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127 Cards in this Set

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Wolf v. Colorado stated what and was overruled by what?
DPC does not require states to exclude evidence obtained in violation of 4th Am. Overruled by Mapp v. Ohio.
What is the purpse of the exclusionary rule? (ER)
Deterrence. Essential to the right of privacy.
Is there a good faith exception to the ER?
Yes. U.S. v. Leon. “Particularly when law enforcement officers have acted in objective good faith or their transgressions have been minor, the magnitude of the benefit conferred on such guilty s offends basic concepts of the criminal justice system.”
What is the test for officer's good faith exception?
"obejectively reasonable" “whether a reasonably well-trained officer would have known that the search was illegal despite the magistrate’s authorization.” Consider all circumstances, including whether warrant application had previously been rejected by another magistrate.
Can police wiretap a public phone booth without a warrant?
No. Katz. 4th protects people not places.
Rule from Katz?
Search and seizure takes place when police violate a privacy on which the defendant "justifiably relies."
Harlan's two part test from Katz?
a. Person mush have exhibited an actual (subjective) expectation of privacy.
b. The expectation must be one that society is prepared to recognize as reasonable
Greenwood trash case rule?
“[P]olice cannot reasonably be expected to avert their eyes from evidence of criminal activity that could have been observed by any member of the public.”
Why was Florida v. Riley and the helicopter case ipheld by the SC?
We would have a different case if flying at that altitude were contrary to law or regulation. But anyone could’ve done this; nothing in record suggests that helicopters flying at 400 ft are sufficiently rare to justify R’s claimed privacy expectation.
When is it okay to use a beeper or tracking device?
Up to the point where it reveals information that could have been obtained through visual surveillance. (US v. Karo)
Why is thermal imaging not OK?
Technology is not in public use! People have a reasonable expectation to be free from such technology.
What is the Spinelli test for CI tip?
1. Tip must adequately reveal the informant’s basis of knowledge.
2. Tip must provide facts sufficient to establish its veracity (cred of informant AND reliability of informtion)
What test did Gates set out for CI tips?
Totality of the circumstances.
Veracity, reliability, and basis of knowledge are highly relevant, but they shouldn’t be viewed as entirely separate and independent requirements to be rigidly exacted in every case. A deficiency in one can be compensated for by a strong showing of another.
What is the role of the magistrate under the Gates approach when dealing with CI tips?
a fair probability that contraband will be found. Reviewing court should simply determine whether there was a substantial basis for magistrate’s finding of PC.
What kind of magistrate do you need to issue a search warrant?
"neutral and detatched"
What are the two requirements for a search warrant?
1. Particular description of the place to be searched
2. Particular description of the things to be seized
What happens when police make a mistake with a search warrant?
An erroneous execution of a search warrant is constitutionally acceptable when police make a reasonable effort to ascertain and identify the place intended to be searched. (Maryland v. Garrison)
When is it OK for police not to knock in executing a search warrant?
Case by case.
No-knock entry is justified if police have a reasonable suspicion that knocking and announcing will, under the particular circumstances, be dangerous or futile, or that it will inhibit the effective investigation by, for example, allowing destruction of evidence
What does plain view allow?
Items found in plain view may be seized where it is immediately apparent to the police that they have evidence before them
Is a warrantless arrest illegal if the officer could have obtained one?
No. An officer was permitted to arrest w/o a warrant for crime committed in his presence or a felony not committed in his presence if there was reasonable grounds for the arrest. (FEDERAL CASE)
Can a suspect be taken into custody without a warrant?
“We hold that the 4th Am requires a judicial determination of PC as a prerequisite to extended restraint on liberty following arrest.” Grand jury hearing counts. (Gerstein v. Pugh)
What is the bright line length of time a suspect can be held without a PC hearing under Gerstein?
48 hours. But this is flexible.
Are searches incident to arrest limited by Terry? If not, where may the search take place?
No. Search incident to “lawful custodial arrest” is a traditional exception to 4th Am warrant exception. Search may be made of the person of the arrestee and of the area within the arrestee’s control.
What must bail be fixed upon to pass muster under the 8th?
Based upon standards relevant to the purpose of assuring the presence of the defendant. (Stack v. Boyle)
Is "preventive" detention without bail allowable under the 8th?
Yes if the government demonstrated by clear and convincing evidence that no release conditions would reasonably assure the safety of any other person and the community.
Is a prelim hearing a critical stage needing counsel?
Yes. because the prosecution was required to show probable cause, and if counsel were present, counsel could have been able to disprove probable cause as well as develop evidence.
Must a grand jury be free from systematic exclusion of defendant's race when a diversified trial is given?
Intentional discrimination in the selection of grand jurors is a grave constitutional trespass, possible only under color of state authority, and wholly within the State's power to prevent. (Vasquez)
May hearsay be presented to the Grand Jury?
Yes. (Costello)
Under Whren, may police stops be pretextual if there is any reason to stop?
Yes. All that must be reasonable is the traffic stop itself.
Does the exclusionary rule apply to stops made in violation of the equal protection law, if it was so shown?
NO. No ER under EPC--evidence still would get in.
What is the Robinson rule?
Search incident to arrest is lawful if made of the person and of the area within the arrestee's control.
Searches of arrested persons are usually made when suspect is deliverd to station house under what teo bases?
1. Delayed Robinson
2. As an inventory incident to booking to safeguard the property of the accused and to ensure that weapons and contraband aren’t introduced into the jail
Must police use the less intrusive means stationary inventory searches--i.e., to protect the arestee's belongings?
No, even if they are available. (LaFayette)
If the goal of the police is to issue a citation and not arrest, can there be a search?
No. There is no threat to officer and there is no need to preserve evidence (speeding).
Does the Fourth Amendment prohibit a warrantless arrest for a minor traffic offense punishable by only a fine?
No. If there was intent to conduct a custodial misdemeanor arrest and not just issue citation--may search.
What is the Belton rule for search incident to arrest?
A search incident to arrest under Belton is valid when a "recent occupant" of a car is arrested outside a car, because this situation presents the same dangers of harm to the arresting officer and risk of destruction of evidence as when an arrestee is in a car.
Must the "recent occupent" under Belton be within the reach of the car's interior to search the car?
No. There is no "bright line" rule.
Under Chimel, is a warrantless search of the defendant's house constitutionally justifed as incident to a warranted arrest?
NO. Only what is "within his immediate control".
When is a “protective sweep” permissible? What is the two-part rule?
(1) There must be articulable facts that, taken together w/ rational inference from those facts, would warrant a reasonable, prudent officer in believing that the area to be swept harbors an individual posing a danger to those on the arrest scene. (2) Protective sweep is not a full search of the premises, but may extend only to a cursory inspection of those spaces where a person may be found. The sweep lasts no longer than necessary to dispel the reasonable suspicion of danger and, in any event, no longer than it takes to complete the arrest and depart the premises.
Why was Vale wrong?
SC didn't allow cops to search inside house when defendant arrested outside house even though mother and brother arrived during arrest. No time to get warrant!
Does a warrantless entry of a home for the purpose of arresting with probable cause violate the 4th Amendment
Yes. Absent exigent circumstances, the threshold of the home may not be crossed without a warrant. Unequivocal constitutional demand.
What is the hot pursuit rule?
The 4th Am does not require police officers to delay in the course of an investigation if to do so would gravely endanger their lives or the lives of others.
May police seize drugs in plain view from third party home when executing an arrest warrant for defendant?
No. And, cannot enter third person home without PC determined by detatched magistrate!
Why do automobiles and motor homes have less protection than homes?
1. Ready mobility
2. Lower expectation of privacy than in home or office.
Does "ready mobility" in the automobile exception mean actual liklihood that the vehicle will move?
No. Impounded car could be searched under this less stringent standard.
Is the search of a container or package okay if within the car during its warantless search?
YES. If PC justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the car and its contents that may conceal the object of the search. (Ross)
What is the scope of a warantless car search?
Permissible scope of a warrantless car search is defined by the object of the search and the places in which there is PC to believe that it may be found.
Are passenger's belongings also fair game in a warrantless car search?
Police officers w/ PC to search a car may inspect passengers’ belongings found in the car that are capable of concealing the object of the search.
Does the 4th Am require police to obtain a warrant to open a sack in a movable vehicle simply because they lack PC to search the entire car?
No. police may search w/o warrant if search is supported by PC.
What is the Belton rule?
When police make lawful custodial arrest of occupant of vehicle, they may, as a contemporaneous incident of that arrest, search the passenger compartment of the automobile. Police may also search the contents of any containers found within the passenger compartment.
Does the 4th Am require suppression of evidence discovered during inventory search?
No. Reasonable police regulations relating to inventory procedures administered in good faith satisfy 4th Am.
What did Terry establish?
Officer must be able to point to specific and articulable facts that justify the intrusion
What standard is Terry decided under?
Objective standard: Would the facts available to the officer at the moment of the search or seizure warrant a man of reasonable caution in the belief that the action taken was appropriate?
What is the rule of Terry?
There must be a narrowly drawn authority to permit a reasonable search for weapons for the protection of the police officer, where he has reason to believe he is dealing w/ armed and dangerous individual, regardless of whether he has PC to arrest the individual for a crime
What is the holding in Terry?
Where officer observes unusual conduct that leads him reasonably to conclude in light of his experience that criminal activity may be afoot… he can search the outer clothing of such persons in an attempt to discover weapons that may be used to assault him.
What must be present in a tip that can lead police to stop and frisk?
Some indicia of reliability. Basis of knowledge and veracity.
Reasonable suspicion requires that tip be reliable in its assertion of illegality, not just in its tendency to identify a determinate person.
When can high-crime areas be considered in reasonable particularized suspicion?
When coupled with more such as flight--cops may stop to resolve ambiguity.
When does a "stop" become a seizure?
“an investigation must be temporary and last no longer than is necessary to effectuate the purpose of the stop. Similarly, the methods employed should be the least intrusive means reasonably available to verify or dispel the officer’s suspicion in a short period of time.”
What is a test for seizure?
would a reasonable person feel free to leave, decline questions?
Must an officer inform defendant of right not to consent to search?
No.
What did U.S. v. Place stand for?
Seizure of property and liberty interst = seizure of person
Is there a 4th Am right in your voice if called before the grand jury?
No b/c it is constantly exposed to the public. (same for handwriting)
May a statute force defendant to produce incriminating evidence at trial?
No. 5th Am.
May a suspect lie to the grand jury and be okay because they were no Mirandized?
No. Not entitled to Miranda for grand jury. Although he could refuse to answer incriminating questions, if he chose to answer those questions falsely, he could be prosecuted for perjury and those statements could be used against him
May a defendant be compelled to testify against himself if given full immunity at grand jury?
Yes.
May a client's lawyer be forced to turn over incriminating documents on his client that his client gave to him?
Yes. If they were not the client's private papers because enforcement against a client's lawyer could not compel the client to do anything, particularly not to be a witness against himself.
Does the Fifth Amendment privilege against self-incrimination protect a witness from being compelled to disclose the existence of incriminating documents that the Government is unable to describe with reasonable particularity?
a person responding to subpoena, pursuant to a court order granting immunity, could not be prosecuted on the basis of information in the documents produced if the government did not have any prior, independent knowledge of the documents.
Does a notice of alibi rule violate the 5th Am?
No. It enhances the search for truth--it does nothing more than speed up this disclosure.
When must a court reverse on a prosecutor's failure to disclose material?
When the omission is so material that it deprived the defendant his 5th am right for a fair trial
What are the standards for Materiality in determining material omissions under Bagley?
1) Persecutor knows of used perjured testimony
2) Prosecutor fails to disclose certain evidence favorable to the accused
3) Prosecutor received specific and relevant request and fails to make a response
Under Brady v. Maryland, what are reversible ommissions by the prosecutor?
Material that is
1. favorable/exulpatory
2. material
-- reasonable probability that had this evidence been disclosed, the result would be different
-- a probability sufficient to undermine confidence in the outcome
Does the 6th am allow examination of children's sexual history to use for impeachment?
No. In camera decision to determine if there is any exculputory evidence.
What is vindictiveness by prosecutor?
When you exercise your right as allowed and the pros comes back and punishes you for it
Must a prosecutor go through with his promise in plea bargain?
when a plea rested on a promise or agreement of the prosecutor, such promise had to be fulfilled.
Does the acceptance of the prosecutor's proposed plea bargain create a constitutional right to have the bargain specifically enforced?
No.
Must the government enthusiastically folow the plea baragin?
No. As long as the general terms of the agreemenet are abided, there is no need to add emphasis.
Must the Government disclose material impeachment evidence prior to entering a plea agreement with respondent?
No. Knowing and voluntary acceptance of the plea agreement is valid without.
What must the state prove to demonstrate that consent for a search was “voluntarily” given?
Look at totality of circumstances. Knowledge of right to refuse consent is on factor to consider, but not the sine qua non of effective consent.
How is conset coerced?
by explicit or implicit means, by implied threat or covert force. Consider subtly coercive police questions and the possibly vulnerable subjective state of the person who consents
Search given by consent is defined as what?
demonstrate that consent was in fact voluntarily given, and not the result of duress or coercion, express or implied.
Can ex-girlfriend’s consent legitimize the search?
Yes. Anyone w/ common authority has right to consent; others assume risk that this will occur--must be a "reasonable" assumption by police
What is the objective standard test for third person consent?
Would the facts available to the officer at the moment warrant a man of reasonable caution in the belief that the consenting party had authority over the premises?
Why did Berger v. New York strike down the NY electronic surveillance statute?
No supervision. No PC (only reasonableness). Continued for indefinate time w/o showing cause even after conversation.
Can an agent without warrant or court order record conversations of defendant when undercover as an informant?
Yes. It’s no different if he records them electronically with device on his person or through transmitter, or if other agents electronically monitor it. Defendant always assumes the risk.
Are the States required to provide counsel to the indigent?
Yes. “Gov’ts, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime. Lawyers to prosecute are everywhere deemed essential to protect the public’s interest in an orderly society… [L]awyers in criminal courts are necessities, not luxuries.”
When does the 6th am right to counsel attach?
at critical stage of prosecution. person is entitled to counsel, assuming the prosecution has reached a critical stage, at or after the time that judicial proceedings have been initiated against him, whether by way of formal charge, preliminary hearing, indictment, information, or arraignment, presumably as early as the first appearance before a judicial officer.
If you offer appeals as a matter of right, must you provide counsel?
Yes. “[A] State can, consistently with the 14th Am, provide for differences so long as the result does not amount to a denial of due process or an ‘invidious discrimination.’ Absolute equality is not required… [But] where the merits of the one and only appeal an indigent has as of right are decided w/o benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.”
Does the State have an obligation to pay for counsel for one who seeks discretionary review or certiorari to the Supreme Court?
No. There are differences between the trial stage and the discretionary appeal sought here. Def, not the state, initiates the appeal. Thus, appointed counsel is used on appeal as a sword, not a shield
What does the EPC require in regards to poor people filing appeals to the SC?
only to assure the indigent def an adequate opportunity to present his claims fairly in the context of the State’s appellate process--not SC.
Must a district court abide by defendant's wish for counsel under all circumstances?
No. Presumption may be overcome by a showing of a serious potential conflict of interest. Upon such a showing, the district court may reject the chosen counsel, even if all defendants involved are willing to waive their right to conflict-free representation. This is permitted because a defendant's Sixth Amendment right to chosen counsel is a qualified right that must be weighed against the district court's legitimate wish that its judgments remain intact on appeal.
What are the reasons for allowing self-rep under the 6th Am?
Counsel's "assistance" can benefit only a willing D, and a D's preference for self-representation, should be honored out of respect for the autonomy of the individual D who must bear the cost of the decision
How can a defendant self-rep in trial?
The D should be allowed to "knowingly and intelligently" waive the right to counsel, as long as the D is made aware of the "dangers and disadvantages" of self-representation.
When and who can terminate self-rep in trial?
A trial judge may terminate self-representation by defendants who engage in serious and obstructionist misconduct, and may appoint "standby counsel" over a D's objection to serve either as counsel in case of termination, or as an advisor for a who D requests help.
Is it possible to lose your right to be at your own trial?
Yes. The court held that defendant could lose his constitutional right to be present at his trial if, after the judge warned him he would be removed, he continued to be disruptive.
The admission of a testimonial out-of-court statement, offered against a criminal defendant, unconstitutional unless what two possibilites?
(1) the witness testifies at the proceeding and is available for cross-examination or; (2) the witness is unavailable and the defendant has had a prior opportunity for cross-examination.
Does the Confrontation Clause apply to nontestimonial hearsay?
No indication. States should be flexible.
Is the Confrontation Clause violated by the admission of a nontestifying codefendant's confession with a proper limiting instruction when, as here, the confession is redacted to eliminate not only the defendant's name, but any reference to her existence?
No.
Is defendant denied 6th and 14th am when not allowed to use juvenile file to impeach?
Yes. Petitioner's right of confrontation is paramount to the State's policy of protecting juvenile offenders, and any temporary embarrassment to Green by disclosure of his juvenile court record and probation status is outweighed by petitioner's right effectively to cross-examine a witness.
Is the instruction to the jury about the presumption of innocence needed?
the trial court's refusal to give petitioner's requested instruction on the presumption of innocence resulted in a violation of his right to a fair trial as guaranteed by the Due Process Clause of the Fourteenth Amendment
What is the proper test for jurors in voir dire for capital cases?
whether a juror's views on capital punishment would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath
Standards for prox mis?
the relevant question is whether the comments so infected the trial with unfairness as to make the resulting conviction a denial of due process
What is the presumption in any challenged action of effective counsel?
Such action might be considered sound trial stategy.
When does the presumption of innocense disappear in criminal trial?
Where, as here, a defendant has been afforded a fair trial and convicted of the offense for which he was charged, the constitutional presumption of innocence disappears.
Do claims of actual innocence based on newly discovered evidence allow for federal habeas relief?
Thus, claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the course of the underlying state criminal proceedings
Is there a 14 am DP guarantee that a showing of innocence entitles one to a new trial?
Because state legislative judgments are entitled to substantial deference in the criminal procedure area, criminal process will be found lacking only where it offends some principle of justice so rooted in tradition and conscience as to be ranked as fundamental.
Should courtroom identifications of an accused at trial be excluded from evidence because the accused was exhibited to the witnesses before trial at a post-indictment lineup conducted for identifications purposes without notice to and in the absence of the accused’s appointed counsel?
Yes.
Why are lineups so important to require a lawyer?
are riddled w/ innumerable dangers and variable factors that might seriously derogate from a fair trial. Problems of eyewitness identification can be magnified by the way the prosecution presents the suspect to witnesses. Can be highly suggestive
What is the test for in-court indentifications?
Gov’t must show by clear and convincing evidence that the in-court identifications were based upon observations of the suspect rather than the lineup identification. Proper test is the Wong Sun test: “whether, granting establishment of the primary illegality[,] the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently indistinguishable to be purged of the primary taint.”
Can the prosecutor comment on the defendant's refusal to cooprerate in a line-up or does this violate 5th?
b. Since the lineup and taking of exemplars aren’t protected by privilege against self-incrimination clause, the prosecution can comment on suspect’s refusal to cooperate
Does the Wade-Gilbert rule extend to identification testimony based on a police station showup that took place before def had been indicted or otherwise formally charged?
No. Right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated, “whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.”
What is the rule for allowing in out of court ids that may be a bit suggestive?
The second approach relies on the totality of the circumstances, is more lenient and ad hoc, allowing admission of confrontation evidence if, despite the suggestive aspect, it possess certain features of reliability
What are some factors to consider in out-of-court IDs?
Reliability is the linchpin in determining admissibility. Factors to consider: opportunity of witness to observe criminal at time of crime; witness’s degree of attention; accuracy of prior description; level of certainty; time between crime and confrontation.
What is the inevetiable discovery doctrine?
Even if a but-for test can’t be satisfied, the challenged evidence is admissible if the gov’t learned of the evidence from an independent source. A variation on the independent source doctrine is the “inevitable discovery” or “hypothetical independent source” doctrine, which asks not whether the police actually acquired certain evidence by reliance on an independent source, but whether evidence in fact obtained illegally would inevitably or eventually or probably have been discovered lawfully.
What rights are waived by a guilt plea?
oRight against self-incrimination
oRight to a jury trial
oRight to confront accusers
oCertain rights of appeal
What is a voluntary plea?
1) understand charges, elements of the crime
2) intelligently waiving the constitutional rights
What is the Alford plea?
Defendant pleads guilty to crime to avoid death penalty, but simultaneously claims he’s innocent
Is there a Constitutional right to plead guilty?
NO. The court does not have to accept the plea.
What does a Court use to determine if a speedy trial has been denied?
whether or not the def had asserted his right. However, a waiver of that right could not be presumed, except as to delay caused by petitioner. The conduct of both the prosecution and petitioner were to be balanced, taking into account petitioner's assertion of the right, prejudice to petitioner, the length of delay, and the reasons for the delay.
In a speedy trial claim, must you demonstrate prejudice on the part of the pros?
No. Delay alone can be enough.
Is defendant entitled to speedy trial claim during pre-indictment phase?
pre-indictment delay was wholly irrelevant for amend. VI purposes because the constitutional right to a speedy trial attached only after defendant was accused by indictment or information, or was actually restrained by arrest and detention to answer for a criminal charge
Does the 6th right to trial extend to petty offenses?
No. defendant was entitled to a jury trial whenever the crime with which he or she was charged carried a maximum period of incarceration that was greater than six months
Despite being a petty offense and usually not allowable for jury trials, how might a defendant still secure one?
still be entitled to a jury trial if he or she could demonstrate that other statutory penalties reflected a legislative judgment that the crime was a serious one
Is 5 out of 6 okay for a jury to convict on nonpetty cases?
No. conviction for a nonpetty offense by only five members of a six-person jury presents a threat to preservation of the substance of the jury trial guarantee and justifies requiring verdicts rendered by such juries to be unanimous
May defendant waive a jury trial despite the permission of the court and/or gov?
The Court found no evidence that the common law recognized that defendants had the right to choose between a court and a jury trial.
Did the trial judge commit reversible error at voir dire by refusing petitioner's request to question prospective jurors on racial prejudice?
The court held that a capital defendant accused of an interracial crime was entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias.
What is the standard to judge racial exlusion in voir dire?
if the trial court decided that the facts established prima facie, purposeful discrimination and that the prosecution did not proffer a neutral explanation for its actions, petitioner's conviction had be reversed
When can gender be used to exclude potential jurors?
So long as gender does not serve as a proxy for bias, unacceptable jurors may still be removed, including those who are members of a group or class that is normally subject to"rational basis" review and those who exhibit characteristics that are disproportionately associated with one gender