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54 Cards in this Set
- Front
- Back
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Which amendments are binding on the states
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8th Amendment - grand jury and excessive bail
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4th amendment
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prohibition against unreasonable searches and seizures and the exclusionary rule
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exclusionary rule
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applies to 4th 5th and 6th amendment
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fruit of the poisonous tree
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evidence obtained from exploitation of the illegally obtained E must also be excluded
exceptions: 1. evidence obtained from a source independent of the original illegality 2. intervening act of free will by the defendant 3. inevitable discovery |
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limitations on the exclusionary rule
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1. inapplicabe to grand juries, civil proceedings, internal agency rules and parole revocation proceedings
2. good faith reliance on law, defective search warrant or clerical error 3. use of excluded E for impeachment purposes 4. miranda violations |
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enforcing the exclusionary rule
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a D is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge out of the hearing of the jury
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Fourth amendment
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provides that people should be free from unreasonable searches and seizures - governmental seizures of persons, including arrests
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what constitutes a seizure
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occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government
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Arrests
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occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation
Need: 1. probable cause 2. warrant for home arrest for a nonemergeny arrest |
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probable cause
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trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime
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investigatory detentions (AKA stop and frisk)
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if police have a reasonable articulable suspicion of criminal activity or involvement in a completed crime supported by articulable facts
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automobile stops
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police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated
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Roadblocks
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Valid if roadblocks:
Every car - stop cars on the basis of some neutral articulable standard and be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility |
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pretextual stops
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if the police reasonably believe a driver violated a traffic law they they may stop the car even if their ulterior motive is to investigate whether some other law - for which the police lack reasonable suspicion - has been violated
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Search and seizure
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if there a 4th amend right? govt. agent where D has a reasonable expectation of privacy
valid warrant if not was there a valid warrantless search and seizure |
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reasonable expectation of privacy
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need standing and item cannot be held out to the public
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when affidavit will be held invalid
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D must establish all
1. a false statement 2. intentionally or recklessly included the false statement 3. the false statement was material to the finding of probable cause |
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when is a warrant precise on its face?
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look for particularity
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exception to warrant requirement
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1. incident to lawful arrest
2. automobile search 3. plain view 4. consent 5. stop and frisk (Terry) 6. hot pursuit and evanescent evidence |
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search incident to arrest
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arrest must be lawful
police may search the person and areas into which he might reach to obtain weapons or destroy evidence |
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automobile exception
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if police has probable cause to believe that a vehicle contains fruits instrumentalities or E of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search
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plain view
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police may make a warrantless seizure when they
1. are legitimately on the premises 2. discover E, fruits or instrumentalities of crime or contraband 3. see such E in plain view 4. have probable cause to believe that the item is E, contraband or a fruit or instrumentality of crime |
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consent
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must be voluntary and intelligent
look for reasonable apparent authority to consent |
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hot pursuit, evanescent E and other emergencies
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no general emergency exception
1. police in hot pursuit of a fleeing felon may make a warrantless search and seizure without a warrant E likely to disappear before a warrant can be obtained and 3. contaminated food or drugs, persons injured or threatened with injury, and burning fires justify warrantles searches and seizures |
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administrative inspections and searches
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inspectors must have a warrant for searches of private residences and commercial buildings but the probable cause required to obtain a warrant is more lenient that for other searches
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searches at the border or its equivalent
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citizens and noncitizens do not have any 4th amendment right at the border
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wiretapping and eavesdropping
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need a warrant - valid warrant authorizing a wiretap may be issued if:
1. there is showing of probable cause 2. the suspected persons involved in the conversations to be overheard are named 3. warrant describes with particularity the conversations that can be overheard 4 the wiretap is limited to a short period of time 5. the wiretap is terminated when the desired information has been obtained 6. return is made to the court, showing what conversations have been intercepted |
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Miranda warnings
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look for custody + interrogation, failure to give the warnings violates a D's 5th amendment right to be free from compelled self-incrimination not 6th amend right to counsel
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pretrial identification
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only to establish that the victim or witness is remembering the D from the crime and not the proceedings
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post-charge lineup
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suspect has a 6th amend right to counsel
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bad out of court identification remedy
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unconstitutional identifications is exclusion of the in-court identification unless the witness there is an independent source for the in-court identification
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pretrial procedures
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need a preliminary hearing to determine probable cause to detain, bail must be set unless charge is a capital one
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Prosecutorial duty to disclose exculpatory information
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Brady: whether willfull or inadvertent violates the Due Process and will be reversed if D can show
1. E is favorable to him bc it impeaches or is exculpatory 2. prejudice has resulted |
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competency to stand trial
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incompetent if he lacks a rational as well as factual understanding of the charges or proceedings or lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding
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insanity v. competency at trial
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insanity is a defense to a criminal charge based on the defendant's mental condition at the time he committed the charged crime (jeopardy attaches)
incompetency to stand trial is not a defense to the charge but a bar to trial, based on D's mental condition at the time of trial - can be tried if D regains competency |
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pretrial publicity
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excessive pretrial publicity prejudicial to the D may require change of venue or retrial
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right to a fair trial
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1. public trial
2. unbiased judge 3. jury likely gives E reasonable consideration 4. cannot compel D to stand trial in prison clothing 5. cannot be visibly shackled unless for safety 5. jury cannot be exposed to influence favorable to the prosecution |
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right to jury trial
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6th amend applied to states through 14th amend
no right unless offense is serious if imprisonment for more than six months jury minimum is 6, must be fairly selected from representative cross-section of community |
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use of peremptory challenges for racial and gender based discrimination
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Batson! equal protection claim
1. defendant must show facts or circumstances that raise an inference that the exclusion was based on race or gender 2. prosecutory must offer a race-neutral explanation for the strike 3. judge determines whether the prosecutor's explanation was the genuine reason for striking the juror or merely a pretext for purposeful discrimination |
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right to impartial jury
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can question juror whether they have racial bias
can strike if opposed to death penalty if juror's view would prevent or impair performance of duties |
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effective assistance of counsel
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6th amendment, effective assistance is generally presumed
for IAC must show: deficient performance but for deficiency the result of the proceeding would have been different |
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right to confront witnesses
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6th amend right to confront adverse witnesses
not absolute, face to face not not required when preventing such confrontation serves an important public purpose judge may remove a disruptive defendant and a D may voluntarily leave the courtroom during trial |
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introduction of a co-D's confession
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2 persons tried together, 1 has given a confession that implicates the other, even where the confession interlocks with the D's own confession
1. all portions referring to the other D can be eliminated |
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burden of proof and sufficiency of the evidence
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due process requires in all criminal cases that the state prove guilt beyond a reasonable doubt
presumption of innocence is a basic component of a fair trial D's have burden to prove affirmative defenses |
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plea bargaining
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a plea bargain will be enforced against the prosecutor and the D but not against the judge who does not have to accept the plea
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taking a plea
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must determine that the plea is voluntary and intelligent must be in open court on the record
need: nature of the charge and the crucial elements of the crime charged 2. maximum possible penalty and any mandatory minimum 3. that he has right plead not guilty and a plea of guilty waives the right to trial remedy is to withdraw the plea and pleading anew |
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collateral attacks on guilty pleas after sentence
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can be set aside for:
1. involuntariness 2. lack of jurisdiction 3. ineffective assistance of counsel 4. failure to keep the plea bargain |
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double jeopardy
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5th amend.
attaches in a jury trial at the empaneling and swearing of the jury in bench trials when witness is sworn |
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exceptions to double jeopardy permitting retrial
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1. hung jury
2. manifest necessity to abort the original trial 3. may retry a D who has successfully appealed unless ground for reversal was insufficient evidence *4. charges may be reinstated after a D breaches her plea bargain |
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separate sovereigns
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separate sovereigns can try a defendant for the same offense
but municipalities are considered part of the state and so both a state and its municipality cannot validly try a D for the same offense |
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collateral estoppel
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D may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction
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privilege against compelled self-incrimination
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who: anyone may assert the privilege
when: any case - privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution remember only testimonial E is protected and only compelled testimonial E is privileged |
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elimination of privilege
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a witness may be compelled to answer questions if granted adequate immunity from prosecution
federal prosecutors may not use evidence obtained as a result of a state grant of immunity and vice versa |
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juvenile rights
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written notice of charges
assistance of counsel opportunity to confront and x-examine right not to testify right to have guilt established by proof beyond reasonable doubt jeopardy attaches after delinquency |
