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

61 Cards in this Set

  • Front
  • Back
Exclusionary Rule: General Rule
constitutional law where product of illegal search or coerced confession excluded
Exclusionary Rule: Limitations on Rule
• Does Not Apply to Grand Juries
• Not Available in Civil Proceedings
• Search must violate federal constitution or federal statue
• Not Available in Parole Revocation Proceedings
• Good Faith Defense to Available
Exclusionary Rule: Good Faith Defense
Police rely in good faith on:

• Judicial Opinion Later Changed by Later Decision
• Statue or Ordinance Later Declared Unconstitional
• Defective Search Warrant
Good Faith Rule: New York Distinction
• Does not recognize good faith reliance on defective search warrant
• If search warrant is no good, cannot save evidence by good faith exception
Use of Excluded Evidence for Impeachment
Confessions in violation of Miranda and illegally seized evidence can be used to impeach the defendant's trial testimony (only applies to defendant's testimony)
The Fruit of the Poisoness Tree Doctrine
• evidence excluded obtained or derived from illegal seizure
• does not apply to evidence derived from Miranda violations
Removing the Taint of the Poison Tree
Government can show:

• independent source of evidence
• inevitable discovery of evidence
• intervening acts of free will by defendant (ex. voluntarily comes back to police)
Arrest Warrants
• generally not required for arrests in public
• required for non-emergency arrest in individual's home
Station House Detention
probable cause to arrest needed to come to station for interrogation or fingerprinting
Sliding Scale of Police Authority: New York Distinctions
Sliding scale of police authority for arrest & detention (what police need)

Request for Information
• can approach and request info except on whim or caprice
• individual has right to not respond or runaway (no pc to arrest)

Common Law Right to Inquire
• founded suspicion criminal activity is afoot
• police can ask questions and detention is brief
• if individual gives explanation police must release him

Stop and Frisk
• reasonable suspicion criminal activity occurring
• police stop at gun point also requires reasonable suspicion

Police Pursuit
• impedes individuals freedom of movement
• reasonable suspicion crime has been, is being, or about to be committed

Full Arrest
• requires probable cause

Probable cause to arrest is present when at the time of the arrest, the officer has within his knowledge reasonable trustworthy facts & circumstances sufficient to warrant a reasonably prudent person to believe the suspect has committed or is commuting a crime

Police Pursuit is considered a seizure in New York
Model for Answering Search & Seizure (Fouth Amend) Questions
Does person have Fourth Amendment right?
• government conduct required
• reasonable expectation of privacy required

Did police have a Valid Search Warrant?
• if warrant no good on MBE, try to save evidence by good faith exception
• if warrant no good on NY Law, no good faith reliance on invalid warrant

Does the Search Fit into one of the Six Exceptions to Warrant Requirements?
Search & Seizures (Fourth Amendment): Government Conduct
• publicly paid police (on or off duty)
• private individual acting at direction of public police
• private paid police who are deputized w/ power to arrest
Search & Seizures: Reasonable Expectation of Privacy
No REP when No Standing to Object to Search

three automatic categories of standing
o own premises searched
o live on premises searched
o overnight guest (important)

two categories that sometimes give you standing
o legitimately present when search took place
o you own the property seize (those are my drugs)
Search & Seizures: Reasonable Expectation of Privacy Possible Fact Patterns
o passengers in cars who do not claim ownership over the car or claim property taken out of the car, do not have standing to object to the search of the car even though present when search taking place
o an individual briefly on the premises of someone else solely for the business purpose of cutting up drug for sale has no standing to object
Search & Seizures: Reasonable Expectation of Privacy Public
No REP to Things Held Out To The Public (Public Nature)

o sound of your voice
o style of your handwriting
o paint on outside of car
o bank account records
o monitoring location car on public street or driveway
o can be seen across open fields (Marijuana Plants)
o can be seen flying over public airspace
o odors emanating for luggage (drug sniffing dogs)
o garbage set out on curb for collection
Search & Seizures: Valid Search Warrant Requirements
• Issued on Showing of Probable Cause
• Warrant must be Precise on its Face (particularity of place and items searched)
• Warrant Issued by Neutral & Detached Magistrate (court clerks are OK)
Search & Seizures: Search Warrants: New York Distinctions
In Order for Search Warrant to be Valid based on Informant Tips:

• underlying facts to allow magistrate information on how informant got information
• must establish reliability & credibility of informant (prior use of informant by police)

NY follows the Aguilar-Spinelli test for search warrant based on informants (stringent), use this test even w/ police tips
Search & Seizures: Exceptions to Warrant Requirement

• Consent
• Hot Pursuit & Evanescent Evidence
• Automobile Exception
• Plainview
• Search Incident to Lawful Arrest
• Stop & Frisk
Warrant Exception: Search Incident to Lawful Arrest (SILA)
o arrest must be lawful
o search contemporaneous in time & place w/ arrest
o search person and areas within wingspan (reach)
o wingspan in car includes interior compartment but not trunk
Warrant Exception: Search Incident to Lawful Arrest: New York Distinctions
Officer must suspect that arrested person may be armed to search containers in the wingspan. Once occupant has been removed from car, police may not remove closed container or bags to look for weapons or other evidence
Warrant Exception: Automobile Exception
o when police have probable cause can search entire car (interior, trunk, package, luggage, locked container) reasonably containing PC item
o example: cannot open a backpack to look for a stolen plasma television
o PC to search car can arise after car stopped but must before anyone searched
Warrant Exception: Plainview
police officer must be legitimately present when doing viewing
Warrant Exception: Consent
o must be voluntary and intelligent
o not voluntary when police say have warrant but do not
o police do not have to warn you have right not to consent

authority to consent: when two or more people have equal right to property anyone of them can consent to its warantless search (police need reasonable belief person can consent)
Warrant Exception: Stop & Frisk
o reasonable suspicion require (less than probable cause)
o weapons always admissible
o non weapons admissible if it could have seemed like weapon or contraband
Warrant Exception: Hot Pursuit & Evanescent Evidence
o hot pursuit of fleeing felon, if police aren't 15 minutes behind than not hot
o police can search anyone's home and anywhere inside house in hot pursuit

Evanescent Evidence = evidence might go away if took time to get warrant
Wiretapping & Eavesdropping
• all wiretapping requires a warrant

Unreliable Ear Exception = everyone assumes risk person talking to will be wired or will consent to the government listening in on the conversation
Miranda Warnings
• needs to be: custody and interrogation (custodial interrogation)
• if custodial interrogation present police must give warning & get waiver
• not applicable to spontaneous statements by defendant
Miranda Warnings: Custody
• at time of interrogation you are not free to leave
• probation interview and routine traffic stops not custodial
Miranda Warnings: Interrogation
any conduct where police knew or should have known might get damaging statement
Miranda Warnings: Waiver
• must be voluntary and intelligent
• no waiver of Miranda by silence or shoulder shrugging
Miranda Warnings: Waiver: New York Distinctions
• Arthur Hobson Rule: NY has specifically ruled length of interrogation and custody are factors in determining voluntariness of confessions
• Under the Arthur-Hobson rule once a criminal defendant in custody requests an attorney, all questioning must cease until the attorney is present. Any waiver of rights made out of the presence of the attorney after such a request is invalid, and any statement taken after such a quest is barred.
Right to Counsel: Fifth Amendment
• Only applies in one situation: when person asks for attorney after Miranda Warning are given, re-initiation of the interrogation by police violates Fifth Amendment.
• not offense specific
Right to Counsel: Sixth Amendment
• all other situations are Sixth Amendment Right to Counsel. Right to counsel attaches at iniation of formal proceedings against defendant
• Offense specific. Attorney only has to be present when asked D about that case.
Right to Counsel: New York Distinctions Main Rule
"Indelible" Right to Counsel Attaches when (greater protection)

• D in custody, police engaging activity overwhelming to lay P & D requests counsel
• Arraignment
• Filing of Accusatory Instrument (grand jury, charge)
• Any Significant Judicial Activity
Right to Counsel: New York Distinctions Other Rules
• Waiver may be obtained from criminal defendant who is known to be represented by an attorney only in the presence of counsel (sometimes is called NY Right to Counsel Rule)
• D released & later arrested unrelated charges, waiver OK made w/o counsel prior charge
• A spontaneous statement made by D may be properly admitted in absence of counsel
• A suspect must specifically ask to speak with an attorney to invoke the suspect's Fifth Amendment rights. However, in New York there is an exception – attempts to keep parents from their infant children held by police may invalidate a confession.
• bail issues immediately appealable
• preventive detention is constitutional
Grand Juries in New York
• 16-23 people. 12 must agree to indict.
• witness granted immunity cannot consult with counsel in grand jury room
• witness who waved immunity can have counsel in grand jury room
• any witness testifying receives transactional immunity (exception: wave immunity)
• transactional immunity: immunize prosecution as to any transaction testifying about
• if defendant request to testify in GJ, must be granted provided D waves immunity
Grand Juries in New York: Grand Jury may indict when
• evidence establishes all element of the crime
• evidence is legally sufficient to establish that D committed crime
• evidence establishes reasonable cause to believe committed crime
Prosecutorial Duty to Disclose Exculpatory Information in New York
Upon demand defendant may obtain for inspection & copying

• his own or co-defendants statement to law enforcement officer (grand jury testimony)
• tapes or bugged conversations intended to be used at trial
• relevant photos and drawings made by police
• reports of physical, mental, or scientific tests
• any other property obtained from the defendant
• the approximate date, time, and place of the offense charged
• anything that the state or fed constitution requires be disclosed by prosecutor
• all specific instances of defendants conduct that prosecutor intends to use at trial to impeach the defendant's credibility
Other Special New York Disclosure Rules (Rosario Disclosures)
• Between the time the jury is sworn in and prosecutor's opening statement, prosecutor must give defense any prior witness statements and criminal records of witnesses
• Before defendant's direct case, must make available any relevant prior statements by defense witnesses. Also, physical, mental or scientific reports defense intends to use.
• Defense must notify prosecutor 30 days from not guilty plea if raising insanity defense. Within 20 days after arraignment prosecutor may demand alibi defense
Failure to Make Rosario Disclosures
D must show to get reversal reasonable possibility nondisclosure adversely contributed to result of the case (show that non disclosure caused material prejudice)
Constitutional Right to Jury Trial
when maximum sentence exceeds six months
The Jury
• minimum six jurors. If six jurors need unanimous decision
• no federal right to unanimous 12 person verdict (12-2, 9-3, OK)
• Cross Section Requirement = right for jury pool reflect cross section community
• Unconstitutional to preemptetory challenge based on race or gender
Infective Assistance of Counsel
• deficient performance and but for such deficiency results would have been different
• deficient performance by counsel and colorable claim person is not guilty
Guilty Pleas
• waivers of Six Amendment right to jury trial
• US Supreme Court unwilling to disrupt guilty pleas after sentences (contract theory)
Taking the Plea
Judge Must Tell Defendant on Record:

• nature of the charge
• maximum sentence and mandatory minimum
• he has right to plea not guilty and demand trial

If there was a mistake during plea taking, D can withdraw plea and plea again
Good Basis for Withdrawing Guilty Plea After Sentencing
• plea was involuntary (judge made mistake taking the plea)
• lack of jurisdiction of court taking plea
• ineffective assistance of counsel
• failure of prosecutor to keep an agreed upon plea bargain
Sentencing: Re-Sentencing
as general rule, D may not get harsher sentence on retrial after appeal
Sentencing: Death Penalty
• D must have chance to present mitigating facts and circumstances or unconstitutional.
• Statue must have no automatic category for imposition of the death penalty
• All relevant mitigating evidence must be admissible or the statue is unconstitutional
• only a jury and not judge may determine the aggravating factors justifying d penalty
Sentencing: Double Jeopardy
Jeopardy attaches at:

• jury trial when jury sworn
• judge trial when first witness sworn
• not normally attached in civil proceedings
Sentencing: Four Exceptions Permitting Re-Trial
• jury is unable to agree on verdict
• mistrial b/c manifest necessity (ex. D is sick)
• retrial after successful appeal
• breach of plea bargain by defendant (plea vacated and original charges reinstated)
What Constitutes the Same Offense
two crimes do not constitute same offense if each requires proof of additional element
What Constitutes the Same Offense: New York Distinction
Transaction Test = D must be charged w/ all offenses arising from single transaction

• except: when offenses have substantial different element, ex. crim possession vs. use
• except: when each offense (crime) involved death, injury, loss to different victims
What Constitutes the Same Offense: Lesser Included Offenses
• being put in jeopardy for greater offense bars retrial for lesser offense
• being put in jeopardy for lesser offense bars retrial for greater offense
• exception: put in jeopardy for batter > victim dies > can be tried murder
What Constitutes the Same Offense: Separate Sovereigns
• state & fed government not same sovereign
• state and other state not same sovereign
• state and locality are same sovereign
Fifth Amendment Privilege Against Self-Incrimination
• can assert in any kind of case (civil or criminal)
• must be under oath and potent to incriminate
• assert 1st time under oath question potential to incriminate or waive future proceeding
Fifth Amendment: Scope of Protection
• does not protect government using our bodies to incriminate us (hair sample, urine)
• protects compelled testimony (lie detector, custodial interrogation)
• unconstitutional for prosecutor to comment D failure to testify or silent on Miranda
Fifth Amendment: Privilege Can Be Eliminated
• Grant of Immunity

Use & Derivate Use Immunity: not prosecute on immunized testimony or derived from but can prosecuted on evidence prior to having immunity

• No Possibility of Incrimination (ex. statue of limitations)
• Waiver (D by taking stand waives 5th Ame to all legitimate subjects on cross)
Fifth Amendment: Granting Immunity: New York Distinction
NY grants Transactional Immunity instead of Use & Derivative Use

• Immunizes from prosecution any transaction witness testifies about (broader)
• Witness cannot be tried for any crime disclosed
• any witness in a legal proceeding other than a grand jury proceeding may refuse to give evidence on the ground it may incriminate him unless granted immunity
Pre-Trial Identification (Lineup & Showups): Two Ways to Attack
denial of right to counsel
o post-charge lineup & showup gives right to counsel
o no right to counsel when showing photographs

denial of due process
o unnecessarily subjective & substantial chance produce misidentification

remedy is to exclude in-court identification
o exception: where the prosecutor that victim/witness has independent source for in-court identification (independent of that bad lineup)
(example: ample opportunity to look at the guy at the time of the crime)
Pre-Trial Identification: New York Distinctions
• no right to counsel exists at investigatory lineups prior to formal prosecutorial action
except when:
• police are aware D is represented by counsel on another charge
• and defendant explicitly request attorney