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

80 Cards in this Set

  • Front
  • Back
What is the exclusionary rule?
a judge-made doctrine that prohibits the introduction of evdience obtained in violation of D's 4th, 5th, and 6th amendment rights.
What is the limitations to the exclusionary rule?
1. GOOD FAITH reliance on law, defective search warrant or clerical error
2. confessions inadmissible for failure to comply with MIRANDA warning may be admissible
3. use of illegally obtained evidence used to impeach D's credibility if he is on the stand: both illegally seized real or physical evidence can be used
4. does not apply to grand juries, civil proceedings, internal agency rules, and parole revocation proceedings
What are the four exceptions to the good faith defense to the exclusionary rule?
1. affidavit unerdlying the warrant is so LACKING IN PROBABLE CAUSE that no reasonable officer would have relied on it
2. the warrant was DEFECTIVE ON ITS FACT
3. the police officer or government lied to or MISLEAD THE MAGISTRATE
4. if the magistrate has "WHOLLY ABANDONED HIS JUDICIAL ROLE"
What is the scope of the exclusionary rule?

What is the doctrine called?
Will exclude illegally seized evidence, as well as all evidence obtained or dervived from the explotation of that evidence

Fruit of the poisonous tree doctrine
What is the way that to the fruit of the poisinous tree doctrine can be overcome? (Big picture)
Showing breaks in the causal chain
What are the specific exceptions to the fruit of the poisonous tree doctrine?
1. by showing an INDEPENDENT SOURCE of the original legality
2. INEVITABLE DISCOVERY: would have been inevitable that police would find the evid. anyway
3. INTERVENING ACTS OF FREE WILL on the part of the D
Where the original police illegality is a ______ violation, real or physical evidence found as a result of exploiting the violation is not excludable as fruit of the poisonous tree
Where the original police illegality is a MIRANDA violation, real or physical evidence found as a result of exploiting the violation is not excludable as fruit of the poisonous tree
What is the law of arrests for arresting someone....

1. in a public place?
2. in their own home?
3. for fingerprinting or for interrogation?
1. PUBLIC PLACE: Arrest warrants are generally NOT required before arresting someone in a public place
2. OWN HOME: A NON-EMERGENCY arrest of an individual in his own home REQUIRES an arrest warrant
3. STATION HOUSE DETENTION: police need PROBABLE CAUSE to arrest you or compel you to come to the police station either for fingerprinting or for interrogation
What does a person have to show in order to have a 4th amendment right?
1. governmental conduct AND
2. person in question must have a reasonable expectation of privacy
What are the key types of governmental conduct for the purposes of 4A rights?
1. publically paid police, on or off duty, no matter what doing
2. any private individual acting at the direction of the public police
3. any privately paid police ONLY IF DEPUTIZED WITH POWER TO ARREST YOU
What is the overall thing that a person must have in order to object to the legality a search and seizure
When does a person always have standing to object to the illegality of a search and seizure?
1. OWNED the PLACE searched
2. LIVE on the PREMISES searched
When does a person SOMETIMES have standign to object to the illegality of a search and seizure?
1. LEGIMITATELY PRESENT when the search takes place
Do passengers in a car who don't claim they own the car and don't claim the property taken out of the car, but were present at the time the things taken have standing to object?
Do drug dealers briefly on the premises of someone else, solely for the business purpose of cutting up drugs have standing to object?
For set of things do people never have standing? (broad)

What are the specific things? (specific)
People never have standing to object to things held out to the public.

i. sound of your Voice
ii. Account records held by your bank
iii. Garbage set out on the curb for collection
iv. monitoring the location of your Car on a public street or in your driveway
v. style of your Handwriting
vi. Odors emanating from your luggage
vii. Paint from the side of your car
viii. anything that can be seen across the Open field
ix. anything that can be seen from Flying over
What are the broad requirements for a warrant? (3)
1. showing of probable cause
2. precise on its face
3. issued by a neutral and detached magistrate
Can probable cause necessary for issuance of a warrant be established by anonymous tip?
Yes, you can have a valid warrant BASED ON PART by anonymous informer's tip if THE SUM OF EVERYTHING (what police observed, the content of the anonymous letter) was enough for magistrate to make common sense evaluation of PC
What does it mean that a warrant must be precise on its face?
Must state with particularity the place to be searched and the things to be seized
When is magistrate neutral for the purpose of warrant issuance?

When not neutral?
Neutral: court clerks who issue warrant violations for city ordinances

Not Neutral:
a. attorney generals
b. magistrates getting paid based on issuance of warrants alone
c. magistrate who goes w/police to the scene
What are the exceptions to the warrant requirement? (broad)

1. Consent
2. Hot pursuit
3. Evanescent evidence
4. Automobile exception
5. Plain view
6. Searches incident to lawful arrest
7. Stop and frisk
Requirements for search incident to a lawful arrest
1. arrest must be lawful
2. search and arrest must be contemporaneous in time and place
3. search must be limited to person's wingspan
-Exception: where a person is validly arrested in a car, wingspan includes interior of the car and everything in it, but not the trunk
What is the automobile exception to search and seizure?
1. police must have probable cause to search
2. can search any package, luggage, or other container that could reasonably contain the item for whichthey had PC to look, whether package is owned by passengers or the driver
3. can arrest only after item is seized
Can PC to search a car arise AFTER the car is stopped?
Yes, but it must arise before anybody is searched
What is the requirement for plain view?
For plain view, the police officer must be legitimately present when he or she does the viewing of the evidence
What are the requirements for consent for a search and seizure?
For search and seizure, the consent must be
1. voluntary AND
2. intelligent
If police say they have a warrant, and the warrant is in fact no good, AND the defendant consented to the search and seizure, what happens?
consent is negated.
Where two or more people have an equal right to use the property, is there consent if...

only one is present and that person consents?

both people are present and one consents but the other doesn't?

Do police have to warn you that you have a right not to consent to a search?
What is the general requirement for a stop and frisk?
Reasonable suspicion

it's less than probable cause
What always establishes sufficient justification for a stop and frisk?
Where the person is armed and dangerous, police have reasonable suspicion to stop and frisk the person
Are weapons always admissible as evidence?
Yes, so long as the stopping was permissible
What is the standard for admissibility of non-weapons found during a frisk?
How much the non-weapon felt or seemed like a weapon or contraband from the outside
What is the rule for whether police are in hot pursuit or not?
if the police are more than 15 minutes behind the fleeing felon --> not hot pursuit
Is there a limitation to what police can do if they enter someone's home on a hot pursuit theory?
No, there is no limitation to what police can do in a home when in hot pursuit.
What is the general rule and exception for wiretapping and eavesdropping?
Rule: all wiretapping and eavesdropping requires a warrant.

Exception: everyone in this society assumes the risk that the person to whom they are speaking either
a) consents to the go.v't wiretapping OR
b) will be wired
When is the Miranda warning required?
Anyone in CUSTODY of the government and accused of a crime must be given Miranda warnings prior to INTERROGATION by the police.
When is a person in custody for the purposes of Miranda?


If the person is not free to leave

Examples: at jail house, in a hsoptial bed, in jail on another charge

Counter-example: routine traffic stop, probation interview
Miranda does not apply to _______ not made in response to interrogation
spontaneous statements ("blurts")
What is an interrogation for the purposes of Miranda?
any conduct in which the police knew or should have known that they might hav egotten a damaging statement
What must a Miranda waiver be?

What never counts as a waiver to Miranda?

Silence or shoulder shrugs are never waivers to Miranda
When is 5A violated?
Once D
1) asserts his right to terminate the interrogation AND
2) requests an attorney

the initiation of interrogation by police violates 5A right to counsel
Is 5A offense-specific?
Someone hears their Miranda warning and says "I want my lawyer." What amendment applies?
5A right to counsel
Someone, outside of the time they hear their Miranda warning, says "I want my lawyer." What amendment applies?
6A right to counsel
Under 6A right to counsel, when must an attorney be present?
Attorney need only be present if the D is being asked questions about that attorney's case
Is 6A offense specific or non-offense specific?
What are the two ways in which a D can successfully attack a pre-trial idenfication?
1. Denial of 6A right to counsel for post charge line-up and show-ups
2. Denial of due process: some pre-trial ID techniques ar eso UNNECESSARILY SUGGESTIVE to produce a SUBSTANTIAL LIKELIHOOD OF MIS-IDENTIFICATION that they deny due process of law
What is the remedy for successful attacks on pre-trial identification?
Exclude the in-court identification
What is the purpose of the body of law surrounding pre-trial identification?
to give a quick check that the victim or witness is remembering the person from the crime and not from the proceeding
How can a prosecutor defeat the claim for remedy?
The prosecutor can defeat the claim for remedy by shoring an independent source

Most common independent source: opportunity to observe at the time of the crime (i.e. witness viewed D up close for 40 minutes during the crime)
What system does California use instead of a grand jury?
filing an information -- a written accusation of the crime prepared and presented by the prosecutor
What is the role of grand jury in the federal system?
for indictments; not incorporated into 14A
Does exclusion apply to the conduct of grand juries?
For grand juries, does the D have a right to appear or send witnesses?
Is there a right to an unbiased judge? Why?

What muts a judge have in order to show that he is biased
Yes, due process is violated where the judge is biased.

Judge is biased if he has actual malice or a financial interest in the outcome of the case
When does the right to jury trial attach?
The constitutional right to a jury trial attaches any time that the D is tried for an offense, the maximum authorized sentence for which exceeds 6 months
When is a jury trial not required?
A jury is not required for the trial of a crime that carries a maximum sentence of up to and including 6 months
When is a jury trial required for criminal contempt?
if the sum of sentences for criminal contempt exceed 6 months --> get the right to go back and have a jury trial
What is the minimum number of jurors required?

Must jurors be unanimous?
if have 6 jurors that work and use 6, must be unanimous.

No. 10-2 and 9-3 jury verdicts have been approved
What is incompetency?
It is the D's incompetence to stand trial, and depends upon his mental condition at the time of the trial. If he gains it later, he can then be tried and convicted.
What is a D's right concerning the jury pool? What is it called?
Cross-sectional requirement.

D has a right ot have the jury SELECTED from a representative cross-section of the community;

However, the D does not have the right to proportional representation fo all groups on HIS PARTICULAR JURY
Can a prosecutor or the defense exercise pre-emptory challenges to exclude from the jury prospective jurors on account of their race or gender?
What are the standards for ineffective assistance of counsel?

Use these on an essay
Defendant asserting inefficient counsel must show
a. deficient performance by counsel AND
b. but for such deficiency the result of the proceeding would have been different (e.g. D would not have been convicted or his sentence would have been shorter)
Where D intends to provide guilty plea, what must happen and by whom?
The Judge, addressing the D PERSONALLY in open court on the record, must:
1. inform D about the nature of the charge
2. inform D of the maximum sentences and any mandatory minimum sentences
3. inform D that he has the right not to plead guilty and that if he does, he waives the right to trial
What is the remedy for failure to meet the standards for taking a plea?
Withdrawal of the plea and pleading anew
USSC will not disturb a guilty plea after ____.

USSC has adopted ____ theory of plea bargaining

How does one withdraw a plea?
1. plea was involuntary
2. lack of J
3. ineffective assistance of counsel
4. failure of prosecutor to keep an agree-dupon plea bargain
Can D be given a harsher sentence on retrial after successful appeal?
What is the thing to say about death sentence on an essay?
Any death penalty statute that does not give the D a chance to present mitigating facts and circumstances is unconstitutional.

There can be no autoamtic category for imposition of the death penalty.

The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.

Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.
When does double jeopardy attach...

at a jury trial?
at a bench trial?
at a civil trial?
Jury trial: whenthe jury is sworn.

Bench trial: when the first witness is sworn.

Civil trial: not usually
What are the exceptions for permitting a retrial?
1. jury is unable to agree on a verdict (in CA, must be unanimous)
2. mistrials for manifest necesity (health of D)
3. retrial after successful appeal
4. breach of an agreed-upon plea bargain by the D
2 crimes do not constitute the same offense for the purposes of double jeopardy where each crime...
requires proof of an additional element that the other crime does not
Does double jeopardy prevent a trial for lesser offense where the D has already been tried for an offense containing the elements of the lesser offense?
does double jeopardy prevent a trial for a more severe offense where the D has already been tried for a lesser offense that contains the elements of the greater offense?

Exception: where D tried for battery and victim dies, he can be retried for murder
Where a D is tried in 2 different J's for the same crime, when does it a represent double jeopardy problem for...

State + Fed trials?
State + state trials?
state and municipality trials?
State + Fed trials: OK
State + state trials: OK
state and municipality trials: Not OK - double jeopardy attaches
Who can assert 5A privilege against compelled testimony?
Anybody askd under oath (W, D, P) can assert 5A privilege in any case (civil, criminal, admin) any question that might TEND TO INCRIMINATE them.
What happens if you fail to assert your 5A privilege in a non-criminal hearing?
If you fail to raise your 5A privilege and answer the question, you cannot later raise the privilege for the scope of those questions.
Does 5A privilege apply to physical evidence?


Does 5A privilege apply to testimonial evidence?
No. 5A does not apply to urine samples, hair sample, document production, words used for ID purposes

Yes, 5A does protect us from a lie detector test
How can the 5A privilege be eliminated?
1. grant of an immunity: although can't use immunized testimony or anything derived to convict, can be prosecuted based on EVIDENCE SHOWN BEFORE the immunity
2. there is no possibility of incrimation (ex: SOL has already run on the potential crime)
3. waiver: a criminal D by taking the stand wavies the 5A privilege as to all legitimate subjects of cross examination