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46 Cards in this Set

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  • Back
What are the key areas for examination?
Search and seizure; and confessions.
What is the Incorporation Doctrine?
The Bill of Rights does not apply to States, but the 14th Amendment incorporates them.
What is the exclusionary rule?
If the search was unlawful, the evidence is suppressed.
If you have an arrest warrant, can you go into the defendant's house?
No. You need a warrant for the house.
When is probable cause determined?
The moment before the arrest.
Does 4th Amendment apply to private citizens?
No.
Are there Due Process limitations on search and seizure?
Yes, for when police conduct is so extreme it violates Due Process Clause. For example, the stomach pump case. And removal of bullet using surgery.
What is needed for an affidavit supporting a warrant?
1. Signed by officer or prosecutor.
2. Shows probable cause within four corners of the document.
What are the elements for challenging an affidavit supporting a warrant?
1. It's an intentional lie
2. relating to a material fact
3. made by a government officer (not an informant).
If the police act on a warrant that turns out to be supported by lies, will the evidence be thrown out?
Not if they are acting in good faith. Warrant can't obviously be bad and they can't ask six judges.
Who can issue the warrant?
A neutral magistrate -- even a clerk.
Is knock and announce required?
Yes. It's case by case. State laws saying you don't need it for drug cases are unconstitutional.
What are the exceptions to the warrant requirement?
SPACE GAS

S: Stop and frisk
P: Plain view
A: Automobile exceptions
C: Consent
E: Emergencies

G: Garbage Pails
A: Arrest (incident to)
S: School searches
What is the test for what is a proper search for "incident to arrest"?
Area of Immediate Control
What is the key for the automobile exception?
You need probable cause that a crime has been committed.
What is required to search a car that is in inventory?
1. Car is lawfully in custody
2. Searches are done routinely as part of SOP.
When are sobriety checkpoints okay?
1. Routinely done
2. for a specific purpose (can't be on fishing expedition)
3. with a limited intrusion.
What is the Plain View Doctrine?
If officer is in a place he can lawfully be, and sees evidence, it's not improper.
What is the key question re. consent?
Voluntariness.
What is the process for a Terry stop?
1. Reasonable suspicion that a crime is about to take place.
2. Detain and quetsion.
3. Frisk, reach in (open pat; if answers unsatisfactory).
What is the standard for school searches?
Reasonable suspicion.
What's the first thing to ask for confessions?
Due Process -- was it voluntary?
What is the standard of proof for coerced confessions?
Preponderance of the evidence, decided by the judge.
Miranda relates to which amendment?
Fifth.
What is the Miranda standard?
Must be given before any interrogation while in custody.
What are the two standards re. resumption of questioning?
1. If defendant requests silence, you can resume later.
2. If defendant requests a lawyer, you have to wait until he has a lawyer.
Can Miranda be used for impeachment?
Yes, if defendant takes the stand. Can ONLY be used for impeachment. If earlier statement violated Due Process, can't be used for anything.
What's the public safety exception to Miranda?
If cops ask criminal "Where's the gun?" in the grocery store, they're not asking for evidence but for public safety, and Miranda does not apply.
What if a violation of Miranda leads to a second confession?
If it's not an intentional violation of Miranda, second confession is admissible. If it is intentional, everything afterwards is excluded.
What is the due process standard for pretrial i.d.'s?
Reliability: was it fair? Decision for judge.
Is defendant entitled to have lawyer at pretrial i.d.?
Yes, if charged. Lawyer can't control it but can point out deficiencies.
What is the test for standing for improper evidence?
Violation of a sufficient privacy interest. Casual visitors not enough; overnight guests and dinner companions have more of an interest.
What if improper search of A's house leads police to B who leads the police to the gun which incriminates A and C?
A has standing. Gun's admissible anyway because it wasn't foreseeable. If illegal act leads to voluntary statements of third party, that's not foreseeable and is admissible. C does not have standing.
Which should you do first, poisonous fruit analysis or standing analysis?
ALWAYS do standing analysis first.
When are you entitled to jury trial?
If the statutory maximum sentence is greater than six months.
What is the fewest number of jurors you can have?
Six, but if you only have six, it must be unanimous. With 12, the Court doesn't require unanimity.
What does Gideon v. Wainwright hold?
You're entitled to a lawyer at trial in SERIOUS criminal cases. A serious case is one in which there's a chance you'll go to jail. If you're not given a lawyer, you can't go to jail.
Is there right to counsel on appeal?
Yes, for the first appeal. After that, it's discretionary.
What is the standard for ineffective assistance of counsel?
Reasonably competent assistance. And, you have to show that it fucked up your trial.
For the "heat of passion" instruction, who has to prove the element of heat of passion?
It's a negative element, but it's an element. So the Government has to disprove the element.
For double jeopardy purposes, when does jeopardy attach?
When the jury is sworn in or, at a bench trial, when the first witness is sworn in.
For double jeopardy purposes, what is "manifest necessity?"
It's an exception to jeopardy. If a new trial is necessary, and it's not the government's fault (e.g., the judge dies), a new trial is okay.
When can the same offense be tried again for a different crime?
If each of the two crimes has unique elements.
Can you be charged once for selling drugs and again for conspiracy to sell drugs?
Yes. Each crime has a unique element.
What if defendant is charged with murder, convicted of manslaughter, appeals; new trial; charged again with murder. Is this a constitutional violation?
No. If you appeal conviction, you've waived double jeopardy claims.
Can you be sanctioned for not identifying yourself?
If it's an illegal stop, it's not a violation. If it's a legal stop, it may be a violation.