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62 Cards in this Set
- Front
- Back
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4 ways to exclude confessions?
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1. Miranda 2. Right to counsel 3. Not voluntary 4. Fruit of illegal conduct
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What is the voluntariness approach and what part of the constitution does it come from?
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Any confession that was not volutary and was coerced by cops is excluded. It comes fromthe Due Process clauses of the 5th and 14th
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Who makes decision on whether confession was voluntary or involuntary?
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Judge
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What is the test the court uses in determining if the confession was voluntary or involuntary?
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Totality of the circumstances which looks at Defendant's age, sex, education, and mental and physical health
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If a involuntary confession is not excluded what type of error is this?
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Harmless error
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If defendant makes confession because of mental disease is it voluntary?
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Yes
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What is the right to counsel approach and what part of the constitution does it come from?
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Cops cannot question defendant anytime after judicial proceedings have begun (formal charges), unless Defendant has waived his right to his attorney. Comes from the 6th amendment right to counsel
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If defendant has been arrested does he have right to counsel?
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No
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What kind of post-trial assistnace is a defendant entitled to?
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Entitled to first appeal attotney and it is discretionary if he is entitled to 2nd appeal
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Defendant is entitled to effective assistance but what is the test to prove effective assitance (2 part test)?
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1) Lawyer was reasonbaly competent, not best, not worst
2) If demonstrate 1) then must show lack of competence affected outcome of case. |
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At trial when is defendant not entitled to attorney
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when no sentence could be imposed and only a fine could
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When is there a conflict of interest for 2 defendant as violation of the 6th?
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When 2 defendants represented by same attorney, and both defendants have adverse interests
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When can a defendant be entitled to additional assistance in addition to a lawyer such as a specialist?
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When it is demonstated that it is necessary for a fair trial
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How must a defendant waive his right to an attonrey at trial effectively?
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Say it on record with the judge
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When can defendant not waive his right to attorney in trial?
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When he is not competent then judge can force attorney on defendant
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What is the Miranda warning standard? What part of the constitution is it from?
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Any statements made during interrogation that is custodial is inadmissible unless there was first a Miranda warning orally given to the defendant. Comes from the 5th amendment privilege against self-incrimination
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What does it mean to be in custody so the Miranda applies?
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Must not be free to physically leave
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What does it mean to be interrogated so the Miranda standard applies?
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When police know or should know reasonbly that their actions of inquiries are reasonably likley to elicit an incriminating response from the suspect/defendant
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What kind of error is allowing in a statement that had no Miranda warning?
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Harmless
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What kind of stops are never considered custodial?
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Traffic and terry stops
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Does the Miranda warning have to be given exactly and fully for it to be given properly?
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No just the gist of it
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What are the 4 requirements for a waiver of a miranda warning by defendant?
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Knowing, voluntary, and intelligent, and governement has heavy burden in proving this, written waiver not required
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Is intoxication or under influence of drugs defense to waiver of miranda warning by defendant?
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NO
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What kind of test is used to determine if defendant was in custody?
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Objective test
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What kind of statements does lack of Miranda warning apply to?
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Testimonial statements
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If defendant says he wants to be silent then what is consequence?
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then cops can wait for break in time and can give fresh Miranda warning
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If defendant request counsel can cops resume questioning?
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No not unless Defendant initiaites
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If there any use to a excludable statement not given before a Miranda warning was given?
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It can be used to impeach Defendant as prior inconsistent statement against defendant but only if voluntary
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What is the Public Safety exception to the lack of Miranda warning?
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If cop asks defendant something not to interrogate but for public safety such as where is the gun, then walks into evidence
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What is effect of questioning and confession, and then giving Miranda warning and getting a subsequent confession?
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The subsequent confession is inadmissible if the question first warn later situation was not intentional
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Since the right to counsel is offense specific what must the defendant do if he is being charged with 2 separate crimes?
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Make request for counsel twice on both charges
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Does Miranda apply if defendant confesses to informant who defendant does not know is the cops?
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NO
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When does the right to counsel become violated with an informant in jail
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When the informant elcits but not if the defendant voluntarily confesses
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Does the right to Miranda warning become violated if confession to informant?
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NO because Defendant does not know he is being interrorgated
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What kind of statements by the defendant are admissible even though no Miranda warning?
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1. Spontaneous statements not given in response to interrogation 2) routine booking questions
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What is the impact if a second and new police departments continues to question a defendant?
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The impact of an earlier denial of rights carries over to the questioning of the 2nd police department
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When defendant requests counsel, and when defendant wants to remain silent, what is the impact difference?
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With right to counsel, cops cannot ask anything period unless defendant initiates, whereas if defendant just wants to remain silent after Miranda, then after break in time and new Miranda cops can try again.
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WHen is it ok for the cops to deceive the defendant's lawyer suchas cops lie to his lawyer and says they don;t want to question defendant or not inform defendant that lawyer is attempting to see him?
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As long as adversary judicial proceedings have not started
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When there is an interrogation and Miranda was given, but there is a break in time does Miranda have to be repeated?
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No not unless really long break in time
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If a child asks to see his probation officer is this a request for his attorney ?
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NO
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Does a request for an attorney have to be specific or general?
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SPECIFIC suchas saying maybe I should see my attorney is not sufficinet
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When can the cops not re-try questioning of defendant, after he has said he wants to be silent?
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When after the first time they dod not scrupulously honor his request
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When a defendant invokes his right to counsel can cops ask about other unrelated crimes?>
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YES he must waive right to lawyer for each offense
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When a defendant invokes his right to be silent after given the Miranda warning can cops ask him about different offense?
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NO
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Once defendant asks for counsel can cops resume questining when counsel not in presence?
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NO
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If the right to attorney was asked for and confession came in what type of error?
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PLAIN ERROR
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Test to determine if there was a unconstitutional warrantless search?
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1) Did the defendant have a seizure by the gvt concerning a place or thing in which the defednant had a reasonable expectation of privacy?
2) Did the government have a valid warrant? 3) If no valid warrant did they have a valid warrantless search and seizure? |
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What is the general rule regarding searches and seizures?
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If made by gvt then must have a valid search warrant
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To have a reasonable expectation of privacy what must be proved?
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Standing which includes 1) he had owned or had a right to possession of the place searched, 2) the place searched was in fact his home 3) he was an overnight guest of the owner of the place searched or 4) thing was held out to the public
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If sensing enhancing technology uses to look into house is this valid?
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No this is a reasonable expectation of privacy
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Requirements for a valid search warrant:
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1) showing of probable cause 2) Specificity
3) Signed by neutral judge 4) Proper execution with knock |
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What factors make someone have standing and a reasonable expectation of privacy?
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1) owned or had right to possession 2) place searched was in face his home, 3) was an overnight guest of owner
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Does a defendant have expectation of things generally held out to the public like handwriting, smell of luggae, etc?
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NO
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Does one have an expectation of privacy to feel their luggage or smell it?
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Yes to feel but no to smell
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What is the open fields doctrine?
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Areas outside the curtilage such as fence or barn are not subject to constitution or garbage
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WHat is the fly-overs doctrine?
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The police may fy over a field to observe with the NAKED eye but cannot use technlogy to see things or uncosntiutional
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When does search based on search warrant have to end?
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Once purpose carried out and evidence found
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Requirements for search incident to lawful arrest
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1) Arrest had Probable Cause
2) Search contemporanrous with arrest |
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What can be searched in search incident to lawful arrest?
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Only area within Defendant's immediate control (his wingspan), if defendant goes into house wingspan follows him there
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When a defendant is issued a traffic ticket can he be searched?
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NO
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When arrest of defendant in car what is scope of search?
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Passenger compartment but not the trunk
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For a search incident to incarcenation what may police search?
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After valid arrest they can search all his belongings and if car impounded they can search car but must be SOP
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