Criminal Procedure

Front 1

What is the exclusionary rule?

Back 1

A remedy whereby a victim of illegal search/coerced confession can have product of it excluded from criminal prosecution

Front 2

what limitations are there to the exclusionary rule?

Back 2

grand jury, civil proceedings, parole revocation,

Front 3

what must have been violated for the exclusionary rule to apply?

Back 3

Federal constitution or statute

Front 4

Can excluded evidence be used for impeachment purposes?

Back 4

yes, against defendant only. NOT other witnesses

Front 5

Does Exclusion apply to "Knock and Announce" (K&A) evidence?

Back 5

Exclusion not avail. for violations of K&A if RSB believed would be futile, dangerous, or inhibit search

Front 6

What is the Fruit of the Poisonous Tree Doctrine?

Back 6

Doctrine that excludes not only illegally obtained evidence but also all other evidence obtained or derived from police illegality

Front 7

3 ways gov can breach the chain b/t unlawful police action and derived evidence

Back 7

The 3 I's
1- independant source
2- inevitable discovery
3- interveining acts of freewill

Front 8

What is independent source?

Back 8

A source that is independent of the original police illegality where police could have gotten evidence

Front 9

what is covered by the 4th amendment?

Back 9

Search and Seizure

Front 10

analysis steps for 4th amendment search and siezure are?

Back 10

Gov conduct?; RSB expectation of privacy?; valid search warrant?; good faith defense?; exceptions to warrant requirement?;

Front 11

can a private person act to constitute gov conduct?

Back 11

yes, if acting at the direction of public police

Front 12

Are private paid police gov actors?

Back 12

not unless they are deputized with the power to arrest

Front 13

What do you need to have standing under the 4th amendment?

Back 13

standing, which you get from a RSB expectation of privacy

Front 14

Automatic category of standing under 4th amend?

Back 14

own the premises; live on the premises; invited overnight guests

Front 15

If you own an item or are a passenger in a car do you have standing?

Back 15

own item- if rsb expectation of priv in item or area searched; passengers-no

Front 16

what is the open feilds doctrine?

Back 16

anything that can be seen across the open feilds = no rsb expectation of priv

Front 17

do you have a rsb expectation of privacy in your garbage?

Back 17

no

Front 18

what are the requirements to a valid search warrant?

Back 18

Probable Cause and Particularity

Front 19

What does probable cause mean?

Back 19

a fair probability that contraband or evidence will be found in the area searched

Front 20

What does particularity mean?

Back 20

a warrant must state with particularity the place to be searched and the things to be seized.

Front 21

does an officer's good faith reliance on a search warrant overcome defects with PC or particularity in warrant

Back 21

Yes, unless exceptions apply

Front 22

what are the exceptions to the officer's good faith reliance to save a defective search warrant?

Back 22

underlying affidavit so lacking in PC or Particularity no RSB police would rely; police/prosecut lied to mag jdg; mag jdg = biased

Front 23

what are the exceptions to warrant requirement?

Back 23

search incident to arrest; automobile exception; Plain view; consent; Terry stop; hot pursuit/evanescent evidence

Front 24

what are the requirement for a search incident to arrest?

Back 24

lawful arrest; contemporaneous with arrest; wingspan for weapons/evidence; wingspan in car is entire interior not trunk

Front 25

What is the automobile exception?

Back 25

must have PC; then search entire car and trunk including containers RSB could contain item

Front 26

what is the requirement for plain view?

Back 26

the police must have legitimately been present to see the item in plain view

Front 27

what is a terry stop?

Back 27

a breif detention for purpose of investigating suspicious conduct; RSB suspicion standard; check for weapons for officer safetly

Front 28

what is hot pursuit and evanescence?

Back 28

evanescent- might disappear if police took time to get warrant; hot pursuit of fleeing felon = 15 mins behind

Front 29

does wiretapping and eavesdropping require a warrant?

Back 29

yes, except when you say something to another person who is working for gov (unreliable ear)

Front 30

What are the miranda rights?

Back 30

remain silent; anythig said used against you; right to attorney; terminate interrogation

Front 31

what triggers Miranda warnings?

Back 31

custodial interrogations

Front 32

What is deemed in custody for mirand?

Back 32

not free to leave; objecive standard (not traffic stops or probation interviews)

Front 33

when is someone being interrogated?

Back 33

conduct where police know or should know they might elicit incriminating response; not spontaneous statements

Front 34

what must Defendant do to waive miranda rights?

Back 34

Defendant must make the waiver knowing, voluntary, and intelligent

Front 35

What if the D asserts right to terminate interrogation and requests attorney, but then questioned w/o attorney present?

Back 35

5th amendment right to counsel is triggered

Front 36

Is the fifth amendment right to counsel offense specific?

Back 36

NO, but the 6th amendment right to attorney is

Front 37

What is 6th amendment right to attorney?

Back 37

any other time other than miranda warnings, therefore can questions about unrelated offenses

Front 38

When are bail issues appealable?

Back 38

immediately

Front 39

Does exclusion and right to appear/offer witenesses apply to grand jury proceedings?

Back 39

NO, can have illegally seized evidence also

Front 40

When does a D have a right to a jury trial?

Back 40

If max sentence exceeds 6/mos; min jurors required is 6- unanimous; but some 10-2 & 9-3 have been deemed unanimous

Front 41

Does the jury have to reflect a fair cross section of the community?

Back 41

the jury pool must, but the empaneled jury doesn't have to

Front 42

when can you use a preemptory challenge?

Back 42

any reason except if it is unconstitutional = race or gender

Front 43

What is the rule for ineffective assistance of counsel?

Back 43

there must be deficient performance by counsel and but for it result wold have been different

Front 44

Will the Supreme Court disturb guilty pleas after sentencing?

Back 44

No, they have adopted K theory of plea bargaining

Front 45

Can there be an automatic category for imposing the death penalty in a statute?

Back 45

no, also no state that doesn't give D a chance to present mitigating facts/circumstances is unconst.

Front 46

when does DBL Jeopardy attach

Back 46

jury trial- jury sworn; bench- 1st witness sworn

Front 47

What is the effect of a breach of an agreed upon plea bargain by D on dbl jeopardy?

Back 47

sentence can be withrawn and original charges reinstated

Front 48

What differentiates crimes for dbl jeopardy?

Back 48

an additional element, but for included offenses (up or down) bars retrial

Front 49

If victim of battery later dies can you be tried for murder?

Back 49

yes, exception to the rule

Front 50

Is a state precluded from trying someone for a crime that he's been tried in fed court for?

Back 50

Not precluded, bc dbl jeopardy bars retrial for same offense by same soveriegn

Front 51

When can 5th amendment protection against self incrimination be asserted

Back 51

any type of trial, anyone asked question under oath where response might incriminate is entitled to 5th amendment

Front 52

Must you assert the privilege and what is the consequences of not asserting it?

Back 52

waived, even if at an earlier civil trial

Front 53

what does the 5th amendment protect against?

Back 53

compelled testimony, not hair or blood samples

Front 54

can prosecutor make a negative comment on D's remaining silent?

Back 54

NO

Front 55

how can 5th priviledge be eliminated?

Back 55

grant of immunity, no possibility of incrimination (SOL run); waiver;