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79 Cards in this Set

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somebody who’s been the victim of an illegal search or coerced confession can have the evidenced excluded from criminal prosecution
Limitations on Exclusion
Grand Jury

Civil Proceedings

Federal Requirement

Parole Proceedings

Good Faith Defense

Use of Excluded Evidence for Impeachment Purposes
Limitations on Exclusion - Grand Jury
i. Grand Jury: Does not apply to the conduct of grand juries, so a grand jury witness may be compelled to testify based on illegally seized evidence
Limitations on Exclusion - Civil Proceedings
ii. Civil Proceedings: Not an available remedy in civil proceedings
Limitaitons on Exclusion - Federal Requirement
iii. Federal Requirement: In order to qualify for exclusion the search in Q must violate either the FEDERAL const. or a FEDERAL statute.
Limitations on Exclusion - Parole Proceedings
iv. Parole Proceedings: Not an available remedy in parole revocation proceedings
Limitations on Exclusion - Good Faith Defenses
v. Good Faith Defense: 3 parts
1. We will not exclude evidence where the police rely in good faith on a judicial opinion later changed by another opinion.
2. We will not exclude evidence where the police rely in good faith on a statute or an ordinance later declared unconst.
3. Good faith reliance on a defective search warrant***
Four Exceptions to the Good Faith Defense to Reliance on a Defective Search Warrant
i. The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would rely on it.
ii. The warrant is invalid on its face.
iii. The police office lied to or misled the magistrate.
iv. The magistrate has wholly abandoned his judicial role. **
Limitations on Exclusion - The Use of Excluded Evidence for Impeachment Purposes
vi. The Use of Excluded Evidence for Impeachment Purposes: Confessions inadmissible for a failure to comply w/ the Miranda warnings MAY BE ADMITTED TO IMPEACH the credibility of the ∆ TRAIL TESTIMONY.
1. NOW: all illegally seized real or physical evidence.
Fruit of the Poisonious Tree Doctrine
We are also going to exclude all evidence obtained or derived from the original exploitation of that police illegality.
i. Three Ways The Gov’t Can Break the Chain
1. Independent Source: Show it had an independent (of that original police illegality) source for the evidence.
2. Inevitable Discovery: We would inevitably have discovered this evidence anyway.
3. Intervening Acts of Free Will On the Part of the ∆:
ii. Miranda Evidence: Where the orig. police illegality was a Miranda violation any real or physical evidence discovered as a result is NOT fruit of the poisonous tree.
LAW OF ARREST - Arrest Warrants (general rules)
a. Arrest Warrants: Generally not required b/4 arresting someone in a public place. But the NON EMERGENCY arrest of an individual in his own home requires an arrest warrant.
i. Station House Detention: Police need probable cause to arrest you & compel you to go to the police station for fingerprinting or interrogation.
SEARCH AND SEIZURE (general info)
Applies to the states through the 14th Am.
SEARCH AND SEIZURE - Method of Analysis / Major Themes
First - Does this peson have a fourth am. right?
- Government Conduct
- Reasonable Expectation of Privacy
* Automatic
* Sometimes
* Never

- If yes, the person has a fourth am. right.

Second - Did the police have a search warrant?
- If yes, test the validity of the search warrant. (3 req)
- If it's good, you have a valid search.
- If it's no good, see if you can save it by the good faith defense on a defective search warrant.
- If the police have not warrant or can't save, see if you can fit it into one of the 6 exceptions to the warrant requirement.
SEARCH AND SEIZURE - Does this person have a fourth am. right?
Must be governmenet conduct and have a reasonable expectation of privacy.
S&S - 4th Am. Rt - Government Conduct
i. Governmental Conduct: 4th Am only applies to the gov’t
1. Publicly Paid Police
2. Any Private Individual Acting @ the Direction of the Public Police
3. Privately Paid Police – NO, unless they are deputized with the power to arrest you.
a. Deputized w/ the Power to Arrest – includes security at a private university, usually.
S&S - 4th Am. Rights - Reasonable Expectation of Privacy
1. NOT if you have no standing to object to the legality of the search
i. If you own the premises searched.
ii. If you live on the premises searched, regardless of ownership interest.
iii. Overnight guests have standing to object to the place they are staying. **
i. If you are legitimately present when the search takes place.
1. BUT passengers in cars that don’t claim to own the car and don’t claim that the property sized was theirs - did NOT have standing. **
2. BUT A drug dealer, briefly on the premises of someone else, solely on the premises for the purpose of cutting up drugs for sale - does NOT have standing to object to the search of those premises. **
ii. If you own the property seized.
2. NOT if the item the gov’t wants to seize from you that you hold out to the public every day.
i. The sound of your voice
ii. The style of your handwriting
iii. The paint on the outside of your car
iv. Account records held by a bank – these are public records
v. Monitoring the location of your car on a public street or in your driveway.
vi. Anything that can be seen across the open fields – marijuana garden.
vii. Anything that can be seen from flying over in the public airspace.
viii. The odors emanating from your luggage
ix. Garbage set out on the curb for collection.
S&S - Search Warrant?
If so test the validity
S&S - If the police had a search warrant, was it valid? (3 req)
Probable Cause

Precise on Its Face

Neutral and Detached Magistrate
Probable Cause (re. valid warrant)
a. PROBABLE CAUSE – P/C must be supported by belief that a sizable evidence will be found on the premises to be searched. This is a very fact specific inquiry.
i. The Use Of Informers:
1. Anonymous Informer → You can have a valid warrant based in part on an informers tip, even though that informer is anonymous. If based on a “common sense” evaluation of probable cause. (most likely on Essay).
Precise on It's Face (re. Valid Warrant)
b. PRECISE ON IT’S FACE – the warrant must state w/ particularity the place to be searched and the things to be seized.
Neutral and Detached Magistrate (re. Valid Warrant)
c. NEUTRAL AND DETACHED MAGISTRATE – must have been issued by a neutral and detached (from the competitive business of law enforcement) magistrate.
i. Not Neutral: (1) state A/G, (2) if the magistrate is only paid for every warrant issued, (3) if magistrate accompanies police and determines what should and should not be seized (porno case).
ii. Neutral: court clerks
7 Exceptions to the Warrant Requirement
Incident to Lawful Arrest
The Automobile Exception
Plain View
Stop and Frisk
Hot Pursuit
Evanescent Evidence
Exceptions to the Warrant Requirement - Incident to Lawful Arrest
i. The arrest must be lawful otherwise the search is unlawful.
ii. The search must be contemporaneous in time and place w/ the arrest.
iii. Geographic scope – the person and his wingspan.
1. Example → When a person is validly arrested in a car their wingspan will include the entire interior compartment of that car and everything in it but not the trunk of the car.
Exceptions to the Warrant Requirement - The Automobile Exception
i. The police must have PROBABLE CAUSE (reasonably believe contained the fruits of crime or contraband, same as for a warrant)
1. → P/C can arise after the car is stopped but it must arise before anyone or thing is searched.
ii. THEN they may search the whole car and can open any package, luggage or other container that could reasonably contain the item for which they had P/C to look.
Exceptions to the Warrant Requirement - Plain View
i. Officer must be legitimately present where he/she does the viewing.
Exceptions to the Warrant Requirement - Consent
i. Must be voluntary AND intelligent (another fact specific inquiry).
a. Saying they have a warrant negates consent BUT the police do not have to warn you that you have a right not to consent.
b. Authority to Consent – where two or more people have an equal right to use a piece of property, any one of them can consent to its warrantless search.
i. BUT if both are present and one says they can and the other says they can’t, can’t governs.
Exceptions to the Warrant Requirement - Stop and Frisk
i. Requires reasonable suspicion. This is LESS than P/C.
ii. THEN they can do a pat-down.
1. IF they find a weapon – weapons are always admissible so long as the stopping was reasonable.
2. IF they find evidence of crime but not a weapon -
a. KEY Q: how much like a weapon or contraband cold it have seen from the outside? (hard box of burglar tools, baseball sized cocaine – yes).
Exceptions to the Warrant Requirement - Hot Pursuit
i. Hot pursuit of a fleeing felon.
1. Tip → If the police aren’t about 15 min b/hind the fleeing felon, don’t call it hot pursuit.
2. Note → If the police are really in hot pursuit they can enter anyone’s home and seize whatever they find there.
Exceptions to the Warrant Requirement - Evanescent Evidence
g. EVANESCENT EVIDENCE – evidence that might go away if we took the time to get a warrant (under fingernails).
Wiretapping And Eavesdropping
All wiretapping a eavesdropping requires a warrant
i. Exception → The Unreliable Ear: Everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired.

A person must be read their Miranda rights if they are in custody and prior to interrogation.
i. Custody: A person must be in custody to trigger the need for the Miranda warning. A person is in custody if at the time of the interrogation if you are NOT FREE TO LEAVE.
1. Probation Interviews and Routine Traffic Stops – these are not custodial, so you can be questioned w/out Miranda and what you say can be used against you as evidence in a criminal trial.
ii. Interrogation: Miranda warnings are NOT REQUIRED prior to a spontaneous statement. Includes more than the asking of question, it is any conduct where the police knew or should have known they might get a damaging statement.
Effect of Custody and Interrogation
b. If C& I → Police Have to Give a Warning and Give a Waiver
i. Waiver: Must be knowing, voluntary and intelligent – not from silence or shoulder shrugging.
Fifth Am. Right to Counsel
c. Fifth Am. Right To Counsel: once THE ∆ asserts his right to terminate the interrogation and requests an attorney re-initiation of interrogation on any topic by the police w/out his attorney present, violates his 5th Am. right to counsel. NOT OFFENSE SPECIFIC!!
6th Am. Right to Counsel

All other times (other than hearing the Miranda warnings) when you get a lawyer invokes the 6th Am. right to counsel which is offense specific. So the attorney would only have to be present at the interrogation if the ∆ were being asked Q’s about that ∆ case.
If an Indigent is Refused Counsel
1. If an indigent is refused counsel they can be fined but NOT imprisoned b/c the right applies to misdemeanors only when imprisonment is imposed.
Informant Rules
MIRNADA: USSC has specifically held Miranda warnings need not be given b/4 questioning by a cellmate unknown to defendant to be covertly working for the police b/c the coercive nature of police interrogation that Miranda seeks to avoid is not present.

6TH AM: → 6th A right to counsel is violated when an undisclosed, paid government informant is placed in ∆ cell, after ∆ has been indicted or charged, and deliberately elicits statements from the ∆ regarding the crime for which the ∆ has been charged.
Two substantive basis on which you can ATTACK a pretrial id technique. ** The only purpose of this body of law is to give us a quick check that the witness or victim is remembering the ∆ from the crime and not from the proceedings.
PRETRIAL IDENTIFICATION - Denial of the Right to Counsel
a. Denial of the Right to Counsel: Post-charge line-ups and show-ups (one-on-one) give rise to a right to counsel. But there is NO right to counsel when they go out to show a witness or victim photographs
b. Denial of Due Process: Some pretrial ID techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification they deny due process.
c. Remedy: We will exclude the in-court identification → BUT the prosecutor can offer an INDEPENDENT SOURCE to support the victim’s in-court id in order to defeat the exclusion. Most common – ample opportunity to view the ∆ during the crime. Then we will permit the witness or victim to identify the person, even if there has been a denial of counsel or due process.
(1) Bail issues are immediately appealable. (2) preventive detention is constitutional.
a. (1) States do not have to use grand juries as a regular part of their charging process (most states don’t use; use information).
b. (2) Exclusion does not apply to the conduct of grand juries.
c. (3) The proceedings of grand juries are secret; the ∆ has no right to appear or send witnesses.
Right to an Unbiased Judge

6th Am. Right to Confront Witness
RIGHT TO A FAIR TRIAL - Right to an Unbiased Judge
i. Bias: either financial interest in the outcome of the case or actual malice against the ∆.
RIGHT TO A FAIR TRIAL - 6th Am. Right to Confront Witness
Under the 6th Am. a defendant has the right to confront an adverse witness. Therefore, introduction of a co-defendant’s confession at a joint trial violates an accused right to confront witnesses unless the confessing defendant testifies.
RIGHT TO A JURY TRIAL - When Does It Attach
a. When Does it Attach? Whenever the ∆ is tried for an offense, the max. authorized sentence of which, exceeds 6 mos. If the offense is up or including 6 mos there is no constitutional right to jury trial.
RIGHT TO A JURY TRIAL - Criminal Contempt
b. Criminal Contempt: if the sum of the sentences exceeds 6 mos you have a constitutional right to go back and receive a jury trial.
RIGHT TO A JURY TRIAL - Number and Unanamity of Jurors
i. Rule: Must have at least 6 and if 6, they must be unanimous. BUT there is no constitutional right to a unanimous 12 person jury verdict. S/C has approved a decision of 9/3 and 10/2.
RIGHT TO A JURY TRIAL - Cross Sectional Requirement
d. Cross-Sectional Requirement (6th Am): You have a right to have the riverside county jury pool reflect the cross section of the community but I have no right to have my own jury reflect a cross-section of the community.
i. Exception → A defendant can complain if significant segments of the community are excluded from his jury. (viol of 6th am. rights).
RIGHT TO A JURY TRIAL - Peremptory Challenge
It is unconst. for the pros. or the def. to exercise peremptory challenges to exclude prospective jurors on account of the race or gender.
Juror exclusion - Death Penalty
i. Death Penalty→ A state may not automatically exclude for cause all prospective jurors who express a doubt or scrulple about the death penalty. It must first be determined whether the juror’s views would prevent him from being impartial were he to serve on the panel. Unless yes – the juror cannot be excluded for their position.
Ineffective Assistance of Counsel
i. Requirements: (1) Deficient performance of counsel and, (2) but for such deficiency the result of the proceeding would have been different. So unless you think there is some argument that the person is not guilty, deny them IAC.
Guily Pleas
Since 1970 S/C has pursued 2 agenda (1) S/C will not disturb guilty pleas after sentence and (2) we have the K theory of plea bargaining.
K Theory of Plea Bargaining
i. K Theory of Plea Barging: S/c treats plea bargains as K so the terms should be included in the agreement and adhered to.
Taking the Plea
Judge must, on the record address ∆ personally, and tell him...
1. The nature of the charge.
2. **Tell ∆ the maximum sentence and any mandatory min. sentence
3. That he has a right to plead not guilty and demand a trial.
4. Remedy → ∆ may withdraw his plea and plea again.
Collateral Attacks on Guilty Pleas After Sentance
G/R – S/C will not disturb guilty pleas after sentence BUT there are 4 GOOD BASIS FOR WITHDRAWING G/P AFTER SENTENCE →
i. Plea was involuntary – there was a mistake in the plea taking ceremony.
ii. Lack of jurisdiction
iii. Ineffective assistance of counsel
iv. ** Failure of the prosecutor to keep an agreed upon plea bargain. Breach of an agreed upon plea bargain.
Sentancing / Re-Sentancing After Successful Appeal
As a g/r the ∆ may not be given a harsher sentence on retrial after a successful appeal. To protect from chilling the effect of the ∆ right to appeal.
a. Any death penalty statute that does not give the ∆ a chance to present mitigating facts and circumstances is UNCONST.
b. There can be no automatic category for imposition of the death penalty, or the statute is UNCONST.
c. The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is UNCONST.
d. Only a jury and not a judge may determine the aggravating factors justifying the imposition of the death penalty.
DOUBLE JEOPARDY: When does it attach?
i. At A Jury Trial - when the jury is sworn;
ii. At A Judge Trial - when the first w. is sworn.
iii. Civil Trial – jeopardy does not generally attach when the proceedings are civil. This is why you could have a criminal proceeding followed by a civil proceeding on the same event.
DOUBLE JEOPARDY: Exceptions Permitting Retrial
i. Jury Is Unable To Agree On A Verdict - Most states require a unanimous 12/person jury – either way.
ii. Mistrials for Manifest Necessity – e.g. ∆ gets appendicitis. Jury is mis-tried and ∆ is re-tried when gets out of the hospital.
iii. Retrial After Successful Appeal – this is not double jeopardy. (see above for more details).
iv. Breach of an Agreed Upon Plea Bargain by the ∆: *** When a ∆ breaches a plea bargain agreement his plea his sentence can be withdrawn and the original charges reinstated.
DOUBLE JEOPARDY - What constitutes the same offense?
As a g/r two crimes do not constitute the same offense if each crime requires proof of an additional element the other does not.
DOUBLE JEOPARDY - Lesser Included Offenses
e.g. Robbery = Larceny + Assault. Lesser included offenses → Larceny & Assault. Being tried/put in jeopardy for Robbery precludes you from being tried fro a lesser offense (larceny), the opposite is also true.
i. Exception: Battery the victim dies → murder – that’s okay.
DOUBLE JEOPARDY - Separate Sovereigns
bars double jeopardy for the same offense BY THE SAME SOVEREIGN. (e.g. state and feds - not the same sovereign; two different states – not the same sovereign; but state and locality are the same soverign)
5TH AM. PRIV AG. SELF INCRIMINATION: When can it be asserted?
Any person in any kind of case. Anybody asked under oath in any kind of which a Q the response of which might tend to incriminate they can assert the 5th Am. privilege.
i. You MUST assert it the first time the Q is asked or you will have waived it as to all subsequent prosecutions. (civil to criminal or v.v.).
Does not protect us from having the govt use our bodies in lots of ways to incriminate us (hair sample, e.g.). It only protects us from compelled testimony (lie detector test, undergo custodial police incrimination).
5TH AM. PRIV. AG. SELF INCRIMINATION: Limits on the Prosecution
It is Unconst for the pros to make a negative comment on the ∆ Failure to testify or his remaining silence after (anytime after) hearing the Miranda warnings.
Grant of an Immunity
No Possibility of Incrimination
i. Grant of an Immunity: Use and derivative use immunity. We will not use your immunized testimony or anything derived from it to convict you. But we can prosecute you on evidence we can show we had before that immunity was granted.
ELIMINATION OF THE 5TH AM. PRIVILEGE - No Possibility of Incrimination
The SOL has run on the underlying crime you are concerned about.
∆ by taking the w. stand waives the privilege as to all legitimate subjects of cross examination.
A ∆ has an absolute right to waive counsel and represent himself. The waiver must be knowing and intelligent and the defendant need not be found capable of representing himself effectively.
RIGHT TO REPRESENT ONESELF - Where the State Provides Counsel
a. Where the state provides counsel in cases of indigence, it may then seek reimbursement from a convicted ∆ who subsequently becomes able.
RIGHT TO REPRESENT ONESELF - Violation of D's Right to Represent Himself.
b. Violation of D’s right to represent himself will result in (1) a reversal of D’s conviction. (2) The state cannot recover from D the cost of an attorney who was appointed against D’s will and in violation of his right to represent himself.
DPC requires that a confession be voluntary in order to be admissible. Voluntariness is assessed by looking at the totality of the circumstances.