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46 Cards in this Set
- Front
- Back
What are the key areas for examination?
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Search and seizure; and confessions.
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What is the Incorporation Doctrine?
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The Bill of Rights does not apply to States, but the 14th Amendment incorporates them.
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What is the exclusionary rule?
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If the search was unlawful, the evidence is suppressed.
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If you have an arrest warrant, can you go into the defendant's house?
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No. You need a warrant for the house.
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When is probable cause determined?
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The moment before the arrest.
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Does 4th Amendment apply to private citizens?
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No.
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Are there Due Process limitations on search and seizure?
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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.
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What is needed for an affidavit supporting a warrant?
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1. Signed by officer or prosecutor.
2. Shows probable cause within four corners of the document. |
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What are the elements for challenging an affidavit supporting a warrant?
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1. It's an intentional lie
2. relating to a material fact 3. made by a government officer (not an informant). |
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If the police act on a warrant that turns out to be supported by lies, will the evidence be thrown out?
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Not if they are acting in good faith. Warrant can't obviously be bad and they can't ask six judges.
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Who can issue the warrant?
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A neutral magistrate -- even a clerk.
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Is knock and announce required?
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Yes. It's case by case. State laws saying you don't need it for drug cases are unconstitutional.
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What are the exceptions to the warrant requirement?
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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 |
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What is the test for what is a proper search for "incident to arrest"?
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Area of Immediate Control
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What is the key for the automobile exception?
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You need probable cause that a crime has been committed.
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What is required to search a car that is in inventory?
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1. Car is lawfully in custody
2. Searches are done routinely as part of SOP. |
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When are sobriety checkpoints okay?
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1. Routinely done
2. for a specific purpose (can't be on fishing expedition) 3. with a limited intrusion. |
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What is the Plain View Doctrine?
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If officer is in a place he can lawfully be, and sees evidence, it's not improper.
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What is the key question re. consent?
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Voluntariness.
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What is the process for a Terry stop?
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1. Reasonable suspicion that a crime is about to take place.
2. Detain and quetsion. 3. Frisk, reach in (open pat; if answers unsatisfactory). |
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What is the standard for school searches?
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Reasonable suspicion.
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What's the first thing to ask for confessions?
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Due Process -- was it voluntary?
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What is the standard of proof for coerced confessions?
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Preponderance of the evidence, decided by the judge.
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Miranda relates to which amendment?
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Fifth.
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What is the Miranda standard?
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Must be given before any interrogation while in custody.
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What are the two standards re. resumption of questioning?
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1. If defendant requests silence, you can resume later.
2. If defendant requests a lawyer, you have to wait until he has a lawyer. |
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Can Miranda be used for impeachment?
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Yes, if defendant takes the stand. Can ONLY be used for impeachment. If earlier statement violated Due Process, can't be used for anything.
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What's the public safety exception to Miranda?
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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.
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What if a violation of Miranda leads to a second confession?
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If it's not an intentional violation of Miranda, second confession is admissible. If it is intentional, everything afterwards is excluded.
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What is the due process standard for pretrial i.d.'s?
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Reliability: was it fair? Decision for judge.
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Is defendant entitled to have lawyer at pretrial i.d.?
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Yes, if charged. Lawyer can't control it but can point out deficiencies.
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What is the test for standing for improper evidence?
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Violation of a sufficient privacy interest. Casual visitors not enough; overnight guests and dinner companions have more of an interest.
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What if improper search of A's house leads police to B who leads the police to the gun which incriminates A and C?
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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.
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Which should you do first, poisonous fruit analysis or standing analysis?
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ALWAYS do standing analysis first.
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When are you entitled to jury trial?
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If the statutory maximum sentence is greater than six months.
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What is the fewest number of jurors you can have?
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Six, but if you only have six, it must be unanimous. With 12, the Court doesn't require unanimity.
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What does Gideon v. Wainwright hold?
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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.
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Is there right to counsel on appeal?
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Yes, for the first appeal. After that, it's discretionary.
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What is the standard for ineffective assistance of counsel?
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Reasonably competent assistance. And, you have to show that it fucked up your trial.
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For the "heat of passion" instruction, who has to prove the element of heat of passion?
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It's a negative element, but it's an element. So the Government has to disprove the element.
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For double jeopardy purposes, when does jeopardy attach?
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When the jury is sworn in or, at a bench trial, when the first witness is sworn in.
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For double jeopardy purposes, what is "manifest necessity?"
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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.
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When can the same offense be tried again for a different crime?
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If each of the two crimes has unique elements.
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Can you be charged once for selling drugs and again for conspiracy to sell drugs?
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Yes. Each crime has a unique element.
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What if defendant is charged with murder, convicted of manslaughter, appeals; new trial; charged again with murder. Is this a constitutional violation?
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No. If you appeal conviction, you've waived double jeopardy claims.
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Can you be sanctioned for not identifying yourself?
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If it's an illegal stop, it's not a violation. If it's a legal stop, it may be a violation.
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