Study your flashcards anywhere!

Download the official Cram app for free >

  • Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off

How to study your flashcards.

Right/Left arrow keys: Navigate between flashcards.right arrow keyleft arrow key

Up/Down arrow keys: Flip the card between the front and back.down keyup key

H key: Show hint (3rd side).h key

A key: Read text to speech.a key


Play button


Play button




Click to flip

94 Cards in this Set

  • Front
  • Back
Detention - Rule for when an officer may detain and frisk
Police officer may detain and question a person upon his reasonable belief that criminal activity is afoot and may conduct a frisk on the suspect's outer clothing upon belief that the person is armed.
Detention -What is the 4 step Test for Illegal Detention
(1) Was D detained?
(2) Did the officer have an objective basis for believing person was engaged or about to be engaged in criminal activity?
(3) Was stop temporary and no longer than necessary?
(4) If D was frisked, did the officer have reasonable belief that suspect was armed?
Arrest - When does an arrest occur? Must know!
An arrest occurs when an individual is deprived of freedom of movement [physical restriant] for the purpose of commencing a criminal action.

A warrantless arrest must be supported by probable cause.
Arrest - Warrant requirement for home arrest
Except in the case of hot pursuit, a warrant is required to arrest an individual in his home.
Arrest - Police right to arrest outside the home
A police officer has the right to arrest without a warrant outside of the home if he has probable cause to believe that the arrestee committed a misdemeanor in the presence of the officer or committed a felony.
Arrest - Was the arrest illegal?
In order to "arrest" suspect, police must have probable cause to believe suspect committed crime. Probable cause to arrest exists when police possess sufficient facts under circumstances that justify a reasonable belief that an offense has been committed and the person to be arrested committed it. The information must be reasonably trustworthy.
Arrest - Analysis/Test
(1) Was D under arrest?
(2) At the moment of arrest, did officer have probable cause to believe D committed or was about to commit the crime?
Search - What does a search involve?
Under the fourth amendment to the constitution, a search involves government intrusion into space or activities where an individual has a reasonable expectation of privacy.
Search - What does a person have a resonable expectation of privacy to?
An individual has a reasonable expectation of privacy in his person, his home (including the curtilage), in his desk and file cabinets in a private office at work, and in containers for personal effects.
Search - Rule for Standing
To seek exclusion of evidence under the Fourth Amendment, an individual must have standing to object to searches which violate his own reasonable expectation of privacy in the area or premises searched or a substantial ownership interest in the thing seized. One cannot seek exclusion vicariously through another's violated right.
Search - State Action Requirement
The Fourth Amendment rules apply only to searches by police or government agents acting under express government direction. It does not apply to searches by private individuals.
Search of financial records
An individual does not have a reasonable expectation of privacy in his financial records in the hands of a third party.
Search - No search of:
Prison cells, open fields, plain view items, pen registers, physical characteristics, bank records, canine sniff, conversations overheard by police, use of technological aids to view/hear items in public view.
Search - Plain view doctrine
There is no search if property is in plain view from a place where a law enforcement officer has a lawful right to be.
When is a search without a warrant valid (major areas)?
(1) search incident to valid arrest
(2) consent
(3) auto search
(4) plain view
(5) exigent circumstances
Search - Incident to arrest - wingspan
A search incident to an arrest must be essentially contemporaneous with the lawful arrest supported by probable cause and only of the area within the arrestee's immediate control.
Search - Consent
Consent must be voluntary and intelligent under the totality test (no threat or compulsion), police cannot exceed scope of search and it must be given by one with authority. Any person with apparent equal right to use of occupy the property may consent to the search.

There is no duty to warn the suspect that he need not give consent.
Search - Third Party Consent
A third party can give valid consent to search areas over which he has joint access.
Search - Hotel Manager Consent
Under the Fourth Amendment, a hotel manager cannot validly consent to the search of rooms in the hotel which are rented to guests, because guests have a reasonable expectation of privacy in the hotel room as it is analogous to a residence. To be valid, the search must be conducted pursuant to a warrant supported by probable cause, or fall within a warrant exception.
Search - General Rule Automobile Search
Autos and motor homes may be searched if probable cause to believe the auto contans contraband or if officer believes car itself is contraband, or where other exigent circumstances require an immediate search.
Search - Random Auto Stops
The random stopping of automobiles without any probable cuase constitutes an invalid search. However, stops of all vehicles at a fixed checkpoint is are permissible.
Search - Scope of Automobile Search
Once an automobile is stopped with probable cause, the entire automobile, including the trunk and containers, may be searched. The search need not take place immediately.
Search - Container Search in Automobiles
The police may stop a car and search containers within the car if they have probable cause to believe the containers contain contraband.
Search - Exigent Circumstances
Under the exigent circumtance exception, an otherwise illegal warrantless search is valid if police reasonably believe delay would endanger police/public, allow destruction/removal of evidence, or when police are in hot pursuit of a suspect. The emergency that justifies the warrantless search defines the permissible scope of the search, and there must still be probable cause.
Search - Border Searches
The Fourth Amendment does not apply to search and seizures by the U.S. in foreign lands or at the U.S. border. Roving patrols may stop a car if the officer reasonably believes that the car contains illegal aliens.

A search without a warrant is valid if it is incident to protecting the borders of the country.
Search - During lawful detention if safety threatened
A search without a warrant is valid if it is a limited threshold inquiry (stop and frisk) when an officer has reason to believe his physical safety may be threatened.
Search - When is a Stop and Frisk permitted?
A "stop and frisk" is permitted only if there is a suspicion of criminal ity and may extend only to a "pat down" search.

If the "pat down" uncovers an object which may be a weapon, an intrusive search may be made for weapons.
Search - Search & Seizure Clause
The Fourth Amendment search and seizure clause prohibits governmental warrantless searches and seizures with limited exceptions.
Search - Warrant Clause
The Fourth Amendment warrant clause requires that no warrant may issue unless it is supported by probable cause, signed by a neutral and detached magistrate, upon oath or affirmation, which identifies with reasonable particularity the places to be searched and the items to be seized.
Search - What is Probable Cause for a S/S Warrant Based on?
Probable cause can be based on the totality of the circumstances and does not require evidence on both the basis for the search and the reliability of the informant.
Search - Illegal Electronic Surveillance
Federal warrant requirements: probable cause that crime is being or abut to be committed, persons to be overheard named, conversations described w/particularity, limited period and terminated when desired info obtained.

False Friends doctrine holds that if either party to conversation consents, no warrant is required.
Search - Exclusionary Rule & Effect of Illegally Obtained Evidence
The exclusionary rule is a court-created doctine used to suppress evidence and fruits obtained in violation of a defendant's rights under the Fourth and Fifth Amendments, applicable to the states via the Fourteenth Amendment. Exclusion occurs unless the prosecutor can show evidence originated from independent source [Independent Source Rule], that police would have inevitably discovered [Inevitable Discovery Rule] the evidence or that sufficient time intervened causing the taint to dissipate.

Procedurally, defendant makes a motion to sppress evidence outside presence of the jury.
Search - Good Faith Exception
If a magistrate grants a search warrant, and the police execute it believing in good faith that it is valid, the property seized pursuant to the search is admissible.
Fourth Amendment General Rule - Must Know!!
The Fourth Amendment protects people from unreasonable searches and seizures by government actors, not private actors. A search requires a violation of a reasonable expectation of privacy, based on the totality of the circumstances. A seizure requires a meaningful interference with or deprivation of a person's possessory interest. Warrantless searches and seizures are presumptively unreasonable and must be justified by one of the recognized exceptions to the warrant requirement.
Fifth Amendment General Rule - Must Know!!
The Fifth Amendment protects people from compelled self-incrimination. Under Miranda, a suspect is entitled to counsel when he is subjected to custodial interrogation to protect his Fifth Amendment right against compelled self-incrimination. Custody, for Miranda purposes, occurs when there has been deprivation of a person's freedom of action of the degree associated with a formal arrest. Interrogation is express questioning or any word, or actions on the part of police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
Fruit of the Poisonous Tree
Under the fruit of the poisonous tree doctrine, evidence obtained from an unlawful search plus any evidence obtained as a result of the search will be inadmissible.
Confessions - To be admissible
For confessions to be admissible, the Due Process Clause requires that they be a product of rational intellect and free will [voluntary]. Voluntariness is assessed by looking at the totality of the circumstances. Totality of the circumstances include D's age, background, education and circumstances surrounding police interrogation.

Prosecution has the burden to prove voluntariness by a preponderance of evidence.
Confessions - Coerced Confessions
If a confession is coerced, even by a private individual, then it is inadmissible for any purpose. However, if improperly admitted, such admission is subject to the harmless error rule.
Confessions - Miranda
Under the Fifth Amendment privilege against compelled self-incrimination, a person in custody must be given Miranda warnings or their equivalent before interrogation. Warnings must convey substance of constitutional protections.

Without Miranda warnings, statements are inadmissible unless Miranda rights are waived.

If evidence is inadmissible substantively because of a Miranda violation, it is still admissible for impeachment.
Confessions - Miranda when does it apply
Miranda only applies when the suspect is interrogated while he is in custody. Custody occurs when the suspect is deprived of freedom in any significant way.
Confessions - What constitutes interrogation?
Interrogation is words or behavior by the police reasonably likely to elicit an incriminating response from the suspect.
Confessions - Request for a lawyer
If the defendant exercises his Miranda rights by demanding a lawyer, no further questioning can take place until a lawyer is present and the defendant agrees to interrogation after consulatation with his lawyer. However, interogation can resume if defendant initiates.
Confessions - Did defendant intelligently and knowingly waive his Miranda rights?
Defendant may expressly or impliedly waive his/her rights under Miranda, but only if such waiver is knowing, intelligent and voluntary.
Confessions - Miranda Waiver effect
If a defendant agrees to submit to interrogation, he can be questioned about more subjects than the crime which is the primary object of the police interrogation.
Confessions - Public Safety Exception
The public safety exception allows use of un-Mirandized statements where interrogation is based on public safety concerns.
Confessions - Where does Miranda NOT apply?
Miranda is not applicable to roadside stops, booking statements and grand jury proceedings.
Sixth Amendment - Counsel Clause
Under the Sixth Amendment counsel clause, a defendant has the right to counsel in all felonies and all misdemeanors for which he is actually incarcerated.
Sixth Amendment - when does counsel clause attach?
The Sixth Amendment right to counsel attaches during all meaningful stages of criminal proceedings: custodial interrogation [before and after formal charges], arraignment where plea required, post indictment line-up, preliminary hearing, sentencing and probation proceedings, where appeal is a matter of right, psychiatric exam after formal charges are filed.
Sixth Amendment - when does counsel clause not attach?
grand jury, investigation proceedings, prison hearings, summary court martial, collateral hearings, but prisoner has right to law library and free transcript
Sixth Amendment - Was the right to counsel effective?

Strickland Test
The failure of counsel to provide competent assistance is a denial of defendant's Sixth Amendment rights. Test: (1) Did adequacy of counsel fall measurably below the performance ordinarily expected of fallible lawyer. (2) Did it affect the outcome of trial?
Sixth Amendment - Counsel conflict of interest
The defendant hs been deprived of effective assistance of counsel if his attorney has a conflict of interest because he is also representing a codefendant or former client with conflicting interest. [conflict triggers professional responsibility analysis]
Sixth Amendment - Was the right to counsel waived?
Any waiver of right to counsel must be knowingly and intelligently with a heavy burden on state to prove waiver.
Sixth Amendment - Right to self-representation
Defendant has the right to act as his own counsel, and if he does, cannot later complain that he was denied right to counsel. Right to standby counsel is discretionary.
Sixth Amendment - Right to counsel for appeal
A defendant has the right to counsel for one appeal.
Sixth Amendment - Line-ups
Under the Sixth Amendment counsel clause, defendant has a right to counsel at police line-ups [not photo] after he has been formally charged.

If counsel is not present, subsequent in-court identification is inadmissible unless prosecution can show that in-court ID was based on observation other than line-up and witness cannot testify to identification of defendant at tainted line-up.
Due Process Attack - Line-ups
The identification procedure must not be so impermissibly suggestive so as to give rise to a very substantial likelihood of misidentifiction that it offends Due Process standards.

Impermissibly suggestive identifications result in the exclusion of the witnesses line-up and in-court identification, unless an independent source is shown.
Other Constitutional Rights - Right to pre-trial release
Under the Eighth Amendment bail clause, excessive bail shall not be required in non-capital cases. Bail is discretionary in capital cases.

Bail test: a court should balance the nature and circumstances of offense, weight of evidence, defendant's character, financial ability to make bail, and whether defendant will appear.
Other Constitutional Rights -Right to probable cause hearing
Defendant has a right to a probable cause determination within 48 hours of arrest.
Other Constitutional Rights - Speedy Trial
The Sixh Amendment provides that once defendant is formally charged or arrested, he must be given a speedy trial.
Other Constitutional Rights - Test Whether Speedy Trial Rights Violated
Under the Sixth Amendment Speedy trial clause, defendant is not denied a speedy trial solely by the passage of time. He must also be prejudiced.

Test: length of delay, reason for delay, whether defendant demanded early trial or caused delay, and whether delay was prejudicial to fair trial.
Other Constitutional Rights - Right to a Jury Trial
The Sixth Amendment provides the right to an impartial [though not ethically balanced] jury, free of prejudical pretrial publicity, in all trials where imprisonment can exceed 6 months.

Jury of 6 min. required to promote reliability/representation. Unanimity required if 6 jurors. Unanimity required for 12 jurors in federal trials, but unanimity of only 9 required in state trials.

Defendant has a right to a jury trial on any fact used to increase or decrease sentence.
Other Constitutional Rights - Right to a Public Trial
The Sixth Amendment provides for a public trial, not a private one, but the public/press may be excluded if no other reasonable alternatives exist to protect defendant's right to a fair trial.
Other Constitutional Rights - Right to a Public Trial - why trial should be closed
A trial must be public unless there is either a substantial likelihood of prejudice to the defendant or a need to limit access to ensure an orderly proceeding.
Other Constitutional Rights - Right to Jury Trial - Venire composition
The defendant is entitled to be tried by a jury chosen from a venire in which there is no systematic racial exclusion [Batson error]. Neither the defendant nor the prosecutor may systematically exclude individuals of one race from the jury by peremptory challenges.
Other Constitutional Rights - Right to Indictment
The Fifth Amendment provides for the right to indictment by grand jury in federal cases.

At a grand jury, there is no right to counsel, present evidence, cross-exam and confront witnesses, and Miranda protections and the exclusionary rule do not apply. Although a grand jury can consider any evidence but a witness can assert the fifth.
Other Constitutional Rights - Right to Discovery
Due process requires the prosecutor to disclose evidence favorable to the accused after a specific request where such evidence is material to guilt or punishment OR would create a reasonable doubt as to defendant's guilt regardless whether defendant requested it. Prosecutor may request pretrial notice of alibi, statements of defendant, and a witness list if defendant has the same reciprocal rights.
Other Constitutional Rights - Absolute rights to Trial
The defendant has a right to a public trial, but neither the press nor the public have a right to be present at pretrial hearings or possess an absolute right to be present at trial.
Other Constitutional Rights - Post trial stage
The appellat court may constitutionally order a new trial if the verdict is against the weight of the evidence.
Other Constitutional Rights - 6th Amendment Right to Confrontation
Under the Sixth Amendment, a defendant has the right to confront the witnesses against him in all criminal and accusatory proceedings, to use compulsory process to obtain witnesses and present a defense.
Other Constitutional Rights - Sixth Amendment Right to Confrontation - CoD
Under the Sixth Amendment, a statement of a non-testifying codefendant must be excluded unless it can be redacted to exclude references which incriminate defendant or grant a severance.
Other Constitutional Rights - Absent Witness
The Sixth Amendment confrontation clause is satisfied if the defendant had the right to cross-examine the witness at a pretrial hearing and there is a valid excuse for the witness's absence from the trial.
Other Constitutional Rights - Standard of Proof
The prosecution must prove all elements beyond a reasonable doubt. However, the state can place upon the defendant an obligation to plead affirmative defenses and prove them by a preponderance of the evidence.
Other Constitutional Rights - Right to Confrontation entitlement
Under the Sixth Amendment, defendant is entitled to face to face confrontation with accuser and to observe the demeanor of the witness.
Other Constitutional Rights - Eighth Amendment Cruel and Unusual Defn.
The Eighth Amendment prohibits cruel and unusual punishment.
Other Constitutional Rights - Eighth Amendment Cruel and Unusual Test
(1) Applies only to persons convicted of a crime
(2) does the punishment fit the crime and not grossly disproportionate to the severity of the crime?
(3) is the punishment barbaric regardless of the crime?
Other Constitutional Rights - Eighth Amendment Cruel and Unusual + Death Penalty
The Death penalty is allowable if it is imposed under a statute that gives the fact finder the discretion to impose and requires consideration of mitigating circumstances and defendant's background.
Other Constitutional Rights - Sentencing procedure
Defendant is entitled to counsel but not to adversary proceeding and cross-examination; judge can rely on hearsay. In a death penalty case, defendant has a greater right to confront evidence presented against him.
Other Constitutional Rights - Sentencing - Prior Criminal Record
A defendant's criminal record is admissible after the verdict, for purposes of deciding the appropriate sentence.
Other Constitutional Rights - Parole Revocation Hearing
Mini-prompt hearing is required, discovery, notice, opportunity to present evidence [but evidence rules need not apply], qualified right to counsel and findings of fact.
Other Constitutional Rights - Double Jeopardy general rule of who can prosecute
State and federal government are separate soveriegnties: if same act constitutes federal/state crime, each soveriegnty can punish separately.
Other Constitutional Rights - same offense
Two offenses are considered the same offense for purposes of double jeopardy unless each offense contains an element not contained in the other.
Other Constitutional Rights - When does double jeopardy attach?
Jeopardy attaches in a criminal jury trial when the jury is sworn, and in a bench trial, when the first witness begins to testify.
Other Constitutional Rights - When does double jeopardy not attach?
Double jeopardy does not apply when the judge declares a mistrial to benefit the defendant or the appellate court orders a new trial as the result of the defendant's appeal.
Other Constitutional Rights - Double jeopardy - when can prosecution appeal?
The prosecution can only appeal a judgment if a victory for the prosecution will not result in a retrial.
Other Constitutional Rights - Collateral Estoppel
If ultimate fact altready determined by final judgment, it cannot be relitigated in a separate criminal case between the same parties.
Other Constitutional Rights - Guilty Plea Test
The record must affirmatively show that defendant is aware of all elements, aware of penalty, voluntary plea, waived constitutional rights, and is aware of the nature and consequences of the plea.
Other Constitutional Rights - Guilty Plea - Involuntary plea
An involuntary plea can be withdrawn at any time, while a voluntary withdrawl is permissible only before sentence is imposed or imposition of sentence is suspended.
5th Amendment - Rule of Coerced Confessions related to threats
Where actual or threatened physical harm or brutality are involved, there is sufficient coercion to negate confessor's free will and render the confession inadmissible.
5th Amendment - How to determine is Miranda is waived?
To determine if Miranda waiver is voluntary, the court looks at the totality of circumstances by considering both (1) competence of defendant and (2) conduct of police.
Standing of 3rd Party regarding Civil juries
A private civil litigant may raise the equal protection claim of a person whom the opposing party has excluded fro jury service on account of race.
Constitutional Review - Effect of Plain error Rule
If Plain error affects substantial rights to such a degree, a new trial can be granted.
Due Process as applied to Prosecution's Burden of Proof
Due Process Clause protects an accused in a criminal case against a conviction except upon proof beyond a reasonable doubt.
Co-conspirator Standing Rule
A co-conspirator does not have automatic standing to challenge seizure of illegally obtained evidence from co-conspirator.
Consent Search - What factors make consent search valid?
(1) person consenting must have authorization to consent, (2) person's consent must be voluntary, and (3) police may not exceed scope of consent