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

47 Cards in this Set

  • Front
  • Back
Exclusionary Rule (definition)
Remedy of American constitutional criminal procedure, where the person who is a victim of an illegal search or coerced statement can have as a remedy to have the product excluded at criminal proceedings
Limitations on the Exclusionary rule
1. Exclusion does not apply to the conduct of grand juries
- Ex. grand jury witness may be compelled to testify based on illegally seized evidence

2. Exclusion is not an available remedy in civil proceedings

3. Search in question must violate federal Constitution or a federal statute

4. Exclusion is not an available remedy in parole revocation proceedings


6. Use of excluded evidence for impeachment purposes

a) Confessions inadmissible for failure to comply with Miranda warnings may be used to impeach

b) All illegally seized real or physical evidence may be used to impeach ONLY THE DEFENDANT’s trial testimony (not other defense witnesses)
Good Faith Defenses
We will not exclude evidence where

1) Police rely in good faith on a judicial opinion later changed by another opinion

2) Police rely in good faith on a statute or ordinance later declared unconstitutional

3) Good faith reliance on a defective search warrant


1) Affidavit underlying warrant is so lacking in probable cause, no reasonable police officer would have relied on it

2) Warrant is invalid on its face (Fails to state with particularity the place to be search and the things to be seized)

3) Police officer lied to, or misled, the magistrate

4) Magistrate has wholly abandoned his judicial role
Fruit of the Poisonous Tree Doctrine
1) Generally, not only are we going to exclude all evidence that is illegally seized, we will exclude all evidence obtained or derived from that original police illegality

2) Exceptions

a) Independent source: Government obtained evidence from a source independent of the original illegality

b) Inevitable discovery

c) Intervening acts of free will on the part of the defendant

3) If the original police illegality is a MIRANDA violation, real or physical evidence that is discovered as a result is NOT EXCLUDABLE as fruit of the poisonous tree
Fourth Amendment (3 issues)
1) Arrests

2) Search and Seizure

3) Wiretapping and Eavesdropping
1) Arrest warrants are generally not required before arresting someone in a public place

2) 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, to compel you to go to the police station either for fingerprinting or interrogation
Search and Seizure
Does the person have a Fourth Amendment right?

1) Government Conduct?

2) Reasonable expectation of privacy?

Did the police have a search warrant?

1) Was the warrant proper?

2) Warrantless search exceptions?
Governmental conduct (4th Amendment)
Search and Seizure

1) Publicly paid police, on or off duty

2) Any private individual acting at the direction of the public police

3) Privately paid police deputized with the power to arrest
Reasonable Expectation of Privacy

2)Things held out to public
Reasonable expectation of privacy (Standing)
4th Amendment: Search and Seizure

1) You have standing

a) Own the premises searched

b) You live on the premises searched, whether or not you have any ownership interest

c) Overnight guests

2) Close call for standing

a) Legitimately present when the search takes place

b) Own the property seized

3) No standing

a) Passengers in cars who don’t claim they own car or property seized from car

b) Drug dealer briefly on the premises of someone else solely for the business purpose of cutting up drugs for sale
Reasonable expectation of privacy (Things held out to the public)
4th Amendment: Search and Seizure

1) Sound of your voice

2) Handwriting

3) Paint on the outside of your car

4) Account records held by a bank

5) Location of one’s vehicle on public roads or in driveway

6) Areas outside the home and related buildings

7) Garbage left for collection

8) Land visible from a public place, even from a plane or helicopter

9) Smell of one’s car or luggage
Was the warrant proper?
1) Probable cause

2) Warrant must be precise on its face

3) Warrant must be issued by a neutral and detached judicial officer
Probable cause for a warrant
1) Warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises to be searched

2) Use of informants

- You can have a valid warrant based in part on an informers tip, even though that informer is anonymous

- As long as it is enough for the magistrate to make a common sense evaluation of probable cause
Warrant must be precise on its face
State with particularity the place to be searched and the things to be seized
Warrant must be issued by a neutral and detached judicial officer
1) Who is not

a) Magistrate who wholly abandons judicial role

b) State attorney general

c) US attorney general

d) Magistrate paid for every warrant issued

e) Magistrate accompanied police to porn shop to decide which magazines were obscene

2) Who are

a) Court clerks – can issue warrants for violations of city ordinances

3)If no good: try good faith defenses
Warrantless search exceptions
1) Search incident to a lawful arrest

2) Automobile exception

3) Plain view

4) Consent

5) Where two or more people have an equal right to use a piece of property, either one can consent to its search

6) Stop and Frisk

7) Hot pursuit, evanescent evidence, emergencies
Search incident to a lawful arrest
1) Arrest must be lawful

2) Contemporaneous in time and place with the arrest

3) Geographical limitation – the person and his wingspan

- Person and the areas into which he can reach to obtain weapons or destroy evidence

- When a person is validly arrested in a car, their wingspan will include the entire interior of the car and everything in it, but not the trunk
Automobile exception
1) Probable cause to believe the car contains the fruits of crime or contraband

- Can arise after the car is stopped, but before any thing or anybody is searched

2) May search the entire car – interior, trunk and any package, luggage or other container that could reasonably contain the item for which they had probable cause to look whether that item is owned by the passengers or the drivers
Plain view
Police officer must be legitimately present where he does the viewing
Consent to search
1) Must be voluntary and intelligent

- Police saying that they have a warrant negates consent

- Police do not have to warn you that you have a right not to consent

2) Authority
Where two or more people have an equal right to use a piece of property, either one can consent to its search
If they are both present, the one who does not consent governs
Stop and frisk
1) Reasonable suspicion (less than PC)

- Stop if there is reason to believe that criminal activity is afoot

- Frisk is justified only if the officer reasonably thinks that the suspect has a weapon

2) Weapons are always admissible so long as the stopping was reasonable

- How much like a weapon or contraband could it have seemed from the outside
Hot pursuit, evanescent evidence, emergencies
1) Evanescent evidence – evidence that might go away if we took the time to get a warrant

2) Hot pursuit of a fleeing felon

- If police aren’t about 15 minutes behind the felon, not hot pursuit

- Can enter anyone’s home (can keep searching)
Wiretapping and Eavesdropping
Requires a warrant

Unreliable ear – everyone assumes the risk that the person to whom he is speaking has consented to government wiretapping or is wired
Miranda Warnings
1. Right to remain silent

2. Anything he says can be used against him

3. Right to an attorney

4. If he cannot afford, one will be appointed

5. Right to terminate interrogation at any time
Requirements of Miranda Warning
1) Custody

- Legal standard – if at the time of the interrogation, you are not free to leave

- Probation interviews and routine traffic stops are not custodial

2) Interrogation

- Legal definition – any conduct where the police knew or should have known they might get a damaging statement

- More than the asking of question

- Spontaneous statements are not the product of interrogation
What must police do? (Miranda Warning)
Give the warnings and take a waiver

- Waiver must be knowing, voluntary and intelligent

- Silence or shoulder shrugging is not a waiver
Right to terminate interrogation
Fifth Amendment right to counsel

1) Once the defendant asserts his right to terminate the interrogation and requests an attorney, re-initiation of interrogation by the police without his attorney present violates his Fifth Amendment right to counsel

2) Not offense specific

- Saying that he needs assistance of counsel with the process of custodial police interrogation

- All other times that you get a lawyer other than on hearing the Miranda warnings invokes your Sixth Amendment right to counsel, which is offense specific and attorney would only have to be present at the interrogation if the defendant were being asked questions about that attorney’s case
Pretrial Identification
1) Quick check that the victim is remembering the defendant from the crime, not from these proceedings

2) Two substantive bases on which you can attack a pretrial identification techniques

a) Denial of Sixth Amendment right to Counsel
- Post-charge line-ups and show-ups give rise to a right to counsel
- No right to counsel when police go out to show victim photographs

b) Denial of due process
- Some techniques are so unnecessarily suggestive and substantially likely to produce a misidentification that they deny due process of law

3) Remedy Exclude in court identification
- Limitation: Independent source – ample opportunity to look at defendant at the time of the crime. We will permit the witness to make an in court identification despite unconstitutional pretrial identification
Pretrial Procedures
1) Bail

a. Bail issues are immediately appealable

b. Preventive detention is constitutional

2) Grand Juries

a. States do not have to use grand juries as a regular part of their charging process

b. Most states in south and west don’t

c. Exclusion does not apply to the conduct of grand juries

d. The proceedings of grand juries are secret; defendant has no right to appear or send witnesses
Trial Rights
Basic Right to Fair Trial

Right to Trial by Jury

Right to Counsel
Basic Right to a Fair Trial
Right to an Unbiased Judge


1) Financial interest in outcome of case

2) Actual malice against the defendant
Right to Trial by Jury
1) Right attaches whenever the defendant is tried for an offense where the maximum authorized sentence exceeds 6 months (not up to or including 6 months)

- Criminal contempt – if the sum of the sentences for criminal contempt exceeds six months

2) Right to impartial jury

a) Number and Unanimity
- Minimum number – 6
- Unanimous
- No right to 12 person, unanimous (SC has approved 10-2, 9-3 votes)

b) Cross-sectional requirement
- County jury pool must reflect a fair representation of community
- You have no right that your own jury (selected from this pool) be a fair representation of the community

c) Peremptory challenge
- Unconstitutional for the prosecution or the defense to exercise peremptory challenges to exclude prospective jurors on the account of race or gender
Right to Counsel
Ineffective assistance of counsel

1) Requirements

a) Deficient performance by counsel

b) But for such deficiency, the result of the proceeding would have been different

2) Unless you think there is some argument that the person is not guilty, you should deny relief
Taking the Plea
1) Judge must tell defendant on the record

a) Nature of the charge

b) Maximum authorized sentence and any mandatory minimum sentence

c) Right to plead not guilty and demand a trial

2) Contract theory of plea bargaining

- Treats plea bargains like contracts and says that the terms should be revealed in the record and both sides should be held to the deal
Collateral Attacks on Guilty Pleas After Sentence
Supreme Court will not disturb guilty pleas after sentence

Good bases for withdrawing guilty plea after sentence

1) Plea was involuntary

2) Lack of jurisdiction

3) Ineffective assistance of counsel

4) Failure of the prosecutor to keep an agreed upon plea bargain
As a general rule, the defendant may not be given a harsher sentence on retrial after successful appeal
Death Penalty
1. Any death penalty statute that does not give the defendant a chance to present mitigating facts and circumstances is unconstitutional

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

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

4. Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty
When does jeopardy attach? (Double Jeapordy)
1) At a jury trial, when the jury is sworn

2) At a judge trial, when the first witness is sworn

3) Jeopardy does not generally attach when the proceedings are civil
Exceptions Permitting Retrial (Double Jeapordy)
1) The jury is unable to agree on a verdict (hung jury)

2) Mistrials for manifest necessity (ex. Illness)

3) Retrial after successful appeal

4) Defendant breaches plea bargain

- When a defendant breaches a plea bargain agreement, his plea and sentence can be withdrawn and the original charges reinstated
Same Offense (Double Jeapordy)
1) General rule – Two crimes do not constitute the same offense if each crime requires proof of an additional element the other does not

2) Lesser included offenses

a) Being put in jeopardy for the greater offense bars retrial for any lesser included offense

b) Being put in jeopardy for the lesser offense bars retrial for the greater offense

c) Exception: In jeopardy for battery. Victim then dies. You can be charged with murder
Separate Sovereigns (double jeopardy)
Double jeopardy bars retrial by the same sovereign:

1) State to federal

2) State to state
Who can assert privilege against compelled self-incrimination?
1. Anyone; defendant, witness, etc.

2. Anyone asked under oath a question a response to which might tend to incriminate them

- It must be asserted the very first time the question is asked, otherwise you will have waived your privilege in all subsequent criminal proceedings
What type of case can someone assert privilege against compelled self-incrimination?
Any case
Civil, legislative, etc.
Scope of protection of the privilege against compelled self-incrimination
1) Does not protect us from government using our bodies to incriminate us
- Ex. hair sample, blood sample

2) It does protect us from compelled testimony
- Ex. lie detector test, undergo custodial police interrogation
Prohibitions against burdens on assertion of the privilege against compelled self-incrimination
It is unconstitutional for the prosecutor to make a negative comment on the defendant’s failure to testify or his remaining silent on hearing the Miranda warnings
Elimination of privilege against compelled self-incrimination
1) Grant of an immunity

- Use and Derivative Use Immunity

- Cannot use immunized testimony and derivatives of that against the witness

- But can be used against witness if the evidence was derived from a source independent of the immunized testimony

2) No possibility of incrimination

- Statute of limitations has run on the underlying crime that you are concerned about

3) Waiver

- By taking the witness stand, defendant waives the privilege against all legitimate subjects of cross-examination