 6

1) PC:
-HS: ok
-informants: common sense evaluation of PC, despite anonymous tip
-W based on afidvait invalid IF: false statement, intentionally/recklessly included, + material to PC. UNLESS GF reas reliance on facially valid W
2) W precise on its face: places searched + things seized
3) Neutral & Detached magistrate

- 3P premises
- W Execution: only police execute W, w/o unreas delay, knock + announce purpose, wait reas time (unless exceptions). Doesn't mean exclusion of otherwise valid search.

Front 7

Exceptions to Search W req

Back 7

1) Search incident to lawful arrest
2) Automobile Exception
3) Plain View
4) Consent
5) Stop & Frisk: reas suspicion
6) Hot Pursuit in emergencies

Front 8

Miranda Warnings

Back 8

1) Warnings:
-remain silent
-anything said can be used vs. you
-right to atty
-if can't afford atty, ct will appoint one
-can stop interrogation at any time

2) When req:
a) Custody (not free to leave)
b) Interrogation: any conduct where cops knew/should've known they'd get damaging statement (> just questions)

3) Waiver: knowing, voluntary, + intelligent (not silence/shrugging)

4) Public Safety exception

Front 9

5th Am Right to Counsel: need help w/police procedures

Back 9

1) Re-initiating Interrogation: if terminate interrogation and request atty, re-initiation of interrogation by police w/o atty present violates 5th Am RTC.

2) Difference w/6th Am RTC:
-NOT offense-specific, whereas 6th Am RTC is offense-specific: Atty only needs be present at interrogation if D asked about case Atty involved in)

Front 10

5th Am protection from Self-Incrimination

Back 10

1)
-any person asked
-under oath
-any type of case
-where answer might end to incriminate themselves

2) Scope: compelled testimony, not body fluids/hair

3) 1st time Rule: must assert 5th Am the 1st time Q asked

4) P Limits: UNCON for P to make negative comment on person's failure to testify/silence in face of Miranda

5) Eliminated in 3 ways:
a) Immunity granted
b) No possibility of incrimination (SOL, etc.)
c) Waiver: D waives by taking the Wit stand

Front 11

Double Jeopardy

Back 11

-can't be tried a 2nd time for an offense for which you've already been acquitted.
-"offense": not same offense if each crime req proof of an add'l element the other crime doesn't, UNLESS battery-dies-M

-Test: jury trial (jury sworn) or judge trial (1st Wit sworn), NOT civil

EXCEPTIONS permitting re-trial
-Jury unable to agree verdict (unanimous)
-Mistrials for manifest necessity (appendicitis)
-Retrial after successful appeal
-Breach of agreed-upon plea bargain by D
-*Separate Sovereigns (state/fed, state1/state2): can prosecute for same ev.

Front 12

6th Am Right to Counsel

Back 12

- Offense-specific

-Ineffective Assistance of Counsel: must show both
a) deficient perf by counsel, +
b) but for deficiency, result would've been different.

Front 13

6th Am Right to Jury Trial

Back 13

1) Grand Juries (jxnal): secret. if no g.j., then "info" signed by P saying charge sufficient.

2) Right to Unbiased Judge
3) Jury Trial Right: attaches when offense has max penalty or aggregate > 6 mths
4) Juries: 6-12.
-If 6, unanimous.
-Cross-sectional req: right to jury pool reflecting fair cross-section of community.
-Perumptory challenges on race/gender are UNCON.

5) Guilty Pleas & Plea-Bargains: waiver of right to jury trial.
-Voluntary: 3 reqs- judge must personaly address D re: nature of charge, max authorized penalty & mandatory min penalty, + advise right to trial. If 1 of 3 missing, D can withdrawal & re-plead.

-Collateral Attacks on guilty pleas post-sentencing: 4 basis for withdrawing plea post-sentencing:
a) Involuntary Plea
b) Ct lacked jxn
c) Ineffective Assistance of Counsel
d) Failure of P to keep agreed-upon plea-bargain.

Front 14

8th Am Cruel & Unusual Punishment (death penalty)

Back 14

4 Sentences
1) Any Deaht Penalty statute that doesn't give D chance to present mitigating facts/circum's is UNCON.
2) State may not limit the mitigating factors by statute; Law UNCON unless all relevant mitigating ev is admissible.
3) No Automatic category for imposition of death penalty (kill a cop)
4) Only Jury, not Judge, may det. aggravating factors justifying imposition of death penalty.

Front 15

14th Am DP, Pre-Trial ID

Back 15

1) attack right to counsel for help w/police procedures as a denial of DP.
a) Lineups, not photos, is right to counsel.

2) ID violates DP: unnecessarily suggestive and sub. likelihood of mis-ID.

3) Remedy: exclude in-ct ID. BUT- state can defeat remedy thru either Waiver by D or Adequate Independent Source (ID D from time of crime, not lineup, b/c of ample time)