Criminal Procedure

Front 1

What are the requirements of a warrant?

Back 1

Provide Reasonable details to place/person to be searched/seized

Front 2

When will PC based on falsities be invalid?

Back 2

If D Proves
1) It was an INTENTIONAL LIE
2) Relating to a MATERIAL FACT
3) Made by a GOVERNMENT official

Front 3

What is the three step process in a stop and frisk?

Back 3

1) Requires REASONABLE SUSPICION for the stop
2) Officers can STOP person and ask questions
3) If REASONABLE BELIEF that person is ARMED, can pat down to look for WEAPONS

Front 4

What is required to take out drugs during a stop and frisk?

Back 4

PROBABLE CAUSE that it is in fact a drug (tough to do)

Front 5

What are three exigent circumstances that mean no warrant is required?

Back 5

1) Hot Pursuit
2) Scene of a Homicide
3) Sweep of Premises

Front 6

What is required to search public school children?

Back 6

Reasonable suspicion (possibly outdated)

Front 7

What does Prosecution need to prove about a confession?

Back 7

Voluntary by a Preponderance of the evidence

Front 8

Who determines if the confession was voluntary?

Back 8

Question of fact -- Jury decides (but judge can decide if its controverted to send to jury)

Front 9

What are requirements for Miranda warnings to be issued?

Back 9

1) Interrogation
2) Custody
3) Testimonial Statement

Front 10

What does "interrogation" mean for Miranda?

Back 10

When police questions are REASONABLY likely to elicit a response

Front 11

What is Custody?

Back 11

An OBJECTIVE standard of whether Defendant should have felt free to go

Front 12

Who has burden to prove waiver of Miranda rights? What must they prove?

Back 12

Government has burden to prove that person voluntarily and willingly waived his rights

Front 13

When can confessions be used even if in violation of Miranda?

Back 13

For IMPEACHMENT

Front 14

When can a Miranda violation NOT be used even for impeachment?

Back 14

If violates DUE PROCESS CLAUSE

Front 15

If one confession was in violation of Miranda, and a second confession was made after a proper set of warnings. What result?

Back 15

Confession OK, unless first violation was intentional

Front 16

When does a person have a right to an attorney for an identification?

Back 16

For 1) in-person identifications once someone has been 2) formally charged

Front 17

What is the requirement for an in-court identification if the out of court identification was illegal?

Back 17

It must be INDEPENDENT from initial identification

Front 18

What does a person need to have standing to challenge a constitutional violation?

Back 18

Must have SUFFICIENT PRIVACY INTEREST to challenge

Front 19

What question do you ask to determine if something is the "fruit of the poisonous tree"

Back 19

Is the ultimate piece of evidence still tainted by the initial illegality?

Front 20

When does the right a speedy trial begin?

Back 20

Once formally charged

Front 21

What is the SOL for a trial in Virginia?

Back 21

5 months after formal charge if in custody
9 months if not in custody

Front 22

When is someone entitled to a jury trial?

Back 22

If actual sentence is for more than 6 months

Front 23

How many jurors must vote for conviction?

Back 23

unanimous verdict

Front 24

How many jurors does Va require?

Back 24

12 for a felony
7 for a misdemeanor

Front 25

How many peremptory challenges does each side get?

Back 25

4 in a felony
3 in a misdemeanor

Front 26

What cases do the GDC hear?

Back 26

1) Misdemeanors
2) Preliminary hearings for felonies

Front 27

What cases do the Circuit court hear?

Back 27

1) Trial and appeal de novo from GDC hearings
2) All trials for felonies

Front 28

What cases does the Court of Appeals here?

Back 28

1) DISCRETIONARY appeals from circuit court
2) Highest appeal if no incarceration

Front 29

What does the State Supreme Court hear? (3)

Back 29

1) Discretionary appeals from Court of Appeals
2) Mandatory Direct Appeal for all death penalty cases
3) Exclusive jurisdiction for writ of habeas corpus involving death penalty

Front 30

Who determines the sentence?

Back 30

The jury, which the judge usually follows

Front 31

When does the 6th Amendment right to counsel attach?

Back 31

After the formal charge

Front 32

Once the right to counsel attach, what can the government not do?

Back 32

It cannot ask questions about THE OFFENSE of which D has been charged with without the attorney present

Front 33

Does the right of counsel remain throughout the appellate process?

Back 33

Right of counsel is only for APPEALS OF RIGHT

Front 34

What is required to waive your right to counsel?

Back 34

Must be done after colloquy after judge

Front 35

What is minimum crime where right to counsel is triggered?

Back 35

If incarceration is sentenced

Front 36

What are the element to prove ineffective assistance?

Back 36

1) Not reasonably competent
2) Incompetence was material and impacted outcome of trial

Front 37

When will a guilty plea be RESCINDED?

Back 37

If prosecutor PROMISES a minimum sentence, but judge gives more

Front 38

What does double jeopardy attach?

Back 38

When jury sworn in, or first witness sworn in for a bench trial

Front 39

When will double jeopardy not attach even after jury sworn in?

Back 39

If MANIFEST NECESSITY requires a new trial

Front 40

How do you determine if something is the "same offense" for double jeopardy purposes?

Back 40

Whether is a NEW ELEMENT of a crime

Front 41

What is special rules in Virginia regarding conspiracy and double jeopardy?

Back 41

1) Prosecution for underlying offense bars prosecution for related conspiracy
2) Being prosecuted for federal crime bars state prosecution under equivalent state statute

Front 42

What is included in D's privilege against self-incrimination?

Back 42

Testimonial evidence that could be used to convict D

Front 43

What are rules regarding an officer asking a suspect to provide ID?

Back 43

1) If a valid Terry stop, can be required to provide ID
2) If invalid stop, a search based on refusal to provide ID would be illegal

Front 44

Where do you flie a habeas corpus petition?

Back 44

At the SENTENCING court

Front 45

What is standard for 8th amendment?

Back 45

Evolving standards of decency

Front 46

What are options for Preliminary Hearing in GDC?

Back 46

1) Find PC for felony, send to Circuit
2) Find PC for misdemeanor and keep case
3) Find no PC

Front 47

What is the only type of grand jury able to issue indictments?

Back 47

Regular (charging) grand juries

Front 48

What is an indictment required?

Back 48

For a FELONY

Front 49

When will D not be entitled to bail?

Back 49

1) Probable Cause she will not appear
2) Poses a risk to the public

Front 50

When will an indictment be invalid?

Back 50

1) Failure to state an offense
2) Systemic exclusion from grand jury based on race