Criminal Procedure Bar

Front 1

Exclusionary Rule

Back 1

constitutional remedy that gives individuals the right to prevent the gov't from using, in a criminal prosecution against them

Front 2

Limitations to exclusion

Back 2

1) Criminal trials
2) NOT - in grand juries proceedings
3) Impeachment of the D's own testimony

Front 3

Impeachment purposes of D when he/she takes the stand exception to exclusion

Back 3

1) Improperly Mirandized statements
2) Pre or post arrest unMirandized silence
3) Unconsti. seized evidence

*impeachment purposes

Front 4

When does the exception to the exclusion rule NOT apply?

Back 4

1) Coerced confessions
2) Post Miranda silence
3) Massiah (6th Amend right to counsel) violations

Front 5

Exception to Exclusion:
Good Faith reliance on:

Back 5

1) judicial opinion later changed by another decision

2) statute or ordinance later declared unconsti

3) search warrant defective as a result of insufficient probable cause

Front 6

Exceptions to the good faith reliance on a defective search warrant:

Back 6

1) affidavit is so lacking in probable cause that no reasonable officer could rely on it

2) warrant is invalid on its face (e.g. failure to state w/ particularity the place to be searched or things to be seized)

3) the affiant (police officer) lied to or intentionally misled the magistrate - (officer's subjective state of mind)

4) the magistrate wholly abandoned his judicial role

Front 7

3 situations in which a warrant was invalidated b/c the magistrate was deemed not to be sufficiently "neutral and detached" *wholly abandoned judicial role

Back 7

1) magistrate was also a prosecutor

2) magistrate was paid per search warrant

3) magistrate acted in such a way so as to have become a member of the law enforcement team

Front 8

Fruit of the Poisonous Tree

Back 8

excludes all evidence obtained or derived from unconstitutional police acts as tainted "fruit"

Front 9

Exceptions to Poisonous Tree - Free Will

Back 9

Free will - Independent acts by the accused that are seen as breaking the chain of taint between the original unconstitutional police action and the evidence derived from it.

Wong Sun case - confession by Wong Sun - independent acts, he didn't confess while he was unconstitutionally detained.

His "free will" breaks the chain of poisonous tree

Front 10

Exceptions to Poisonous Tree - Inevitable Discovery

Back 10

Preponderance of the evidence, that the evidence would have "inevitably" been discovered even if the constitutional violation had never taken place

Front 11

Exception to poisonous tree doctrine - Miranda violations

Back 11

There will be no FPT exclusion of real or physical evid obtained as a result of a Miranda violation

*can exclude improperly obtained confessions from defective Miranda warning

Front 12

Exception to FPT - knock and announce violations in the execution of warrants

Back 12

no FPT exclusion for evidence subsequently discovered in a residence even if the police entry into that residence violated the constitutional requirement of proper "knock and announce"

Front 13

Arrest Warrants

Back 13

not req'd for arrests made in public places, so long as there is full probable cause justifying the arrest. Probable cause to arrest is needed before the policy may "take" a suspect to the police station for interrogation or to take an exemplar, such as a finger print, from the suspect

Front 14

Arrest warrants are rq'd for non-emergency arests in a residence, if the arrestee:

Back 14

1) lives there
2) spending the night there

Front 15

Search and seizure - analysis

Back 15

1) State Action (or where private citizen is working for the gov't) - no such thing as an "off duty police officer"

2) Standing to object

Front 16

Standing to object

Back 16

Did the D have a reasonable expectation of privacy, in the area searched or the items seized?

Front 17

When is the 4th Amend rights not violated by the police?

Back 17

1) Eavesdrop under certain circumstances

2) Scrape paint off of the exterior of a vehicle

3) Monitor vehicles in public places

4) search open fields

5)observe during a fly over in public airspace

6) search through garbage containers left for trash pickup on a public street

7) Search for contraband, where only the presence or absence of the contraband will be revealed by the search

Front 18

Are open fields a REP?

Back 18

no - even if the field is surrounded by a fence w/ no trespassing signs on it

Front 19

Search for contraband, when is it NOT a violation of the 4th?

Back 19

where only the presence or absence of the contraband will be revealed by the search

drug sniffing by dog allowed, b/c only way to know its presence or absence - but cannot be unconstitutionally detaining the suspect or their luggage.

*not usable against one's residence *protection homes from intrusion *no 4th amend/ REP in regards to contraband

Front 20

3 automatic categories of standing when the accused:

Back 20

1) owns the premise searched

2) lives on the premises searched,

3) is an overnight guests at the premise searched

Front 21

Exception to poisonous tree doctrine - Miranda violations

Back 21

There will be no FPT exclusion of real or physical evid obtained as a result of a Miranda violation

*can exclude improperly obtained confessions from defective Miranda warning

Front 22

Exception to FPT - knock and announce violations in the execution of warrants

Back 22

no FPT exclusion for evidence subsequently discovered in a residence even if the police entry into that residence violated the constitutional requirement of proper "knock and announce"

Front 23

Arrest Warrants

Back 23

not req'd for arrests made in public places, so long as there is full probable cause justifying the arrest. Probable cause to arrest is needed before the policy may "take" a suspect to the police station for interrogation or to take an exemplar, such as a finger print, from the suspect

Front 24

Arrest warrants are rq'd for non-emergency arests in a residence, if the arrestee:

Back 24

1) lives there
2) spending the night there

Front 25

Search and seizure - analysis

Back 25

1) State Action (or where private citizen is working for the gov't) - no such thing as an "off duty police officer"

2) Standing to object

3) valid Search warrant

Front 26

Standing to object

Back 26

Did the D have a reasonable expectation of privacy, in the area searched or the items seized?

Front 27

When is the 4th Amend rights not violated by the police?

Back 27

1) Eavesdrop under certain circumstances

2) Scrape paint off of the exterior of a vehicle

3) Monitor vehicles in public places

4) search open fields

5)observe during a fly over in public airspace

6) search through garbage containers left for trash pickup on a public street

7) Search for contraband, where only the presence or absence of the contraband will be revealed by the search

Front 28

Are open fields a REP?

Back 28

no - even if the field is surrounded by a fence w/ no trespassing signs on it

Front 29

Search for contraband, when is it NOT a violation of the 4th?

Back 29

where only the presence or absence of the contraband will be revealed by the search

drug sniffing by dog allowed, b/c only way to know its presence or absence - but cannot be unconstitutionally detaining the suspect or their luggage.

*not usable against one's residence *protection homes from intrusion *no 4th amend/ REP in regards to contraband

Front 30

3 automatic categories of standing when the accused:

Back 30

1) owns the premise searched

2) lives on the premises searched,

3) is an overnight guests at the premise searched

Front 31

Probable Cause

Back 31

determined by the "totality of the circumstances"

Front 32

Requirements for a valid search warrant

Back 32

1. Warrant should issue on a showing of PROBABLE CAUSE

2. Warrant must be PRECISE ON ITS FACE. Must state w/ particularity the place to be searched and the things to be seized. *just reasonable

3. Warrant must have been issued by a neutral and detached judicial officer (magistrate) - neutral and detached from law enforcement. (Attorneys general are not neutral and detached.)

4. Served in a reasonable time (stale? - did it outlive the probable cause?)

Exam Tip: If warrant fails under the neutral magistrate rule, it CANNOT be saved by the good faith defense!

Front 33

6 exceptions to the warrant requirement

Back 33

1. SIA
2. Automobile exception
3. Consent
4. Plain view
5. Stop & frisk
6. Hot pursuit and evanescent evidence

Front 34

Requirements for a valid search incident to arrest (SIA):

Back 34

1. The arrest MUST BE LAWFUL.
2. The search must be CONTEMPORANEOUS in time and place with the arrest
3. GEOGRAPHIC SCOPE limitation on what can be searched - PERSON and the areas they can reach to procure weapon/destroy evidence (“wing span”) - subjective

Front 35

Requirements for a valid warrantless search under the Automobile Exception

Back 35

Normally, when a person is validly arrested in car, the person’s wingspan is the entire interior of the car, but not the trunk.

BUT the whole car can be searched in some cases: The police NEED PROBABLE CAUSE to fall under this exception. If have PC, can search the ENTIRE car, including package, luggage, other container that could reasonably contain item for which have PC to look – whether items belong to passenger or driver.

Exam Tip: ask whether magistrate would have issued warrant under the circs.

The PC can arise AFTER the car is stopped; but it has to arise BEFORE anything or anyone is searched.

Front 36

Automobile searches incident to arrest - recent occupant rule

Back 36

can search the vehicle, even after the occupant (just recently) left his vehicle.

Front 37

Can a vehicle w/out the occupant no longer in the car, be searched?

Back 37

yes - p/o allowed to search the entire vehicle.

Front 38

Protective Sweepts

Back 38

The police, incident to an arrest in a residence - permitted to look in areas "immediately adjoining" the place of the arrest for other persons who might attack the police. No PC nor reasonable suspicion necessary.

Front 39

Border Searches

Back 39

Do not need warrant, PC or even reasonable suspeicion

HOWEVER - away from the point of entry or customs are governed by all the normal rules w/ respect to search/seizure (might require pc or even a warrant)

*includes the MAIL

Front 40

Requirements for a valid plain view warrantless search:

Back 40

The police may make a warrantless search if they:

1. are legitimately on the premises
2. Discover evidence, fruits, or instrumentalities of crim or contraband
3. see such evidence in plain view, and
4. have PC to believe that the item is evidence, contraband, or a fruit/ instrumentality of crime.
5. Seen, heard, smelled, or felt by the officers at a time they were in a place they had a constitutional right to be


EXAM TIP: be sure that the police officer is legitimately present where s/he does the viewing!

Front 41

Standard for a proper stop and frisk:

Back 41

Standard for stopping: reasonable suspicion (less than PC). If there is RS, police can stop the person,

If there’s RS of a weapon, they can pat them down (frisk).

If a pat down and they feel something, and pull out a weapon, the weapon is admissible.

If on the pat down they feel something, and pull out evidence of crime but NOT a weapon, ask how much LIKE a weapon (reasonably) or contraband (pc) could it have seemed from the outside? **need PC for contraband, to believe it is contraband

Front 42

Stop and Frisk - generally

Back 42

1) must be a brief detention
2) Need reasonable suspicion for pat down - only for weapons

Front 43

Probable Cause v. Reasonable Suspicion

Back 43

Requires less objective evidence of criminality on the part of the suspect than does probable cause.

*searches cannot be based upon reasonable suspicion alone.

Front 44

Who has authority to consent to a search of a home?

Back 44

Any person with apparant equal right to use or occupy the property. *as to a reasonable person and what they believed.

Where 2 or more people have equal right to use a piece of property, any ONE of them can consent to its warrantless search.

*refusal trumps consent (even by co-occupant)

Front 45

Requirements for a valid, warrantless consent search:

Back 45

A warrantless search is valid if the police have VOLUNTARY and INTELLIGENT consent.

Knowledge of the right not to consent is not a prerequisite. *no need to warn

Front 46

Standard for hot pursuit and evanescent evidence warrantless search/seizure:

Back 46

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

Hot pursuit – of a fleeing felon. Has to be “real hot”
- No contemporaneousness requirement!
- No geog scope limitation!
- If police are truly in hot pursuit, they can enter ANYONE’S home in that pursuit

Front 47

Evanescent - to bodily intrusion

Back 47

must be reasonable, cannot be too intrusive, too painful or too dangerous to the suspect - violation of DP rights.

Front 48

Exception to poisonous tree doctrine - Miranda violations

Back 48

There will be no FPT exclusion of real or physical evid obtained as a result of a Miranda violation

*can exclude improperly obtained confessions from defective Miranda warning

Front 49

Exception to FPT - knock and announce violations in the execution of warrants

Back 49

no FPT exclusion for evidence subsequently discovered in a residence even if the police entry into that residence violated the constitutional requirement of proper "knock and announce"

Front 50

Arrest Warrants

Back 50

not req'd for arrests made in public places, so long as there is full probable cause justifying the arrest. Probable cause to arrest is needed before the policy may "take" a suspect to the police station for interrogation or to take an exemplar, such as a finger print, from the suspect

Front 51

Arrest warrants are rq'd for non-emergency arests in a residence, if the arrestee:

Back 51

1) lives there
2) spending the night there

Front 52

Search and seizure - analysis

Back 52

1) State Action (or where private citizen is working for the gov't) - no such thing as an "off duty police officer"

2) Standing to object

3) valid Search warrant

4) if no valid warrant - any exception?

Front 53

Standing to object

Back 53

Did the D have a reasonable expectation of privacy, in the area searched or the items seized?

Front 54

When is the 4th Amend rights not violated by the police?

Back 54

1) Eavesdrop under certain circumstances

2) Scrape paint off of the exterior of a vehicle

3) Monitor vehicles in public places

4) search open fields

5)observe during a fly over in public airspace

6) search through garbage containers left for trash pickup on a public street

7) Search for contraband, where only the presence or absence of the contraband will be revealed by the search

Front 55

Are open fields a REP?

Back 55

no - even if the field is surrounded by a fence w/ no trespassing signs on it

Front 56

Search for contraband, when is it NOT a violation of the 4th?

Back 56

where only the presence or absence of the contraband will be revealed by the search

drug sniffing by dog allowed, b/c only way to know its presence or absence - but cannot be unconstitutionally detaining the suspect or their luggage.

*not usable against one's residence *protection homes from intrusion *no 4th amend/ REP in regards to contraband

Front 57

3 automatic categories of standing when the accused:

Back 57

1) owns the premise searched

2) lives on the premises searched,

3) is an overnight guests at the premise searched

Front 58

Wiretapping and Eavesdropping - is a warrant required?

Back 58

ALL of it requires a warrant.

Exception:
1) assumed risk that the person to whom we are speaking has agreed to allow the police to listen to the convo.

2) pin-register numbers and their like are not protected - they are not content, they are just numbers.

Front 59

When does double jeopardy attach at a jury trial? at a bench trial?

Back 59

Attaches at a jury trial when the jury is sworn

Attaches at a judge trial when the first witness is sworn

Front 60

Does jeopardy attach in civil trials? criminal? Both?

Back 60

Criminal.

Jeopardy generally doesn’t attach when the proceedings are CIVIL

Front 61

Four exceptions to double jeopardy rule (when retrial can occur):

Back 61

a. Jury unable to agree to agree on a verdict

b. Mistrials for manifest necessity (e.g. bribed juror, D ill)

c. Retrial after successful defense appeal

d.** Breach of an agreed upon plea bargain by the defendant

**if appealed, and court determines that there were insufficient evidence, cannot retry

Front 62

What constitutes the "same offense" for Double Jeopardy purposes?

Back 62

Same elements - double jeopardy issue

RULE: 2 crimes do not constitute the same offense when each crime requires proof of an additional element that the other does not.

Secondary Rule: Lesser included offenses are barred under double jeopardy

(Robbery = larceny + assault. If in jeopardy for robbery, can’t later try you for lesser offense of larceny. If tried for larceny, this bars retrial for greater offense of robbery.)

Front 63

Exception to the no retrial for the "same offense" double jeopardy rule:

Back 63

If D is in jeopardy for battery, and the victim then dies … they CAN then try the Def for murder.

Front 64

Same sovereign rule re: double jeopardy:

Back 64

Rule: The same sovereign can’t try you twice for the same offense

Eg:
- The state and federal government are not the same sovereign
- Two different states can try you for the same offense
- You can’t be separately violated for violation of state law and a county ordinance.

Front 65

Collateral estoppels and res judicata

Back 65

1) re-litigating a factual issue to a D's detriment is barred by double jeopardy.

2) This prohibition against rel-litigating factual issues applies only to acquittals and not convictions

Front 66

Miranda

Back 66

1) Custody - cannot leave - it is NOT: probation interviews, tax audit interviews and period early in routine traffic stops

2) Interrogation - any conduct that the police knew or should have known would obtain an incriminating statement

Front 67

Spontaneous statements and Miranda warnings

Back 67

Miranda warnings aren’t needed before a spontaneous statement (EXAM TIP: “blurted”)

Front 68

How can a suspect waive Miranda rights?

Back 68

Any waiver must be KNOWING, VOLUNTARY, & INTELLIGENT (Exam Tip: shoulder shrug doesn’t count as knowing/intelligent.)

Front 69

When is a Miranda warning constitutionally sufficient?

Back 69

Substantial compliance w/ the articulation of the Miranda warnin

Front 70

What is the public safety exception in regards to Miranda rights?

Back 70

for the sake of public safety/concern, Miranda warnings not necessary

Front 71

Right to remain silent

Back 71

1) Once exercised, police may not again attempt to obtain a waiver of those Miranda rights w/ respect to the "same" crime

*ok to obtain a waiver, assuming he did not ask for counsel

Front 72

When does the 5th Amendment right to counsel attach? What does it cover?

Back 72

Once def. asserts right to terminate interrogation and requests attorney, re-initiation of interrogation by police w/o attorney present violates 5th Amendment right to counsel (technically, the failure to give a Miranda warning vioaltes the 5th amendment right to be free from self-compelled self-incrimination.)

This right arises ONLY when somebody, upon hearing the Miranda warning, says “I want a lawyer”

Cops can’t ask about ANYTHING after this request w/o lawyer present - it is NOT OFFENSE SPECIFIC (unlike Miranda, where p/o can ask about separate crime)

Front 73

When does the 6th Amendment Right to Counsel attach? What does it cover?

Back 73

At all other times when a person asks for a lawyer other than after a Miranda warning, it’s under the 6th amendment right to counsel.

1) Formal proceedings have commenced;
2) Represented by counsel

This is offense specific! The attnry only has to be present if def will be asked Qs about the specific case for which s/he is in custody. Applies even where D is not in custody

Front 74

Pre-trial ID

Back 74

D is entitled to Counsel under the 6th - at POST indictment/arraignment charge in person lineups.

) no necessary for photo line-ups; not needed for the taking of a handwriting sample, etc.

Front 75

When is a pre-trial ID a denail of DP?

Back 75

If a lineup or show-up is so unnecessarily suggestive as to create a substantial likelihood that it will produce a misidentification

Front 76

If line-up is unconstitutional for either reason then:

Back 76

1) Line-up ID is inadmissible

2) need clear and convincing evidence, that there was an independent source for W's in court ID.

Front 77

Right to counsel during judicial proceedings

Back 77

1) only where jail sentence is actually imposed (so not for misdemeanors, unless facing jail time)

2) right to counsel, includes the right to appointment of necessary experts in felonies.

Front 78

Right to counsel for appeals?

Back 78

only for the 1st appeal - but not to writs of habeas corpus or to appeals to a 2nd level appellate court

Front 79

Ineffective assistance as a constitutional issue requires the D to establish the existence of two elements:

Back 79

1) D must hsow that his criminal D attrny's performance was UNREASONABLY DEFICIENT (dropped below the accepted standard of care) and

2) the D must also establish that, but for his attorney's defective performance, the result of the proceedings ould have been different

Front 80

Grand Jury

Back 80

only applies to federal courts, never constitutionally imposed upon the states.

Exclusionary rule not applicable

no right for D or his attorneys to be present

Front 81

Bail - preventive detention

Back 81

court determines that no amount of bail would insure the D's return; no way to insure the safety of comunity, no DP violation to hold accused w/out bail. need a hearing on the issue first.

Front 82

Jury - generally

Back 82

1) do not need unanimous
2) can be made by 6, but need to be unanimous if 6
3) 6 months or more sentencing (non-petty offense) - has right to jury trial
4) fair cross section of the community - members of jury
5)cannot peremptory challenge to exclude juror based on race/gender

Front 83

Jury - involving Death Penalty

Back 83

1) cannot excuse juror b/c they don't agree w/ death penalty

2) unless it would impair their ability to follow the court's instructions

Front 84

What a judge has to tell the defendant ON THE RECORD if the defendant pleads guilty:

Back 84

1. The nature of the charge

2. The max authorized sentence and any mandatory minimum sentence

3. Tell the def that they have a right to plead not guilty and demand a trial

4. Put on record, by Judge that an advsiement and waiver of ALL the constitutional rights that the D is giving up by virtue of pleading guilty.

Front 85

Exceptions to the general rule that courts will not disturb guilty pleas after sentencing:

Back 85

There are 4 good bases for withdrawing guilty pleas after sentencing:

1. the plea was involuntary (a mistake in the plea taking process)
2. lack of jurisdiction – court that took the plea didn’t have the jurisdiction to take it
3. ineffective assistance of counsel
4.** failure of prosecutor to keep an agreed-upon plea bargain.

Front 86

Death Penalty

Back 86

1) no statute - can allow an automatic death sentence

2) no statute limiting the mitigating factor that a D is allowed to present to the jury if they are relevant. All relevant evidence must be admissible or the law is unconstitutional

*cannot commit death penalty - to a crime committed by someone under 18; or mentally retarded

Front 87

Who can invoke the Fifth Amendment Privilege against Compelled Testimony?

Back 87

Anybody under oath, in any kind of case – civil, administrative hearing, congressional hearing, etc.

If the answer might incriminate them, then can invoke it

EXAM TIP: if you don’t assert it the first time you’re asked the question, you waive the privilege for all subsequent criminal prosecutions.

Front 88

Scope of the 5th amendment Privilege against Compelled Testimony?

Back 88

5th amendment DOES NOT protect D from having the state use her body to incriminate her. (they can make D give hair, urine, blood samples, etc)

5th amendment DOES protect D from compelled TESTIMONY. the state can’t make us take a lie detector test, or undergo custodial police interrogation.

Front 89

3 ways that the 5th amendment privilege against self-incrimination can be eliminated:

Back 89

1. Grant of immunity– state won’t use immunized testimony or anything derived from it to convict you (but it can prosecute you based on evidence prosecution had before the immunity grant)

2. No possibility of prosecution – eg, S of L has run on underlying crime

3. Waiver – criminal def, by taking witness stand, waives 5th Amendment privilege as to all legitimate subjects of cross examination.

Front 90

Can a prosecutor make a negative comment on the defendant’s failure to testify, or on his/her remaining silent upon hearing the Miranda warning?

Back 90

No -- it is unconstitutional

Front 91

Use immunity v. transactional immunity

Back 91

Use immunity - cannot be used against the person granted the immunity, within scope

Transactional immunity - can