Criminal Procedure

Front 1

exlcusion + grand jury

Back 1

exclusion does not apply to the content of grand jury

grand jury witness may be compelled to testify based on illegally gathered evidence

Front 2

exclusion + civil trials

Back 2

not an available remedy

Front 3

good faith defense + exclusion

Back 3

(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) police rely in good faith on a defective warrant
--EXCEPTIONS:
(a) if the affidavit = so lacking in probable cause that no reasonable police officer would rely on it
(b) warrant = invalid on its face
(c) affiant police officer lied to or misled the magistrate
(d) magistrate wholly abandoned his role

Front 4

inadmissible evidence + impeachment

Back 4

can totally be used for impeachment of the defendant

defendant = the ONLY person who can be impeached by this evidence

Front 5

fruit of the poisonous tree doctrine

Back 5

exclude all evidence or derived from the exploitation of the illegally seized evidence

if want to make evidence admissible, then BREAK THE CHAIN
(1) independent source
(2) inevitable discovery
(3) intervening acts of free will on the part of the defendant

where the original police violation = failure to give Miranda warning, the fruit of the poisonous doctrine does NOT apply

Front 6

arrest

Back 6

warrants generally not needed when arresting someone in public
- exception = arresting someone at home, requires an arrest warrant UNLESS it is a emergency situation

Front 7

arrest + station house detention

Back 7

police need probable cause to arrest you to compel you to come to the station for fingerprinting or interrogation

Front 8

search and seizure, general flow chart

Back 8

(1) does the defendant have a 4th amendment right?
(a) is there government conduct?
(b) does the defendant have a reasonable expectation of privacy?

(2) does the government have a search warrant?
(a) is the search warrant valid?
(b) can you save the evidence with the good faith clause?

(3) can you fit the search into the six exceptions to the warrant requirement?

Front 9

who's conduct is government conduct?

Back 9

(1) paid police officers, on or off duty
(2) private persons acting at the direction of police officers
(3) paid private police are NOT government officials
UNLESS deputized with the power to arrest
- campus police = government officials

Front 10

when do you have standing to object to the legality of the search?

Back 10

ALWAYS
-own the premise that is searched
- live on the premises searched
- overnight guests

SOMETIMES
-own the property that is seized

specific examples
- overnight guests
- passengers in car who do not claim to own the car or own the contraband = no standing
- dealer on the premises of someone else solely on the premises for the business purposes to cut up + sell drugs = no standing

Front 11

no right of privacy = seizure a-ok

Back 11

- sound of your voice
- style of handwriting
- paint on the outside of your car
- account records held in a bank
- monitoring the location of a car on a public street or in your driveway
- anything that can be seen from flying over in the public airspace
- anything that can be seen across the open fields
- odor emanating from your luggage
- garbage set out on the curb for collection

Front 12

warrants + informants

Back 12

police can rely on the use of hearsay

use of informers: can have a valid warrant based in part on an informant's tip even though that informant remains anonymous
- needs to circumstantial evidence corroborating the informant's tip

Front 13

face of warrant

Back 13

must be precise

must state with particularity
(1) place to be searched
(2) things to be seized

Front 14

who must issue a warrant?

Back 14

a neutral and detached magistrate

who is not neutral?
- state attorney general
- getting paid to issue search warrants
- person who goes down to the scene of the crime essentially becomes part of the popo

Front 15

search incident to a lawful arrest

Back 15

if the arrest = unlawful, then the search = unlawful

search must be contemporaneous in time and place of arrest

scope = person + his wingspan

Front 16

automobile exception

Back 16

no probable cause + arrest, then entire car EXCEPT trunk.

if probable cause about car, then ENTIRE CAR (interior, trunk, any container in the car, any package, any luggage)

Front 17

plain view exception

Back 17

police officer needs to legitimately be present and then sees the fruits of the crime or contraband in plain view

Front 18

consent

Back 18

must be voluntary and intelligent
- saying that they have a warrant negates consent

third-party consent: when two or more people have an equal right to use a piece of property, any one of them can consent to search (common enterprise theory)
- if one person says no way jose, then no dice on the search; the naysayer controls

Front 19

stop + frisk

Back 19

reasonable suspicion

patdown okay if reasonable suspicion that suspect = armed
- if feel something hard, then can reach in and pull out a gun, then weapons always admissible
- if pull out drugs, then how much like a weapon could it have seemed from outside?

Front 20

hot pursuit

Back 20

if the police are not within fifteen minutes of the fleeing culprit, then not hot pursuit

a catchall, can totally search the entire premises even after they catch the culprit.
- no limitations on contemporaneity or wingspan

Front 21

evanescent evidence

Back 21

evidence that might go away if you took time to get the warrant

example: can scrape underneath a defendant's fingernails because if he washes his hands the stuff may disappear

Front 22

wiretapping + eavesdropping requires. . .

Back 22

a warrant

exception = unreliable ear, everyone in society assumes the risk that someone will consent to the government monitoring the conversation or is wired

Front 23

miranda rights analysis

Back 23

(1) is the individual in custody?
- custody = if at the time of interrogation, you are not free to leave
-- probation interviews + routine traffic stops are not custodial

(2) is there an interrogation?
- interrogation = any conduct where the police knew or should have known they might get a damaging statement
- spontaneous statements = NOT interrogation

(3) if interrogation, waiver?
- waiver must be knowing, voluntary, and intelligent
- silence or shoulder shrugging = NOT waiver

Front 24

defendant's termination of interrogation

Back 24

reinitiation of interrogation by the police without a lawyer present violates the 5th amendment right to counsel

not offense specific --> cannot be questioned about ANYTHING
- because the defendant is implying that he needs help navigating the realm of custodial interrogation

Front 25

6th amendment right to counsel

Back 25

offense specific

Front 26

pre-trial identification

Back 26

post-charge lineups + showups = right to counsel

showing of photographys = no right to counsel

Front 27

pre-trial identification + due process denial

Back 27

- unnecessarily suggestive and highly likely to produce a misidentification

Front 28

bail

Back 28

cannot be excessive

bail issues = immediately appealable

preventative detention = constitutional
(1) risk of flight
(2) dangerous to society

Front 29

grand juries

Back 29

states do not have to use grand juries as a regular part of their charging process
- then, information = piece of paper signed by the prosecutor stating the charge

a grand jury witness may be compelled to testify based on ilegally seized evidence

proceedings of grand juries = secret
- defendant has no right to appear or send witnesses

Front 30

basic right to fair trial

Back 30

(1) right to an unbiased trial
- judge shows actual malice against defendant
- judge has financial interest in the outcome of the case

(2) right to jury trial
- anytime the defendant is tried for an event + the maximum sentence exceeds 6 months (or aggregation of the sentences = 6 months)
- 6 jurors = unanimous verdict; 12 jurors unanimity not required
-cross-sectional requirement = jury pool should reflect a fair cross-section of the community; the actual JURY does not have to reflect the community
-peremptory challenges = race and gender-neutral

(3) ineffective assistance of counsel
must prove
(a) deficient performance of counsel
(b) but for such deficiency, the result of the proceeding would have been different

Front 31

guilty pleas

Back 31

waivers to the right of a jury trial

Front 32

contract theory of plea bargaining

Back 32

plea bargains = contracts
- terms of the plea bargain must be outlined during the plea taking
- both sides need to be held to whatever terms agreed to

Front 33

if taking a guilty plea, the judge must address on the record,

Back 33

the defendant personally about
- nature of the charge
- maximum authorized penalty + any mandatory minimum sentence (super duper important)
- has the right to plead not guilty

if the judge effs up, then the defendant may withdraw his plea and plead again

Front 34

four reasons for withdrawing a plea

Back 34

(1) plea = involuntary

(2) lack of jurisdiction

(3) ineffective assistance of counsel

(4) failure of the prosecutor to keep the bargain

Front 35

death penalty

Back 35

(1) any death penalty statute that does not give the defendant the opportunity to present mitigating facts + 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.

Front 36

when does double jeopardy attach?

Back 36

- in jury trial, when the jury is sworn

- in a judge trial, when the first witness is sworn

- jeopardy does not usually attach when the proceedings are civil

Front 37

four exceptions permitting retrial

Back 37

(1) jury = unable to agree on a verdict
- discharge jury and defendant can be retried

(2) mistrials for manifest necessities

(3) retrial after successful appeal is not double jeopardy

(4) breach of an agreed upon plea bargain by the defendant
- when the defendant breaches a plea bargain agreement, his plea + sentence can be withdrawn + the original charges against the defendant can be reinstated

Front 38

what constitutes the same offense?

Back 38

- two crimes do not constitute the same offense if each crime requires proof of an additional element the other does not

what about lesser-included offenses?
- being put in jeopardy for the greater offense prevents a separate trial for the lesser offense

Front 39

separate sovereign

Back 39

can totally be put on the hook in both federal + state court because they are separate sovereign.

conduct that happens in Nevada + results happen in Cali, can totally be on the hook in both courts because they are separate sovereigns.

state + county, double jeopardy applies

Front 40

fifth amendment, generally

Back 40

anybody asked under oath a question that might incriminate them can assert the 5th amendment in any proceeding

must assert the privilege or waiver of the right to ALL subsequent questions in ANY proceeding

Front 41

scope of self-incrimination privilege

Back 41

does not protect body samples
- hair sample, fingerprints, urine samples

protects us from compelled testimony
- cannot make us take a lie detector test

prosecutor cannot make a negative comment on the defendant's failure to testify or remaining silent on hearing the miranda warnings

Front 42

exceptions to self-incrimination privilege

Back 42

(1) grant of immunity

(2) no possibility of incrimination

(3) waiver
- the criminal defendant who takes the stand waives his privilege as to all legitimate subjects of cross examinations