Criminal Procedure

Front 1

Arrest

Back 1

The Fourth Amendment provides the right to be free from unreasonable arrest.

**Must be based on probable cause

NO WARRANT REQUIREMENT!

Front 2

Probable Cause
(To Arrest)

Back 2

Reasonable grounds for believe that a crime has been committed and the suspect committed the crime

Front 3

Warrantless Arrests

Back 3

There must be a prompt determination of probable cause by a judicial officer, generally within 48 hours or less

Front 4

Misdemeanor Warrant

Back 4

(common law and MS law)

Warrant is generally required for a misdemeanor not committed in the officer's presence.

Front 5

Special MS Arrest Law

Back 5

**Officer can make misdemeanor arrest without a warrant in domestic violence cases

**Private person can make arrest, but must have waarrant for misdemeanor and probable cause for felony

Front 6

Search and Seizure

Back 6

4th Amendment provides the right to be free from unreasonable searches and seizures

Front 7

When is a search and seizure unreasonable?

Back 7

(1) Fourth Amendment must apply

(2) Was there a valid warrant?

(3) If not valid, was there an exception?

Front 8

Applicability of 4th Amendment

Back 8

**Protects from governmental intrusions

**Protects from searches into areas were a person has a reasonable expectation of privacy (must have ownership or possessory interest)

MS: very protective of personal living space even if it's someone else's home.

Front 9

Intrusion

Back 9

****Dog sniff is not an intrusion


Kylo case: high tech equipment seeking heat from a home is unreasonable

When an officer stops a car, orders person fleeing to stop, and then pursues the person, these actions do not constitute a seizure.

Front 10

Requirements for a Valid Warrant

Back 10

(1) Based on probable cause

(2) Issued be a proper magistrate

(3) Reasonably describe the place to be searched and the items to be seized.

Front 11

Probable Cause
(To Search)

Back 11

Reasonable grounds to believe a legitimate item for seizure is located in a particular place

Gates Test: PC is determined by the totality of the circumstances

Front 12

Proper Magistrate

Back 12

Must be neutral and detached.

MS=SAME +
(1) Must be independent
(2) Not a rubber stamp for police

Front 13

Execution of Warrant

Back 13

**Must be reasonable

**Determined case by case based on totality of the circumstances.

Ex) Knock and Announce

BUT even if violation of execution, evidence will not be excluded via the exclusionary rule

Front 14

Exceptions of Warrant Requirement

Back 14

(1) Search Incident to Arrest

(2) Auto Exception

(3) Consent

(4) Plain View

(5) Administrative Searches/Inspections/Inventories

(6) De Minimus Intrusions

(7) Exigent Circumstances

(8)Special Needs

Front 15

Search Incident to Arrest

Back 15

Regardless of nature of offense or threat to police.

**Must be arrest, not just a citation

**Search limited to area in immediate control of the defendant

"wingspan"

Front 16

Arizona v. Gant

Back 16

If arrestee driver or passenger of car, police may search passenger compartment if:

(1) Driver/passenger has access to interior due to safety concern (ex weapons)

OR

(2) Police have reason to believe there may be evidence in the car

Front 17

Automobile Exception

Back 17

PC justifies a search of a car without a warrant

-Search extends to entire car

-Exception is based on mobility of vehicle and a reduced expectation of privacy.

MS=Same, but case law suggest that warrant should be attempted

Front 18

Consent Exception

Back 18

If a person consents to the search, no warrant or finding of probable cause is required.

*Must be voluntary (Test: Totality of the Circumstances)

*Person must have authority normally established by ownership or a possessory interest.

**BUT, as long as police reasonably believe the person has authority.

**Search cannot exceed scope

Front 19

MS: Consent Exception
"Penick Rule"

Back 19

Effective Consent:

Must have knowledge of the right to refuse.

(recent: knowledge can be implied)

Front 20

Plain View Doctrine

Back 20

Key: Are the police lawfully present under any theory?

If lawfully present, the police may seize anything in plain view.

Front 21

Administrative Search Exception

Back 21

Require less stringent showing of probable cause as long as specific objective is not to search of evidence of criminal activity.

Front 22

Administrative Inspection Exception

Back 22

Valid if part of a regular inspection program and conducted pursuant to a plan

Front 23

Inventory Search Exception

Back 23

Valid if standard procedure to conduct.

**MS law is the same!

(a) auto checkpoint
(b) impounded car
(c) pervasively regulated industries

Front 24

Inventory Search: auto checkpoint

Back 24

Constitutional is purpose is related to highway safety and proper procedure for stopping cars.

If purpose is to uncover evidence of general criminal activity, must be based upon probable cause.

MS: applies same test and has upheld checkpoints to check drivers licenses.

Front 25

De Minimus Intrusions

Back 25

If police are making a very limited intrusion into a person's privacy, neither probable cause nor a warrant is required.

**Reasonable Suspicion is required.

Ex: Stop and Frisk

Reasonable suspicion is required for search of probationer's home if potential search is a condition of probation.

Front 26

Exigent/Emergency Circumstances

Back 26

No warrant is required for a search conduct as a result of a "hot pursuit" or if evidence is likely to disappear

Front 27

Special Needs

Back 27

Circumstances where state's need for search (beyond normal law enforcement needs) outweighs limited intrusion into reduced expectation of privacy

TEST: Reasonable under the circumstances

EX. Drug testing cases (high school athletes/transportation employees/customs employees)

Front 28

Remedy for Illegal Search

Back 28

Exclude unconsitutionally seized items at trial

This is the EXCLUSIONARY RULE

Front 29

Limitations on Exclusionary Rule

Back 29

(1) Does not apply to grand jury proceedings

(2) Does not apply in civil cases, even if government is a party (Except: civil forfeiture cases)

(3) Impeachment (D cannot take the stand and lie)

(4) Under Fruit of the Poisonous Tree doctrine, evidence derived from illegally obtained evidence is tainted and cannot be admitted EXCEPT WHEN
(a) The evidence was obtained through an independent source.
(b) The evidence would have been inevitable discovery.
(c) The evidence is a live witness.
[Note: Fruit doctrine does not apply to Miranda violations]

(5) Police acting pursuant to what the police believe in good faith is a valid warrant--if later found invalid, any evidence will be admitted. (MS, too)

Front 30

Confessions

Back 30

Generally admissible

EXCEPT

When there is a constitutional violation
(1) Voluntary
(2) Miranda
(3) Right to Counsel

Front 31

Voluntariness

Back 31

If involuntary, it is a violation of the 5th and 14th Amendment.

TEST: Totality of the Circumstances

**Cannot be used to impeach the D.

MS: if D offers evidence suggesting involuntariness, state must offer evidence to establish voluntariness beyond a reasonable doubt known as the A.G.E. Rule.

Front 32

Miranda

Back 32

(1) Warning before interrogation

AND

(2) How the government must treat the D in light of his response to the warning.

Front 33

Miranda: Warning

Back 33

*Key is timing--required prior to a custodial interrogation

(1) Custody: when a reasonable person would conclude they are not free to leave
(2) Interrogation: words or actions by police which police should know are likely to produce an incriminating response.

**Warning may not be required when public safety at stake.

**If warning are required and not given, remedy is exclusion of confession.

Front 34

Miranda: D's Response to Warning

Back 34

**If D invokes rights in reponse to the warnings, all interrogation must cease

**D, however, may waive rights after warning, or even after rights have been invoked.

Ex) D blurts out--waiver

Ex) Ambiguous Response--waiver

MS: must prove waiver beyond a reasonable doubt

Front 35

Right to Counsel

Back 35

Interrogation is not permitted after formal charges are filed, unless the D's attorney is present because the right to counsel attaches.

TEST for interrogation: Whether statement is deliberately elicited by police

Front 36

Formal Charges Initiated

Back 36

(1) Indictment

(2) Information

(3) MS: criminal warrant

Front 37

Pre-Trial Identification: Line-Ups/Show-Ups

Back 37

Two Constitutional Rights at Issue:

(1) Sixth Amendment Right to Counsel

(2) Due Process

Front 38

Sixth Amendment Right to Counsel

Back 38

After filing of formal charges, D has right to have attorney present.

Before filing of formal charges, no right to have lawyer present.

Front 39

Due Process

Back 39

Right to fundamental fairness---line up or show up cannot be unnecessarily suggestive so it results in a substantial likelihood of misidentification.

Front 40

Pre-Trial Identification: Photo Identifications

Back 40

Implicates one constitutional issue:

DUE PROCESS fundamental fairness: photo id cannot be unnecessarily suggestive so it results in a substantial likelihood of misidentification

Front 41

Pre-Trial Identification Violation Remedy

Back 41

Exclusion of the testimony of the identifying witness at trial unless government can establish that in court identification testimony is based on observations at crime scene and not the photo ID

Front 42

Right to Counsel

Back 42

**In all felony cases and in misdemeanor cases where jail time is actually imposed.

MS: RTC in all cases punishable by incarceration for 90 days or more and in ALL CRITICAL STAGES

Front 43

Critical Stage (RTC)

Back 43

One in which substantial rights are won or lost,or counsel is necessary to ensure a fair trial later.

(1) Custodial Interrogation
(2) Lineup after formal charge
(3) Initial Appearance
(4) Preliminary Hearing
(5) Guilty Plea
(6) Trial
(7) Sentencing
(8) Direct (1st) Appeal

Front 44

Non-Critical Stages (RTC)

Back 44

Lineup & Post Conviction Relief

Front 45

Right to Effective Counsel

Back 45

D has a right to effective assistance of counsel.

Requires a showing of:
(1) Incompetent counsel
AND
(2) With effective counsel the result in teh case probably would have been different

Front 46

Acceptance of Guilty Plea

Back 46

Judge is required to inform the D of:
(a) nature of crime
(b) maximum sentence
(c) inform right to plead not guilty
(d) mandatory minimum
(e) waiver of right to jury trial

**Must be voluntary

**Must keep a record of hte plea proceeding to ensure everything is done

SAME IN MS

Front 47

Setting Aside a Guilty Plea

Back 47

D may set aside a guilty plea if can establish:

(1) D received ineffective assistance of counsel
OR
(2) Guilty plea was involuntary
OR
(3) Judge failed to inform D properly, make inquiry into voluntariness, or make record
OR
(4) Prosecutory breached terms of plea agreement

Front 48

Speedy Trial

Back 48

Constitional right to speedy trial.

Begins to run when D is arrestes or formally charged WHICHEVER IS FIRST!

Front 49

Violation of Speedy Trial

Back 49

Determination of whether this right has been violated is determined on a CASE BY CASE BASIS based on:

(1) Length of Delay
(2) Reason for Delay
(3) Demand for Speedy Trial
(4) Prejudice of Delay

Remedy: Dismissal of Charges

MS law: Right to Speedy Trial requires that D be tried within 270 days of arraignment. [Can get continuance for good cause tolls running period and D must affirmatively assert]

Front 50

Right to Jury Trial

Back 50

Right to jury trial in all serious criminal cases where maximum penalty for charge is 6 months or more
[Everything else is petit offense]

SAME IN MS

Front 51

Jurors/Jury Verdict

Back 51

Generally 6 or more required.

MS: 12 jurors required

If 12 jurors, verdict can be 9 to 3.

MS: verdict must be unanimous

Front 52

Double Jeopardy

Back 52

Unconstitutional to put someone in jeopardy twice for the same offense.

**Cannot be tried twice or punished twice for same offense.

Front 53

Attachment of Jeopardy

Back 53

Jeopardy attaches when the jury is sworn in a jury trial or when the first witness on the issue of guilt is sworn in a bench trial.

Front 54

Double Jeopardy Exceptions

Back 54

(1) Hung jury in first trial

(2) D convicted but appeals and wins

(3) Mistrial for manifest necessity unless bad faith on part of the prosecution

Front 55

Double Jeopardy: Same Offense

Back 55

Two crimes do not constitute the same offense if each requires proof of fact the other does not

Front 56

Privilege Against Self Incrimination

Back 56

Allows a person to refuse to answer a question that will or might tend to incriminate him with respect to a crime.

**only with respect to a crime

**applies in any type of proceeding

**in a criminal trial, due to the privilege, the D does not have to testify, and prosecutor cannot comment on that failure to testify.

Front 57

MS: Arrest

Back 57

Can be effected pursuant to a warrant or without a warrant in certain circumstances.

Front 58

MS: Arrests w/ NO Warrant Requirement

Back 58

(1) Felony, even if not committed in officer's presence, if reasonable grounds that person committed the crime

(2) Misdemeanor not committed in officer's presence if domestic violence involved and probable cause person committed the crime.

(3) Misdemeanor committed in officer's presence

(4) Warrant outstanding for arrest of person and officer knows of outstanding warrant even if warrant not in officer's possession.

Front 59

MS: Jurisdiction

Back 59

Circuit court has exclusive jurisdiction over felonies

Circuit, county, and justice court have concurrent jurisdiction.

Front 60

MS: Initial Appearance

Back 60

**applies to all Ds in custody

**Person in custody must be taken without unnecessary delay and within 48 hours of arrest before a judicial officer.

**If arrest is made without warrant, judicial officer determine if probable cause exist for arrest

Front 61

MS: Initial Appearance Requirements

Back 61

Judicial officer must inform D of:

(1) Nature of Charges
(2) Right to Remain Silent
(3) Right to Counsel
(4) Right to Speak with Family/Friends
(5) Conditions under which D may obtain release
(6) Right to Preliminary Hearing

**No right to initial appearance if D released on bond or own recognizance indicted by grand jury.

Front 62

MS: Preliminary Hearing

Back 62

Purpose: Further court review of existence of probable cause and consider conditions for release, if any.

**If court has probable cause case bound over to grand jury.

**If court finds lack of probable cause case dismissed, but can be re-filed.

**No right to preliminary hearing if D guilty plea.

Front 63

MS: Arraignment

Back 63

Formal appearance in court after issuance of indictment where D enters an initial plea

**Triggers running of right to speedy trial (270 days)

Front 64

MS: Change of Venue

Back 64

D is entitled to a fair trial

May be granted if D can establish prejudice and fair trial cannot be had.

D must normally establish actual prejudice through affidavits of potential jurors; state may rebut by showing jury pool impartiality.

**In some cases of exception, pretrial publicity, prejudice is presumed.

Front 65

MS: Discovery [Prosecution Disclosure]

Back 65

Upon request, the prosecution must disclose to D:
(1) Names/Addresses of all witnesses and statements.
(2) Copies of any statements of the D
(3) D's criminal record
(4) Reports prepared by experts
(5) Physical/Photographic evidence
(6) Any exculpatory material

Front 66

MS: Discovery
[Defendant's Disclosure]

Back 66

(a) Names/Addresses/Statements of all Witnesses
(b) Physical/Photo Evidence
(c) reports prepared by experts

Front 67

MS: NOT Discovery

Back 67

(1) Work Product

(2) Identity of Informants

**Court may expand scope of discovery upon showing of materiality to preparation of defense.

Front 68

MS: Post Conviction Relief

Back 68

Convicted D may file petition in Supreme Court if pursued direct appeal; if no direct appeal pursued petition filed in court of conviction.

**NO RTC on post conviction except in capital case, but this is within court's discretion.

**Must be filed within 3 years after direct appeal decided