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74 Cards in this Set
- Front
- Back
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4th Amendment
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prohibition against unreasonable search and seizure
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5th Amendment
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Privilege against compulsory self -incrimination
Prohibition against double jeopardy |
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6th Amendment
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Right to speedy trial
Right to trial by jury Right to confront witnesses Right to assistance of counsel |
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8th Amendment
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Prohibition against cruel and unusual punishment
1. death penalty 2. prisoner rights |
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Exclusionary rule
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A D who has been a victim of an illegal search or a coerced statement (among other remedies) have the product of the illegal serach or the coerced statement excluded from and subsequent prosections
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Does the exclusionary rule apply to grand jury proceedings?
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NO - a grand jury W may be compelled to testify based on illegally obtained evidence
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When may excluded real or physical evidence be used at trial?
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To impeach the credibility of the D's trial testimony.
Miranda violations may be used to impeach the D's testimony. May NOT be used to impeach the D's W's testimony. May NOT be used to exclude for violations to the knock and announce rule in the execution of search warrants. |
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Is Exclusion a remedy in civil proceedings?
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NO
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To qualify for exclusion the search must violate what?
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the federal constitution or federal law
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Does exclusion apply to parole violation hearings?
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No
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What is the fruit of the poisonous tree doctrine?
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Excludes all illegally seized evidence, but will also exclude all evidence obtained for derived from the police illegality.
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Fruit of the poisonous tree does not apply when?
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To miranda violations, unles the police act in bad faith obtaining such information.
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What three ways may the government break the chain between the orinional unlawful police action or supposedly derived pieces of evidence?
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1. had an INDEPENDANT source
2. that INEVITABLE discovery 3. INTERVENING acts of free will on the part of the D. - #3 - I's |
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What is the harmless error rule?
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a conviction will be upheld on appeal if the conviction would have resulted despite the improper evidence.
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An arrest must be based on ?
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probable cause
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Are arrest warrants required when arresting someone in a public place?
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No, even if police have time to go get one.
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When must an officer have a arrest warrant?
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When the individual is in his home.
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What to police need for station house detention?
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Police must have probable cause to arrest you and compel you to come tothe police station for either fingerprinting or interrogation.
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What is a Terry stop?
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Allows a police officer to stop an individual for a reasonable amount of time who the officer believes may be involved in criminal activity to confirm or dispell the officers suspicions.
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Requirements for a Terry stop?
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An officer must have REASONABLE SUSPICION supported by ARTICULATABLE FACTS of criminal activity. (Hunch is not enough)
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Reasonable suspicion depends on what?
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Totality of the circumstances test
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When may an officer stop an automibile?
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Officers must have REASONABLE SUSPICION that the law has been broken.
Exception: Check point road blocks so long as it isneutrally applied - every fourth car. |
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Are dog sniffs a search during routine traffic stops?
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No, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquires.
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What must a valid serch warrant have?
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2 P's
1. probable cause 2. particularity |
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In what areas do citizens have no expectation of privacy because they are held out to the public everyday?
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1. your voice, 2. handwriting 3. paint outside your car 4. account records held by a bank 5. moniatoring the location of your car on a public street or your driveway(may not use GPS without warrant) 6. open fields 7. public airspace 8. odors coming from your luggage or car 9. your garbage set out on the curb for collection.
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Standard for probable cause?
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a fair probability that contraband or evidence of a cirem will be found in he area searched.
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When obtaining a warrent particularity means?
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the warrant must state with particularity the place to be searched and hte thing to be seized.
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When may informant supplied information be used to obtain a search warrant?
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a. officers affidavit or probable cause is based on infornat info its sufficiency is determined by thetotality of the circumstances.
b. informant's reliability/credibility and basis of knowledge c. may be based in part on an anonymous tip |
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Describe the knock and announce rule.
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When serving a search warrant, generally, the police knock and announce they are there and going to enter. However, no knock and announce is permited if:
1. it would be dangerous, futile, or inhibit the investigation 2. fear distruction of evidence |
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If the warrant is not valid does the officer's good faith reliance on the warrant save the defected warrant?
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Yes, unless -
1. affidavit underlying the warrant is so lacking in: a. probable cause, b. particularity no reasonable officer would have relied upon it or c. the officer mislead or lied to the judge, b. the judge is bias. |
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Search incident to arrest require what?
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1. the arrest is lawful
2. the arrest and search must be contemporaneous in time and place. 3. the areas searched may be the person "wing span" where they can reach to get a weapon or distroy evidence. |
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Automobile searches incident to arrest - when may the officer validly search the vehicle?
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1. when the arrestee is unsecured and may still obtain access to the vehicle, OR
2. the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle. (even if it is something different is found that does not have anything to do with the arrest.(Gant) |
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What is the community caretaker exception rule?
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An officer may justify a warrantless search, if an officer faces an emergency that threatens the health or safety of an individual or the public.
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Requirements to seach an automobile?
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1. officer must have probable cause
2. officer may search the entire car including the truck 3. officer may search closed containers with in the car which could RESASONABLY contain what they had PC to look for whether or not it belongs to the driver or passanger |
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May probable cause arise after the car is stopped allowing the officer to search the vehicle?
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Yes. as long as the PC arises before any thing or anybody is searched. Officer may search anywhere in the car and in any containers that may contain the items the officer has PC to search for.
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What is necessary to a vaild plain view seizure?
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1. the officer must be LEGITIMATELY PRESENT in the location where he does the viewing of the item seized.
2. it must be IMMEDIATELY APPARENTthat the item is contraband or a fruit of a crime. |
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When is consent to search not valid?
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When the officer tell the person to be searched that they have a warrent but really they do not.
Must consent voluntarily and intelligent. |
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If both D's have equal right to use a property who may consent to a warrantless search?
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Either of them. However, if one person objects even if the other consents, the officer may not search without a warrant.
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What is a Terry Stop?
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A brief detention for the purposes of investigating suspicous conduct. Officer only need reasonable suspicion (less than PC)
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What is a Terry frisk?
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A pat down of the outer clothing and body to check for weapons. (plain feel) Public policy - want to protect the safety of the officer. (if PC arises during the investigatory stop, the detention may become an arrest and then officer can conduct a full search incident to that arrest.
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What is the stand for a warrantless automobile Terry search?
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If the vehicle is property stopped for a traffic violaiton and the officer reasonably believes the driver or passanger are armed and dangerous the officer may 1. conduct a frisk of the occupants and 2. may search the vehicle limited to an area where the suspect may hide a weapon.
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What is evanescent evidence and must there be a search warrant to obtain it?
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Evidence that might disappear quickly and an officer need not get a warrant.
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When may an officer enter a residence and search without a warrant?
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When they are in hot pursuit of a felon. No more that 15 minutes behind for the MBE. Anything they see in plain view will be admissible.
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When may an inventory search be conducted?
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Before incarceration of an arrestee, the police may search
1. the arrestee's personal belongings, and 2. the arrestee's vehicles including any closed containers in the vehicle. |
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When are public school warrantless searches valid?
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1. children engaged in extracuricular activities can be randomly searched 2. may search personal items such as purses and back packs to investigate violation of school rules, 3. Searches that may not be reasonable are a. only moderate chance of finding wrong doing, b. measures reasonably related to the objectives of the search, c. search not excessively intrusive.
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What are the exceptions to the warrant requirement to eavesdropping?
Unreliable ear or the uninvited ear? |
a. if one party is agrees to be wired by the gov, then the other person has no 4th amendment objection on the basis that it was a warrantless search. b. no 4th amendment protection when the speaker makes no attempt to keep the conversation private.
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Miranda warnings must contain which of the following?
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1. right to remain silent 2. anything you say can and will be used against you 3. you have the right to an attorney, and 3. if you cannot afford an attorny, one will be appointed for you if you so desire. (need not be verbatum.
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What triggers the miranda warning?
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Custodial interrogation.
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What is the legal standard for custody?
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When a D is not free to leave and is determined using an objective standard.
No custody during a probation interview or routine traffic stops are not custodial. |
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An interrogation occurs when?
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Conduct where the officer knew or should have known that they might illicit an incriminating response form the suspect. Miranda warnings are no required prior to the admissibility of a spontaneous statement.
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For waiver of a miranda warning to be effective it must be ...?
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Given knowningly, voluntarily and intelligently. The courts apply a totality of the circumstances test.
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A person invoking their miranda right to remain silent must do it unambiguously. Can officers reinitiate questioning at some point?
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Yes, as long as a significant time has passed, the D is re-mirandized and the questions are not the subject of the earlier questioning.
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To invoke the miranda right to counsel what must the D do?
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Must invoke unabiguously. If the D invokes the right then police must stop all questioning unless the D initiates additional questioning. Even if statement are inadmissible, they may be used to impeach the D.
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What is the difference between the 5th and 6th right to counsel?
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5th amendment (Miranda) ct created right is not offense specific and thus applies to the entire process of custodial police interrogation. 6th amendment is offense specific, meaning that counsel would only need to be present if the D were being asked Q's about the specific case D has retained counsel.
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Pretrial ID's violate the right to counsel when?
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Post charge lineups and post charge showups give rise to the right to counsel.
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What two ways may the D attack the a pretrial ID?
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1. Denial of right to counsel at a post charge lineup or show up, and 2. denial of due process wehn the ID techniques are so unnecessarily suggestive and substantially likely to producte misidentification. Remedy is to excluse, unless P can showadequat3e independant source for ID.
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Are bail issues appealable
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Yes, immediately.
Preventive detention is constitutional. |
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May evidence obtained illegally be included in the grand jury proceedings?
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Yes. D has no right to appear and no right to send Ws and they are secret.
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Prosecutors are required to disclose exculpatory evidence to the D or it will violate the D's right to due process. This failure may provide grounds for reversal if?
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1. the evidence is favorable to the D, and
2. prejudice has resulted, meaning there is a resaonable probability that the result would be different had the information been disclosed. |
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When does a jury's decision have to be unanimous ?
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When the punishment is 6 months or more for the offense.
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D has a right to counsel when?
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At all critical stages of the trial.
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What is required to claim ineffective counsel?
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There must be deficent performance by counsel and, but for such deficiency, the result of the proceeding would have been different. The claim must include specific errors made by trial counsel.
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Must the D be provided a face to face confrontation with the W as not to violate the D's 6th amendment rights?
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No, when preventing such confrontation serves an important public purpose and the reliability of the W's testimony is otherwise assured. Public policy = Child sex abuse case. Child testifies from another room on close circuit tv.
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What happens if the D is disruptive?
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they may be removed from the ct room and the trial may go on.
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Will the SC overturn guilty pleas?
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No - contract theroy.
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When a D's pleads guilty what must a judge ask him?
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Specifically address the D on the record about
1. nature of the charges against him 2. Judge must tell D the max and min penalty 3. Judge must tell D he has the right to plead not guilty and demand a trial. |
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4 good reasons for withdrawing a plea
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1 involuntary
2. lack of jurisdiction 3. ineffective assistance of counsel 4. prosecutor violates the agreement |
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When is a death penalty statute unconstitutional?
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When it does not give the D an opportunity to present all mitigating facts and circumstances. There can be no automatic category for imposition of the death penalty.
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Who may decide the aggravating factors imposition of the death penalty?
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only the jury not a judge may determine the aggravating circumstances imposing the death penalty.
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When does jeopardy attach in a jury trial?
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When the jury is sworn.
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When does jeopardy attache in a judge trial?
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When the 1st W is sworn.
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Exceptions when jeapordy does not attach?
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1. hung jury
2. medical emergency during trial 3. retrial after successful appeal, however, D, may not be tried for a more serious offense at new trial. 4. If D breaches plea agreement - he may be tried for orig. crime. |
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Are the statements made by the P concerning the D's right to remain silent or his right not to testify at trial in front of the jury okay?
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NO
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5th amendment may be eliminated in three ways
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1. Immunity
2. No possibility of incrimination (SOL) 3. Waiver - D takes the witness stand |
