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55 Cards in this Set

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Exclusionary Rule
Remedy where somebody victim of an illegal search or seizure can have the product excluded.
Limitations on exclusion
1. Innaplicable to Grand Juries, Civil Proceedings and Parole Revocation Proceedings (may be compelled to testify based on illegally seized evidence)

2. Good faith reliance by police on law, defective search warrant, clerical error.

3. Use in impeachment purposes with all illegally seized evidence only Ds testimony, but not others' statements.
Qualification
Search must violate the US Constitution or Federal Statute.

Not an avail remedy in parole revocation proceedings
Good faith defense on exclusion
1. Won't exclude evidence when police rely in good faith on a judicial opinion later changed by another opinion.

2. Won't exclude when police relies in good faith on statute or ordinance later declared unconstitutional.

3. Good faith reliance on defective search warrant
4 Exceptions to good faith reliance where police won't get the benefit of relying in good faith on the warrant.
1. Affidavit so lacking in probable cause no reasonable police officer would rely on it

2. Warrant invalid on its face, fail to state with particularity the place to be searched and things to be seized

3. If officer lied to or misled the magistrate then nobody gets benefit of good faith defense

4. If magistrate has abandoned his judicial role
The Fruit of the poisonous tree doctrine
We will exclude all evidence obtained or derived from exploitation of the illegality.
Three ways for the govt. to break the chain between an initial unlawful police action and evidence
1. Independent source

2. Inevitable discovery

3. Intervening acts of free will on Ds part (hiring and consulting atty, returning to give vol. confession)
Is warrant required for an arrest?
Not generally before arresting someone in a public place, But required for a:

1. Non emergency arrest at home

2. Station house detention for fingerprinting or interrogation
SEARCH AND SEIZURE: How do you know if there is even a 4th amendment right?
1. GOVERMENTAL CONDUCT - public police, private indiv. acting at direction of police,private police not govt. unless deputized w/power to arrest, campus police)

2. Person must have a REASONABLE EXPECTATION OF PRIVACY

a. Must have Standing (homeowner, live on premises, overnight guests)Sometimes standing: (own property seized, legitimately present).

- Passengers who own the car or guns who don't claim ownership no standing.

- Indiv. briefly on someone else's place w/the purpose of cutting drugs for sale - no standing.

b. Item govt' wants to seize is public in nature (sound of voice, handwriting, paint on outside of vehicle, acct. recs. at bank, open fields, monitoring your car, garbage left for collection, airspace, smell of one's luggage)
SEARCH AND SEIZURE: Did police have a search warrant?
If so, test validity

1. If good valid search

2. Not good, can u use good faith defense?
SEARCH AND SEIZURE: First requirement for a valid warrant?
1. Must have probable cause
a. Informers -ok even if anonymous

2. Warrant must state w/particularity place to be searched and things to be seized.

3. Neutral and detached magistrate (magistrate has wholly abandoned judicial role, court clerks ok) good faith defense doesn't save it if mag. not neutral.
SEARCH AND SEIZURE: If no warrant, what are the six exception to warrant requirement?
1. Search incident to lawful arrest (arrest lawful, search contemporaneous in time and place w/arrest, person & wing span)

2. Automobile exception (int. compartments (needs PC, contemporanous, whole car containers ok despite ownership)

3. Plain view - PO must be legitimately present where he views.

4. Consent - voluntary, warrant negates consent but don't have to warn you that you have a rt not to consent, if equal rt. to property anyone can negate consent.

5. Stop and frisk - RS and frisk if believe he has weapon, limited to patdown of outer clothing unless gun.

6. Hot pursuit and evanescent (might go away) evidence
- Fleeing felon
SEARCH AND SEIZURE: Wiretapping and eavesdropping?
All wiretapping and eavesdropping requires a warrant.

Everyone assumes the risk that a person can be wired or will talk.
MIRANDA: Requirements for the Miranda warning requirement?
1. Custody: if at time of interrogation not free to leave [probation interviews and routine traffic stop not custodial]

2. Interrogation: any conduct where the police knew or should have known they might get a damaging statement.

3. Waiver? No waiver from silence or shoulder shrugging
5th AMENDMENT RIGHT TO COUNSEL
Once the D assert his right to terminate the interrogation and request an attorney, re-initiation of interrogation by the police without his attorney present violates his fifth amendment right to counsel.
Exclusionary Rule
Remedy where somebody victim of an illegal search or seizure can have the product excluded.
Limitations on exclusion
1. Does not apply to conduct of grand juries (may be cmpelled to testify based on illegally seized evidence)

2. Not an avail remedy in civil proceedings

3. Use in impeachment purposes with all illegally seized evidence only Ds testimony nt other defense witnesses.
Qualification
Search must violate the US Constitution or Federal Statute.

Not an avail remedy in parole revocation proceedings
Good faith defense on exclusion
1. Won't exclude evidence when police rely in good faith on a judicial opinion later changed by another opinion.

2. Won't exclude when police relies in good faith on statute or ordinance later declared unconstitutional.

3. Good faith reliance on defective search warrant
4 Exceptions to good faith reliance where police won't get the benefit of relying in good faith on the warrant.
1. Affidavit so lacking in probable cause no reasonable police officer would rely on it

2. Warrant invalid on its face, fail to state with particularity the place to be searched and things to be seized

3. If officer lied to or misled the magistrate then nobody gets benefit of good faith defense

4. If magistrate has abandoned his judicial role
The Fruit of the poisonous tree doctrine
We will exclude all evidence obtained or derived from exploitation of the illegality.
Three ways for the govt. to break the chain between an initial unlawful police action and evidence
1. Independent source

2. Inevitable discovery

3. Intervening acts of free will on Ds part (hiring and consulting atty, returning to give vol. confession)
Is warrant required for an arrest?
Not generally before arresting someone in a public place, Exception:

1. Non emergency arrest at home

2. Station house detention for fingerprinting or interrogation
SEARCH AND SEIZURE: How do you know if there is even a 4th amendment right?
1. GOVERMENTAL CONDUCT - public police, private indiv. acting at direction of police,private police not govt. unless deputized w/power to arrest, campus police)

2. Person must have a REASONABLE EXPECTATION OF PRIVACY

a. Must have Standing (homeowner, live on premises, overnight guests)Sometimes standing: (own property seized, legitimately present).

- Passengers who own the car or guns who don't claim ownership no standing.

- Indiv. briefly on someone else's place w/the purpose of cutting drugs for sale - no standing.

b. Item govt' wants to seize is public in nature (sound of voice, handwriting, paint on outside of vehicle, acct. recs. at bank, open fields, monitoring your car, garbage left for collection, airspace, smell of one's luggage)
SEARCH AND SEIZURE: Did police have a search warrant?
If so, test validity

1. If good valid search

2. Not good, can u use good faith defense?
SEARCH AND SEIZURE: First requirement for a valid warrant?
1. Must have probable cause
a. Informers -ok even if anonymous

2. Warrant must state w/particularity place to be searched and things to be seized.

3. Neutral and detached magistrate (magistrate has wholly abandoned judicial role, court clerks ok) good faith defense doesn't save it if mag. not neutral.
SEARCH AND SEIZURE: If no warrant, what are the six exception to warrant requirement?
1. Search incident to lawful arrest (arrest lawful, search contemporaneous in time and place w/arrest, person & wing span)

2. Automobile exception (int. compartments (needs PC, contemporanous, whole car containers ok despite ownership)

3. Plain view - PO must be legitimately present where he views.

4. Consent - voluntary, warrant negates consent but don't have to warn you that you have a rt not to consent, if equal rt. to property anyone can negate consent.

5. Stop and frisk - RS and frisk if believe he has weapon, limited to patdown of outer clothing unless gun.

6. Hot pursuit and evanescent (might go away) evidence
- Fleeing felon
SEARCH AND SEIZURE: Wiretapping and eavesdropping?
All wiretapping and eavesdropping requires a warrant.

Everyone assumes the risk that a person can be wired or will talk.
MIRANDA: Requirements for the Miranda warning requirement?
1. Custody: if at time of interrogation not free to leave [probation interviews and routine traffic stop not custodial]

2. Interrogation: any conduct where the police knew or should have known they might get a damaging statement.

3. Waiver? No waiver from silence or shoulder shrugging
5th AMENDMENT RIGHT TO COUNSEL
Once the D assert his right to terminate the interrogation and request an attorney, re-initiation of interrogation by the police without his attorney present violates his fifth amendment right to counsel.
PRETRIAL IDENTIFICATION: Bases for attack
1. 6th amendment right to counsel (no rt to counsel for photo ID, fingerprints, handwritings).

2. Due process standard - if ID is unnecessarily suggestive and has a substantial likelihood of misidentification. (like-ups, show ups, but no photo show)

Remedy, ID thrown out unless independent source of ID. Rt. to hearing.
PRETRIAL PROCEDURES
Bail issues are immediately appealeable and preventive detention is constitutional.
GRAND JURIES
1. States don't have to use grand juries as a regular part of their charging process.

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

3. Proceedings of GJ are secret, no right to appear or to send witnesses.
RIGHT TO AN UNBIASED JUDGE
1. Financial interest in the outcome in the case.

2. Actual malice against D
Right to jury trial
1. Anytime the D is charged for an offense and the max. authorized punishment exceeds 6 months he has a right to jury trial. -Up to and including, 6 mos. no right.
Right to jury trial for Criminal Contempt
If sum of sentences for criminal contempt exceed 6 months you have a constitutional right to jury trial.
Number and unanimity of jurors
Minimum number is 6 and must be unanimous, but if more than 6 no unanimity is needed.

10-2 ok
93- ok
Cross sectional requirement
You have a right to have the jury pool reflect a cross section of a community.
Race and peremptory challenges
It is unconstitutional for prosecution or defense to exercise peremptory challenges to exclude from the jury prospective jurors based on their race or gender.
Effective assistance of counsel
Claimant must prove:

1. Deficient performance by counsel

2. But for the deficiency, Result of the proceeding would have been different
Guilty pleas
Waivers of the right of jury trial.

Must be entered voluntarily and intelligently
Limitations on guilty pleas
1. Supreme Court will not disturb guilty pleas after sentencing

2. K theory: SC treats plea bargains like contracts, both sides are held to their bargain.
Role of the judge when entering guilty pleas
Judge must inform on the record:

1. The nature of the charge

2. Max. possible penalty and any mandatory minimum

3. Right not to plea guilty

Remedy for not following above: D can withdraw plea.
4 good basis for withdrawing a guilty plea
1. Plea was involuntary

2. Lack of jurisdiction

3. Ineffective assistance of counsel

4. Failure of the prosecutor to keep an agree upon plea bargain
Re- Sentence
A D may not be given a harsher sentence on re-trial after successful appeal
Death Penalty
1. Any death penalty statute that does not give D 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.
Double Jeopardy, when does it attach?
1. At a jury trial when the jury is sworn.

2. At a judge trial when the first witness is sworn.

Not generally attach when proceedings are civil.
Exceptions permitting re-trial
1. Jury is unable to agree on a verdict

2. Mis-trial for manifest necessity

3. Re-trial after successful appeal.

4. Breach of an agreed upon plea bargain by D (plea revoked and original charges reinstated)

5. Additional elements to the offense
When can you prosecute for 2 crimes arising out of the same circumstances without violating double jeopardy?
1. When there are additional elements to the crime

Lesser including offenses: attachment of jeoparty for a greater offense bars retrial for lesser offense.
Separate sovereigns
Double jeopardy does not apply to trials by separate sovereigns. So person can be tried for the same conduct by both the state and federal govt. or by two states, but not by a state and its municipalities.
5th amendment privilege against compelled testimony
Anybody can assert the privilege, a party, witness, defendant in any kind of case, if asked under oath a question which might incriminate him.

Assert the moment the question is asked or waive.
What does 5th amendment protect us from?
Compelled testimony, not other things like giving a hair sample, urine sample.
Limitations on prosecutor's comments at trial
It is unconstitutional for prosecutor to make a negative comment on the Ds failure to testify or his remaining silent on hearing the Miranda warnings.
3 ways to eliminate the fifth amendment privileges.
1. Use and derivative use immunity, guarantees the witness testimony will not be used against the W. But if an independent source, prosec. can prosecute.

2. No possibility of incrimination (like if SOL ran)


3. By Waiver by taking the witness stand
HOT TOPICS
1. EXCLUSION AND LIMITATIONS
2. FRUIT OF THE POISONOUS TREE DOCTRINE
3. SEARCH AND SEIZURE
4. MIRANDA
5. PRE-TRIAL IDENTIFICATION
6. RT TO JURY TRIAL AND GUILTY PLEAS

FOR ESSAYS:

IN ADDITION:
1. INEFFECTIVE ASSISTANCE OF COUNSEL
2. DOUBLE JEOPARDY
3. FIFTH AMENDMENT PRIVILEGE AGAINST COMPELLED TESTIMONY