Criminal Procedure

Front 1

Exclusionary Rule

Back 1

1. All evidence seized in violation of the 4th Amendment, including physical evidence and statements, is inadmissible in a criminal proceeding.
2. A defendant asserting the 4th Amendment violation must personally be the victim of the police's unreasonable conduct. A court must determine whether the person who claims the protection of the Amendment has a legitimate expectation in the invaded place.
3. Any additional evidence acquired either directly or indirectly, including oral statements, from the illegal arrest, search or seizure, must also be excluded as tainted fruit of the poisonous tree. May still be admitted into evidence if it comes from an independent source, or there was inevitable discovery, or an intervening act of free will.
4. The exclusionary rule does not apply to impeachment.

Front 2

Good Faith Exception to Exclusion

Back 2

1. Factors for considering good faith include: 1) the police were acting in good faith reliance on a valid warrant, 2) the police were acting on reliance on a valid statute, 3) the police were acting in reliance on a court official rather than a police officer.
2. The good faith exception does not apply where 1) the police lie or mislead the court in attaining a warrant, the magistrate is not neutral or detached, and no reasonable police officer would have believed the warrant was valid.

Front 3

Expectation of Privacy

Back 3

1. For a reasonable expectation of privacy, the person must have standing, and the objects must not be held out to the public.
2. Standing - an ownership or possessory interest in a premises is sufficient to have standing, a passenger in an automobile lacks standing, a defendant who is an overnight guest in another's home does have standing (commercial, non-overnight social guests do not). The defendant must show that there is a fairly substantial nexus between the defendant and the place searched.
3. Held out to the Public - no expectation of privacy if the item is held out to the public, and no expectation of privacy even if not held out to the public for 1) handwriting and voice exemplars, 2) bank records, 3) pen registers (which records phone numbers dialed), and private conversations that are eavesdropped on.
4. Examples - if government uses a device not in general use, this is presumptively unreasonable without a warrant, areas outside of the home's curtilage does not have 4th amendment protection, a defendant loses right to privacy in items that are thrown away or abandoned in rented homes.

Front 4

Consent

Back 4

1. Three elements are required: voluntariness, proper scope and third party consent.
2. Voluntariness - to be effective consent requires voluntary and intelligent decision made without coercion. Consent with an invalid warrant, under duress, or fraud is not voluntary.
3. Proper Scope - the consent party controls the scope of the search, and any conduct exceeding the scope of the consent in unlawful. The scope is defined by the explicit or implicit terms of the consent. If consent to a search of a car is granted this includes containers in the car.
4. Third Party Consent - the consenting party must have the actual authority to consent, or has apparent authority to consent. This may occur when the person has the keys or knows where things are on the premise. A co-occupant's refusal to a search request is controlling over himself, and renders a warrantless search invalid as against him.
5. Consent may be revoked at any time.

Front 5

Probable Cause

Back 5

1. Quantity of facts and circumstances within the police officer's knowledge that would warrant a reasonable person to conclude that the individual in question has committed a crime (for an arrest) or that specific items related to criminal activity can be found at a particular location (for a search).
2. Probable cause for an alleged violation is sufficient for a search and seizure regardless of any other motive the police officer may have had in making a stop.

Front 6

Reasonable Suspicion

Back 6

1. Reasonable suspicion is a belief based upon articulable information more than a mere hunch used by a reasonable person or police officer that the suspect has or is about to engage in illegal activity.
2. Courts must look to the totality of the circumstances of each case to see whether the police officer has a particularized and objective basis for suspecting legal wrong doing.

Front 7

Terry Standard

Back 7

1. There must be more than reasonable suspicion to pat down and frisk a suspect.
2. The police must have articulate reasonable suspicion that the suspect is armed and dangerous.
3. Sudden flight in a high crime area may be sufficient.
4. An anonymous tip alone is inadequate, but an anonymous tip coupled with police corroboration of some of the information in the tip is sufficient, if there is an indicia of reliability to justify an investigative stop.

Front 8

Plain View

Back 8

1. The police may seize property that is clearly visible in plain view without a warrant if the police are lawfully positioned, and it is immediately apparent that the evidence is incriminating.

Front 9

Warrant Requirements

Back 9

1. The warrant must be issued by a neutral and detached magistrate who reviews evidence submitted by police officers and determines that there is probable cause to issue the warrant.
2. Either oral testimony or an affidavit must set forth the facts or circumstances relied upon by the magistrate, who must then make an independent judgment of the reasonableness of the requested search of seizure to determine if there is probable cause.
3. Absent independent justification, a search warrant confers upon police only the authority to search named places or persons.
4. Probable cause is satisfied if 1) the testimony or affidavit presented to the magistrate contains facts or circumstances that are still relevant and not out of date, and 2) it must be sufficient that a reasonable person would conclude it to be more probable than not that evidence of named items or persons will be found.
5. Warrants based on informant tips will be established by the totality of the circumstances which includes: 1) credible information, 2) reliable informant, 3) police corroboration, and 4) declarations against interest.

Front 10

Consent

Back 10

1. Consent is a warrantless intrusion requiring no justification; an individual may simply waive his or her 4th amendment rights so long as the waiver is voluntary.

Front 11

Reasonable Suspicion

Back 11

1. Reasonable suspicion is a belief based upon articulable information more than a mere hunch used by a reasonable person or police officer that the suspect has or is about to engage in illegal activity.
2. Courts must look to the totality of the circumstances of each case to see whether the police officer has a particularized and objective basis for suspecting legal wrong doing.

Front 12

Terry Standard

Back 12

1. There must be more than reasonable suspicion to pat down and frisk a suspect.
2. The police must have articulate reasonable suspicion that the suspect is armed and dangerous.
3. Sudden flight in a high crime area may be sufficient.
4. An anonymous tip alone is inadequate, but an anonymous tip coupled with police corroboration of some of the information in the tip is sufficient, if there is an indicia of reliability to justify an investigative stop.

Front 13

Plain View

Back 13

1. The police may seize property that is clearly visible in plain view without a warrant if the police are lawfully positioned, and it is immediately apparent that the evidence is incriminating.

Front 14

Warrant Requirements

Back 14

1. The warrant must be issued by a neutral and detached magistrate who reviews evidence submitted by police officers and determines that there is probable cause to issue the warrant.
2. Either oral testimony or an affidavit must set forth the facts or circumstances relied upon by the magistrate, who must then make an independent judgment of the reasonableness of the requested search of seizure to determine if there is probable cause.
3. Absent independent justification, a search warrant confers upon police only the authority to search named places or persons.
4. Probable cause is satisfied if 1) the testimony or affidavit presented to the magistrate contains facts or circumstances that are still relevant and not out of date, and 2) it must be sufficient that a reasonable person would conclude it to be more probable than not that evidence of named items or persons will be found.
5. Warrants based on informant tips will be established by the totality of the circumstances which includes: 1) credible information, 2) reliable informant, 3) police corroboration, and 4) declarations against interest.

Front 15

Consent

Back 15

1. Consent is a warrantless intrusion requiring no justification; an individual may simply waive his or her 4th amendment rights so long as the waiver is voluntary.

Front 16

Hot Pursuit

Back 16

1. A warrantless search is lawful when police are in actual hot pursuit of a fleeing suspect to apprehend him; they may seize mere evidence as well as any contraband they find.
2. Police may enter and search a private dwelling while in reasonable pursuit of a fleeing suspect.

Front 17

Automobile Exception

Back 17

1. Once the police have probable cause to search the moving or temporarily stopped vehicle, they may seize the vehicle and search it later, even if there is sufficient time to obtain a warrant between seizure of the vehicle and search.
2. The police may inspect a container within a car if they have probable cause to believe the container has contraband or evidence, even where the police do not have probable cause to search the entire car.
3. May lawfully do a warantless search during: searches incident to arrest, plain view, an inventory search or a border search.
4. Where there is probable cause to search the car, the police may search the entire vehicle, including closed containers and luggage, to find the objects for which probably cause exists.

Front 18

Exigent Circumstances

Back 18

1. The police can conduct a warrantless search and seizure of evidence in or on a suspect's body provided that: there is probable cause to believe that the nature of the evidence renders it easily destroyed or likely to disappear before a warrant can be obtained, and the procedure for seizing the evidence is reasonable.
2. Police may enter a home without a warrant when they objectively have a reasonable belief that an occupant is in serious imminent harm.
3. May search a crime scene for victims and the killer.

Front 19

Searches Pursuant to Stop

Back 19

1. Probable cause is not required for a short investigatory stop. The 4th Amendment is satisfied if the stop is supported by reasonable suspicion to believe that criminal activity may be afoot.
2. The police may stop traffic to check vehicle registration and licenses, so long as the stops are random and based on a fixed formula. Sobriety checkpoints are permissible.

Front 20

Searches Incident to Lawful Arrest

Back 20

1. Defendant's person may be searched incident to a lawful arrest as well as the area within his immediate control. A search incident to arrest includes a cursory scan or protective sweep of adjoining rooms and provided there is reasonable suspicion of an armed accomplice, the entire domicile may be scanned.
2. If a custodial arrest is affected while the defendant is in a car, the police may search the passenger compartment of the vehicle only if it is reasonable to believe that the defendant might access the vehicle at the time of search or that the vehicle contains evidence of the offense of the arrest.
3. May not search based on the issuance of a traffic citation, but may search if incident to an offense that authorizes a full custodial arrest.

Front 21

Stop and Frisk

Back 21

1. If a police officer reasonably believes, based upon the officer's own observations of those of an informant, that criminal activity may be afoot, then the officer may stop and briefly question the suspect. There must be some sort of objective evidence involved.

Front 22

Terry Stop

Back 22

1. Occurs when a police officer has reasonable and articulable suspicion that a suspect is armed and dangerous. The officer may without probable cause pat-down frisk search for concealed weapons. The frisk may also extend to the interior of the car where the suspect is sitting.
2. If the officer feels an item that feels like a weapon, the officer may seize the items, even if they turn out not to be a weapon.
3. A minimum level of justification must exist for reasonable suspicion, presence in an area is not enough.

Front 23

Wiretapping

Back 23

1. Any form of electronic surveillance, be it voice recording or otherwise, violates a defendant's right to reasonable expectation of privacy. A warrant therefore must be issued, demonstrating: probable cause must be shown that a crime has been or is being committed, the warrant must name the suspects as well as describe the particular conversation to be overheard, and the wiretap must be valid only for a brief period of time, after which it will be terminated and the conversation will be returned to court.

Front 24

Conversation

Back 24

1. Each party to a conversation assumes the risk that the other party will reveal, transmit, or tape record the substance of the conversation. This assumption also includes eavesdropping.

Front 25

Arrest

Back 25

1. A person is in custody when he, in the presence of a law enforcement officer, is not free to leave, and is thus deprived of his freedom of action in a significant way. Brief detentions by police are permissible for the purpose of questioning, even without probable cause that the person has committed a crime, such a stop is not considered an arrest.

Front 26

Warrant Requirement for Arrests

Back 26

1. Generally no warrant is required for an arrest, the police only need probable cause.
2. Probable cause to arrest may be obtained indirectly through an informant. The tip may serve as a basis for probable cause if reliability is established by: the informant's tip containing specific details, and the reliability of both the details and the informant being confirmed prior to the moment of arrest.
3. An arrest warrant is required before police can arrest an individual in his own home, absent exigent circumstances or consent.

Front 27

Involuntary Statement

Back 27

1. A statement is considered involuntary when the police subjected the suspect to coercive conduct and, under the totality of the circumstances that conduct was sufficient to overcome the will of the suspect.
2. Factors of coercion include the defendant's age, sex education and mental and physical health.
3. Police officers may not offer false promises of dropping charges to elicit confession.
4. Coercion may take the form of physical abuse, threats, or promises of leniency.
5. Conviction based upon a coerced testimony must be reversed regardless of the reliability of the confession or whether other evidence sufficient to sustain the conviction was introduced.
6. Harmless error rule is now applicable to the admission of involuntary confessions. Thus, confessions elicited in violation of the 6th or 14th amendment are subject to the harmless error standard.

Front 28

Self-Incrimination

Back 28

1. 5th Amendment privilege against self-incrimination must be asserted to be effective. A defendant may never be compelled to testify against himself.
2. The privilege may be asserted in a criminal, civil, or administrative proceeding where incriminating testimony can be used in a subsequent prosecution, such as in a grand jury proceeding where a trial may result.
3. The privilege protects against admission of evidence that is testimonial in nature, but not against the admission of real or physical evidence.
4. Defendant's silence may be used as an adoptive admission in a pre-
custodial situation.
5. Right to remain silent on any subject that tends to incriminate the person.

Front 29

The Miranda Rule

Back 29

1. No statement made by a defendant will be admitted into evidence unless, prior to custodial interrogation, the defendant is warned of the following 1) his right to remain silent, 2) that anything he says can be used against him in court, 3) he has the right to the presence of an attorney, and 4) if he cannot afford an attorney, one will be provided for him.
2. This does not replace the case by case voluntary approach.
3. A Miranda warning must be given when an interrogation occurs where police know or should reasonably know that their actions or inquiries are reasonably likely to elicit an incriminating response from the suspect. Volunteered statements are not considered a product of interrogation.
4. Physical evidence may still be allowed in, even if the statements are not. Furthermore, statements obtained in violation may still be used to impeach.
5. The police may not give a Miranda warning in the middle of questioning, and then ask the defendant to repeat the statements made before the Miranda warning was given.
6. During a roadside stop, a Miranda warning is not required because a person is not considered to be in custody given that the person being stopped is not considered to give up freedom.

Front 30

Assertion of Miranda Rights

Back 30

1. A defendant's right to terminate interrogation must be scrupulously honored . To resume questioning the police must allow for a significant period of time to elapse and provide fresh warnings. A defendant who has asserted his right to remain silent may be properly questioned about an unrelated crime following a lapse of time, and provided a new set of warnings.
2. A defendant who has requested an attorney may not be further questioned until either counsel is furnished or the defendant voluntarily initiates a discussion beyond a necessary inquiry arising out of the incidents of the custodial relationship.
3. Admissions obtained after the giving of Miranda warnings are admissible, even if prior admissions on the same matter were obtained in violation of Miranda.

Front 31

Miranda Inapplicable

Back 31

1. questioning by private security guards
2. on-the-scene questioning
3. statements made before a grand jury investigation
4. spontaneous, unsolicited statements
5. interrogation of a taxpayer during a criminal investigation by the IRS
6. questions by police officers regarding age, date of birth, height, weight and the like
7. questioning by a parole officer when the defendant was free to leave the police station

Front 32

Limitations and Exceptions to Miranda

Back 32

1. Failure to recite the Miranda warnings is a proper basis to render a statement inadmissible.
2. The Miranda rule applies only to statements made during custodial interrogation where the suspect experiences significant deprivation of freedom of movement and may not leave.
3. Terry stops are not considered to be custodial.
4. Admission of evidence in violation of a person's Miranda rights does not result in automatic reversal, but may be considered harmless error.
5. The right to receive Miranda warnings may in some cases be outweighed by the immediate threat posed to the public safety.

Front 33

What is Custody

Back 33

1. Under the subjective approach, which focuses on the state of mind of the suspect, a defendant would be considered in custody for Miranda purposes if he believed he was in custody.
2. The objective approach requires examination of all the circumstances of a particular case. This would take into account 1) when/where it occurred, 2) how long it lasted, 3) how many officers were present, 4) what the officers and the defendant said and did, 5) the presence of physical restraints, and 6) whether the person is questioned as a witness or suspect.

Front 34

Waiver of Miranda Rights

Back 34

1. Waiver of Miranda rights are permitted, but the prosecution must prove that there was compliance with the warning requirement and that the waiver was effective.
2. The waiver need not be in writing, but the waiver must be explicit, it cannot be presumed from defendant's silence.
3. Miranda waivers have been upheld even when obtained after police had misrepresented the strength of the case or the seriousness of the crime being investigated.
4. When either transactional or use immunity has been granted to defendant the privilege against self-incrimination is eliminated.
5. A waiver is valid as long as the defendant was aware of the Miranda rights and understood the waiver. The defendant need not be warned of possible charges facing him.

Front 35

Messiah Rule

Back 35

1. Under the Sixth Amendment, a suspect has a right to counsel during questioning by police. The accused must make the request unambiguously to the interrogator, at which time the questioning must cease.
2. The Sixth Amendment right to counsel is offense-specific and the police may continue to question on other offenses, even if those are factually related to the charged offense.
3. Once the Sixth Amendment right to counsel has attached, subsequent waiver of this right as to any police-initiated interrogation is invalid.
4. Counsel must be present during all questioning, and absent effective waiver once formal charges have been filed, the deliberate eliciting of statements without counsel violates the Sixth Amendment.
5. Recordings while out on bail violate right to counsel.
6. This applies to adversarial proceedings as well as non-custodial settings.
7. The initial appearance in court will trigger these rights.
8. Passive listening by a cellmate informant does not violate rights, but must not elicit remarks.

Front 36

Fruit of a Poisonous Tree

Back 36

1. Entrapment will result in the exclusion of a confession of statement to police only when the origin of intent was in the police. Thus, if the defendant was personally predisposed to commit the crime, entrapment is not a defense.
2. Even a voluntary statement or confession made after a waiver of Miranda rights may be inadmissible if it is the fruit of an illegal arrest, search or seizure.

Front 37

Pre-Indictment Identifications

Back 37

1. Any lineup, showup, or photo identification will be inadmissible as violative of due process when the identification is unnecessarily suggestive and likely to produce an irreparable mistaken identification.
2. When an out of court identification is excluded for suggestiveness or unreliability, a subsequent in-court identification will not be allowed.

Front 38

Post-Indictment Lineups

Back 38

1. The right to counsel attaches upon the start of adversary proceedings, to which an indictment would qualify.
2. After formal charges are filed, the defendant has the right to have counsel present at the lineup.
3. No right to counsel exists at police lineups conducted before the accused is indicted.
4. Inadmissibility, based on a violation of right to counsel, of a previous out of court identification does not bar the witness from making an in court identification that stems form an independent purging source.
5. Improper admission of an identification will result in overturning a conviction, unless the prosecution can show harmless error.

Front 39

Right to a Speedy Trial

Back 39

1. The right to a speedy trial attaches once a defendant is accused such as upon arrest or filing of charges.
2. A long interval between arrest and indictment raises the inference of a violation, even if the defendant was released after the arrest.
3. The court balances the length of the delay and the reason for the delay, courts look to whether the defendant is at fault and if the prosecution had a good faith reason for the delay and the justification for the delay. The court also looks at the defendant's assertion of the right to a speedy trial and the prejudice tot he defendant.

Front 40

Rights During the Discovery Stage

Back 40

1. The defendant must be informed of the charges against him in sufficient detail so that an adequate defense is possible.
2. Upon the request of the defense the prosecution must disclose: evidence that is favorable to the accused, or evidence when there is a reasonable probability that it is favorable to the accused. However, the prosecution is not required to disclose this information to a criminal defendant prior to entering into a plea agreement with him.
3. Unrequested exculpatory evidence must be disclosed only in situations where it creates a reasonable doubt that did not otherwise exist.
4. If the prosecution fails to disclose evidence in violation of the discovery rules, there is only a reversal upon a showing that the non-preserved evidence was actually exculpatory, and he was unable to obtain such evidence on his own.

Front 41

Double Jeopardy Attaches

Back 41

1. In a non-jury trial double jeopardy attaches when the first witness is sworn and the court begins to hear evidence. In a jury trial jeopardy attaches when the jury is impaneled and sworn.
2. When a grand jury fails to indict a defendant or hands down a no bill or no true bill that defendant may again be indicted for the same offense, as jeopardy has not yet attached.

Front 42

Same Offense

Back 42

1. Two crimes occurring out of the same transaction are considered the same offense, unless one of them requires proof of an additional element not contained in the other.
2. When all elements of one offense are contained in another offense that contains additional elements, then the first offense is a lesser-included offense of the second offense.
3. Once jeopardy has attached for the lesser or greater offense, retrial is barred for the offense.
4. If all the elements of a second offense have not occurred, a later trial for the greater offense is permitted. If the prosecution wishes to try closely related charges together, the defendant may make a motion for separate trials. But if the request is granted, he has waived any claims to double jeopardy.

Front 43

Separate Sovereigns Doctrine

Back 43

1. A defendant may be prosecuted for the same criminal conduct by a federal court and then a state court, or vice versa, or two separate states.

Front 44

Retrial After Jeopardy Attaches

Back 44

1. Retrial is permitted if the defendant successfully appeals his conviction because of an error at trial. If the appeal is granted because of the amount of evidence supporting the conviction, in such a case: a) a retrial following reversal due to insufficient evidence is prohibited by Double Jeopardy, but, b) a retrial following reversal due to the conviction being against the weight of the evidence is not barred.

Front 45

Retrial after Mistrial

Back 45

1. Retrial is permitted in situations where a mistrial has been granted on defendant's motion. Retrial is not permitted when the defendant objects to a mistrial, unless in the discretion of the court a manifest necessity exists that justice can only be served by declaring a mistrial.

Front 46

Right to Counsel

Back 46

1. A defendant, in order to prove ineffective counsel, must show: that counsel was ineffective, for example, because he deviated from reasonably prevailing norms, and there is a reasonable probability that the verdict would have been not guilty had counsel been effective.
2. If there is an actual conflict that adversely affects attorney's performance, reversal is proper.

Front 47

Waiver of Right to Counsel

Back 47

1. May waive the right to counsel if it is done knowingly and intelligently. Although a defendant has the right to represent himself, the court is permitted to appoint a stand-by counsel, even over the defendant's objection, provided the defendant maintains actual control over his case.
2. The trial court may deem a person incompetent to defend himself, even if they are competent to stand trial.

Front 48

Imprisonment without an Attorney

Back 48

1. A defendant may not be imprisoned for any offense, whether classified as petty, misdemeanor, or felony unless he was represented by counsel, absent waiver.
2. A suspended sentence that may result in the actual deprivation of a person's liberty may not be imposed unless the defendant was provided assistance of counsel int he prosecution for the crime charged.
3. failure to provide counsel at trial results in automatic reversal. The harmless error rule applies, however, to denial of counsel at criminal proceedings other than trial.
4. The right to counsel attaches at all critical stages of the proceedings that affect the defendant's right to a fair trial (Page 163, book 2).

Front 49

Jury Trial

Back 49

1. The right to a jury trial attaches in any criminal proceeding where the defendant faces a potential sentence of longer than 6 months. In a civil contempt case, no right to a jury attaches.
2. The defendant can expressly and intelligently waive his right to a jury trial.

Front 50

Right to Confrontation

Back 50

1. The defendant has a fundamental right of confrontation, meaning he may confront all witnesses against him in any criminal prosecution.
2. Placing a screen between a child-abuse victim and the defendant is a violation of the confrontation clause, but excluding the defendant and transmitting the child's testimony to him via television is permissible.
3. The introduction of out-of-court statements must not deny the defendant the right of confrontation. Non-testimonial statements are admissible when made in the course of a police investigation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.