Criminal Procedure - Ca Bar Feb 2009

Front 1

Fourth Amendment Due Process Requirements (criminal procedure).

Back 1

Prohibition against unreasonable searches and seizures.

Judge-made exclusionary rule requiring that the result of a violation of this prohibition not be used as evidence against the defendant.

Front 2

Fifth Amendment Due Process Requirements (criminal procedure).

Back 2

(1) Privilege against compulsory self-incrimination.

Exclusionary rule applies.

(2) Prohibition against double jeopardy.

Front 3

Sixth Amendment Due Process Requirements (criminal procedure).

Back 3

(1) right to speedy trial

(2) right to public trial

(3) right to trial by jury

(4) right to confront witness

(5) right to compulsory process for obtaining witnesses

(6) right to assistance of counsel in felony cases [Gideon], and in misdemeanor cases in which imprisonment is imposed.

Exclusionary rule applies.

Front 4

Eighth Amendment Due Process Requirements (criminal procedure).

Back 4

Prohibition against cruel and unusual punishment.

Front 5

Exclusionary rule.

Back 5

A judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of a defendant's Fourth, Fifth, or Sixth Amendment rights.

Purpose: to deter the government from violating a person's constitutional rights, and to provide a remedy for deprivation of rights.

Front 6

Fruit of the poisonous tree doctrine.

Back 6

Not only must illegally obtained evidence be excluded, but ALL evidence obtained or derived from exploitation of that evidence.

LIMITATIONS:
(1) fruits derived from Miranda violations may be admissible despite the exclusionary rule.
(2) inapplicable to grand juries, civil proceedings, internal agency rules, parole revocation proceedings.
(3) does NOT apply when police acted on good faith reliance on existing law, defective search warrant, or clerical error.
(4) does not apply to "knock and announce" violations.
(5) some excluded evidence can be used for impeachment purposes

EXCEPTION: the fruit of the poisonous tree will not apply when the CAUSAL CHAIN has been broken by: (a) independent source; (b) intervening act of free will; (3) inevitable discovery.

In-court identification cannot be excluded on the basis of the poisonous tree doctrine.

Front 7

Harmless error test.

Back 7

A conviction can be upheld if the conviction would have resulted DESPITE the improper evidence.

The government bears the burden of showing beyond a reasonable doubt that the admission of illegally obtained evidence was harmless.

Front 8

Good-faith reliance on search warrant.

Back 8

An officer may rely on a defective search warrant if he reasonably relied on the magistrate's issuance.

An officer cannot rely on a defective search warrant in good faith if:
(i) the affidavit underlying is so lacking in probable cause that no reasonable officer would have relied on it;
(ii) the warrant is defective on its face (fails to state with particularity the place to be searched and things to be seized);
(iii) the police officer or government official obtaining the warrant lied to or misled the magistrate; or
(iv) the magistrate has "wholly abandoned his judicial role"

Front 9

Seizure of a person.

Back 9

Occurs only when a reasonable person would believe that she is not free to leave.

Front 10

Arrests.

Back 10

Occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation.

REQUIREMENTS:
(1) Probable Cause -- present when, at the time of arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime.
(2) Warrant is generally NOT required to arrest a person in a public place. Officer may arrest without warrant if he reasonably believes that suspect committed felony. May arrest for misdemeanor only if officer is aware of it.
(3) HOME arrests require warrant, unless exigent circumstances.

Front 11

Investigatory detentions (stop and frisk).

Back 11

Police have the authority to briefly detain a person for investigative purposes even if they lack probable cause to arrest.

Police must have a REASONABLE, ARTICULABLE SUSPICION of criminal activity or involvement in a completed crime.

Police may "FRISK" detainee to ensure that the he has no weapons, if the officer has a reasonable suspicion that detainee might be armed and dangerous.

Detention must be brief and no longer than necessary to conduct a limited investigation and verify officer's suspicions.

If officer develops probable cause, the detention may become an arrest.

Front 12

Automobile stops.

Back 12

Constitutes a seizure of driver and passengers under the Fourth Amendment. Officer must have reasonable suspicion that a law has been violated.

Officer may:
(1) order occupants out of vehicle (2) conduct a frisk and search passenger compartment for weapons, if he has reasonable suspicion that detainees are armed.

PRE-TEXTUAL STOPS are valid, so long as officer has probable cause to believe that a traffic law has been violated.

So long as detention is no longer than necessary (to issue ticket and so forth), officers may allow a narcotics dog to sniff car.

Front 13

Deadly force.

Back 13

When an officer uses deadly for to apprehend a suspect, it is a seizure. Officer may not use deadly force unless it is reasonable to do so under the circumstances.

Front 14

Evidentiary searches and seizures analysis.

Back 14

(1) Was there state action?

(2) Did defendant HIMSELF have reasonable expectation of privacy?

(3) If so, did the police have a valid search warrant?

(4) If not, did the police make a valid warrantless search and seizure?

Front 15

Reasonable expectation of privacy.

Back 15

A reasonable expectation of privacy always exists in the following places:
(1) defendant's property which he has owns or has the right to possess;
(2) defendant's home, regardless of ownership or possession; and
(3) the property where defendant is an overnight guest of the owner.

NO AUTOMATIC STANDING (must prove reasonable expectation of privacy):
(1) third party premises;
(2) co-conspirator's property;


NO reasonable expectation of privacy for the following:
(1) things held out to the public: (i) sound of one's voice; (ii) handwriting; (iii) paint on the outside of one's car; (iv) the smell of luggage or car; (v) account records held by the bank; (vi) an automobile's movement; (vii) magazines offered for sale.
(2) Open fields
(3) Fly-overs
(4) Vehicle identification numbers

Front 16

Searches warrant requirements.

Back 16

Warrant MUST:
(1) be issued by neutral and detached magistrate;
(2) be based on probable cause established from facts submitted to the magistrate by a government agent upon oath or affirmation; and
(3) particularly describe the place to be searched and items to be seized.

Warrant may be anticipatory.

May base probable cause on information from anonymous informant.

TO INVALIDATE SEARCH WARRANT, defendant must show:
(1) false statement was included in the affidavit by officer;
(2) affiant intentionally or recklessly included that false statement; and
(3) the false statement was material to the finding of probable cause.

Front 17

Execution of Warrant.

Back 17

(1) Must be executed by the police;
(2) No media allowed, if a home;
(3) Must be executed without reasonable delay
(4) Must "knock and announce," unless it would be dangerous, futile or would inhibit the investigation.
(5) May seize any contraband or fruits of crime that they discover, even if not specified in warrant;
(6) May not search the persons in the premises who aren't named in warrant, unless probable cause to arrest;
(7) May DETAIN occupants while a proper search is conducted.

Front 18

Exceptions to the Warrant Requirement.

Back 18

(1) Search Incident to Arrest

(2) Exigent Circumstances
(evanescent evidence, hot pursuit)

(3) Automobile Exceptions

(4) Plain view

(5) Consent

(6) Stop and Frisk

(6) Inventory searches

Front 19

Search Incident to Arrest.

Back 19

MUST be contemporaneous with arrest.

MAY search the person and areas into which he might reach to obtain weapons or destroy evidence ("reach and grab" area).

MAY conduct PROTECTIVE SWEEP of premises, if officer reasonably believes accomplices may be present.

Front 20

Automobile Exception to the warrant requirement for searches and seizures.

Back 20

To search a vehicle, an officer must have PROBABLE CAUSE to believe that a vehicle contains CONTRABAND or EVIDENCE OF A CRIME.

SCOPE OF SEARCH:
-- If officer PROBABLE CAUSE that contraband or evidence of a crime is inside the vehicle, they may search ENTIRE vehicle (including the trunk) and all containers within the vehicle that MIGHT CONTAIN THAT OBJECT, but may not search places that will certainly not contain the object.

LIMITED PROBABLE CAUSE: if police only have probable cause to search, for example, a container recently placed in a vehicle, may ONLY search the container and no other parts of the car.

Search extends to PASSENGERS belongings as well.

Applies to ANY VEHICLE (even a motor home).

Front 21

Plain view exception.

Back 21

Police may make a warrantless seizure when (i) police are legitimately on the premises; (ii) discover evidence, fruits or instrumentalities of crime, or contraband; (iii) see it in plain view; and (iv) have probable cause to believe that the item is evidence, contraband, or a fruit or instrumentality of a crime.

Front 22

Consent to a search and/or seizure.

Back 22

Police may conduct a valid warrantless search if they have a VOLUNTARY AND INTELLIGENT consent to do so.

Front 23

Exigent Circumstances (hot pursuit, evanescent evidence, and other emergencies)

Back 23

Hot Pursuit: police that are in hot pursuit of a fleeing felon may make a warrantless search and seizure. If pursuit begins in public and leads to private dwellings, police may continue pursuit.

Evanescent evidence: police may make a warrantless search and seizure if evidence is likely to disappear before a warrant can be obtained.

Other emergencies that permit warrantless searches and/or seizures: (i) contaminated food or drugs; (ii) children in trouble; (iii) burning fires; (iv) injury or threat of injury.

Front 24

Inventory searches.

Back 24

Police may search an arestee's personal belongings following arrest to inventory them.

After a vehicle has been impounded, police may search entire vehicle and any closed containers within.

Front 25

Border searches.

Back 25

No Fourth Amendment rights at the border (regardless of citizenship).

Front 26

Wiretapping and eavesdropping.

Back 26

Any form of electronic surveillance that violates a reasonable expectation of privacy constitutes a search under the Fourth Amendment.

WARRANT REQUIREMENTS FOR WIRETAP:
(1) showing of probable cause to believe that a specific crime has been committed;
(2) the suspected persons must be named; and
(3) warrant must describe with particularity the conversations that can be overheard;
(4) wiretap must be limited to a short period of time;
(5) provisions must be made for the termination of the wiretap when the desired information has been obtained; and
(6) a return must be made to the court, showing what conversations have been intercepted.

EXCEPTIONS:
(1) "Unreliable Ear" -- a speaker assumes the risk that the person whom she is talking to is recording.
(2) "Uninvited Ear" -- speaker has no 4th right if she makes no effort to keep conversation private.

Front 27

Methods of obtaining evidence that shock the conscience.

Back 27

Evidence obtained in a manner that offends the "sense of justice" inherent in due process is impermissible.

Surgery in order to obtain evidence in a human's body has been held unreasonable under this standard.

Front 28

Confessions.

Back 28

14th Amendment requires that a confession be VOLUNTARY and free from official compulsion.

Defendant has right to present evidence to the jury casting doubt on the voluntariness.

Front 29

Sixth Amendment Right to Counsel.

Back 29

In all criminal prosecutions, the defendant has a right to the assistance of counsel, which applies to all CRITICAL STAGES of the criminal prosecution (but not to precharge custodial interrogations).

VIOLATED when police deliberately elicit an incriminating statement from a defendant without obtaining a waiver of D's right to counsel.

6th Amendment Right to Counsel is OFFENSE SPECIFIC.

Front 30

Fifth Amendment - Privilege Against Self-Incrimination.

Back 30

Applicable to states through the 14th Amendment "incorporation" clause.

Protects against compelled self-incriminatory statements ("no person shall be a witness against himself").

Led to MIRANDA WARNINGS, a judge-made prophylactic requirements to ensure the protection of Fifth Amendment rights.

Miranda, requires that a person in custody, must be clearly informed that:
(i) he has the right to remain silent;
(ii) anything he says can be used against him in court;
(iii) he has the right to the presence of an attorney;
(iv) and if he cannot afford one, an attorney will be appointed for him if he desires.

Front 31

Miranda warnings.

Back 31

MUST be administered whenever a person is in custody (i.e., not free to leave).

MUST be administered BEFORE interrogation by the police.

Warnings need NOT be verbatim, as long as the substance is there.

Re-warning NOT needed after break, unless time lapse has been unreasonably long.

Waiver must be KNOWING, VOLUNTARY, AND INTELLIGENT.

If Miranda Right to Counsel (5th Amendment) is invoked , questioning must cease until the accused is provided with an attorney, or if defendant initiates further questioning himself. NOT OFFENSE SPECIFIC, so police can't ask about any other crime either.

Front 32

Which type of immunity is broadest and provides the most protection from prosecution?

Back 32

Transactional immunity, which immunizes a witness from being prosecuted by the granting sovereign for any crimes they may be required to testify about. A non-granting jurisdiciton may prosecute the witness, but the non-granting soveriegn may not use the immunized testimony nor any evidence that may ahve been derived from it.

**In derivative use immunity, the granting sovereign may prosecute the immunized witness so long as the prosecutor shows that the evidence was derived from a source independent of the immunized testimony.

Front 33

For double jeopardy purposes, two crimes do not constitute the same offense if a conviction for each crime requires ...

Back 33

proof of an element that the other does not. For example, robbery and burglary each have at least one element the other does not.

Front 34

What are the exceptions to the applicability of Miranda?

Back 34

(1) Waiver by suspect
(2) Spontaneous statement not in response to interrogation
(3) Use for impeachment of suspect's testimony (but cannot use post-warning silence)
(4) No Fruit of Poisonous Tree exclusions applied to Miranda violations
(5) Substantial compliance with the articulation of Miranda is enough
(6) Public safety exception (if it would sacrifice public safety)

Front 35

Right to counsel at lineup.

Back 35

Defendant has right to counsel at POST-CHARGE LINEUP OR SHOWUP (one-to-one confrontation between witness and suspect).

NO right to counsel during photo identifications.

NO right to counsel during evidence gathering from defendant (writing sample, etc.)

Defendant does NOT have right to DEMAND a lineup.

Front 36

Investigative Detentions.

Back 36

Police may briefly detain a person for investigative purposes if they a reasonoble suspicion supported by articulable facts.

Front 37

Automobile stops.

Back 37

It is a Fourth Amendment seizure, but permitted if police officer has reasonable suspicion that driver has violated a traffic law.

Front 38

When does a lineup violate due process?

Back 38

When it is unnecessarily suggestive and there is a substantial likelihood of misidentification.

Front 39

In-court identification after illegal lineup.

Back 39

A witness may make an in-court identification despite the existence of an ILLEGAL lineup, if the in-court identification has an independent source.

Front 40

The requirement that a confession must be voluntary is found in the:

Back 40

14th Amendment.

Front 41

Warrantless Search Exceptions

ICECAPS

Back 41

Warrantless Search Exceptions

Incident to arrest
Consent
Exigent Circumstances
Automobile exception
Plain view
Stop and frisk

Front 42

Valid Arrest.

Back 42

MUST be based on probable cause.

An arrest without probable cause may result in the exclusion of evidence.

Warrants not required for arrests made in public. They are required for arrests in the home.

Front 43

Probable cause to arrest.

Back 43

When, at the time of arrest, the officer has within his knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime.

Front 44

If police have probable cause to believe that an automobile itself is contraband, they may:

Back 44

seize the car without a warrant and conduct an inventory search.

Front 45

Preliminary hearing.

Back 45

Hearing that must be held within 48 hours after arrest arrest but before trial to determine whether there is probable cause for detention.

Defendants have Fourth Amendment right to be released from detention if there is not probable cause to hold him.

Front 46

Initial Appearance before magistrate.

Back 46

Soon after defendant is arrest, he must be brought before a magistrate who will advise her of her rights, set bail, and appoint counsel, if necessary.

This hearing may be combined with the preliminary hearing.

Front 47

Irresistible Impulse Test.

Back 47

Alternative Test for Insanity. (MI-DAD)

Because of mental illness, D was unable to control his actions or to conform his conduct to the law.

Front 48

Durham Rule.

Back 48

Alternative Test for Insanity. (MI-DAD)

Crime was the product of mental disease or defect.

Apply this test using the "but for" analysis.

Front 49

ALI Test for Insanity.

Back 49

Alternative Test for Insanity. (MI-DAD)

Combines the M'Naughten Test and the Irresistible Impulse Test.

D suffered from a mental disease or defect and as a result lacked substantial capacity together appreciate the criminality of his conduct or conform his conduct to the requirements of law.

Front 50

Diminished Capacity.

Back 50

Partial Insanity Defense.

Mental illness short of insanity may be asserted in a specific intent crime to mitigate the accused's culpability or reduce the charge to a lesser offense.

Front 51

Right to bail.

Back 51

Under the Eighth Amendment, an accused is entitled to bail in any non capital case.

Front 52

Effective assistance of counsel.

Back 52

Guaranteed by the Sixth Amendment.

The remedy for a claim of ineffective assistance of counsel is reversal of conviction and new trial.

Effective assistance is PRESUMED, unless the adversarial process is so undermined by the counsel's conduct that the trial cannot be relied upon to have produced a just result.

To succeed in an ineffective assistance claim, claimant must show:
(1) deficient performance by counsel; and that
(2) but for that deficiency, the result of the proceeding would have been different.

Front 53

Burden of proof.

Back 53

Defendant is presumed innocent until proven guilty beyond a reasonable doubt.

Front 54

Judge's role in advising defendant regarding the taking of a plea.

Back 54

Judge must determine that the plea is voluntary and intelligent. Must be done by addressing the defendant personally in open court on the record.

Just must ensure that defendant understands and knows:

(1) the nature of the charge and the crucial elements;
(2) the maximum possible penalty and any mandatory minimum;
(3) the right to not plead guilty, and that if he does, he waives the right to trial.

Attorney may inform defendant of the nature of the charge and each elements.

*If defendant's attorney makes unfair representations concerning the result of his guilty plea, the defendant is NOT BOUND BY HIS RECORD ANSWER.

Front 55

Guilty plea.

Back 55

A waiver of the Sixth Amendment right to trial.

Front 56

Bases for attack of a guilty plea after sentence.

Back 56

(1) Ineffective Assistance of Counsel;

(2) Involuntary Plea;

(3) Lack of Jurisdiction

Front 57

Sentencing and the Death Penalty.

Back 57

Defendant has Sixth Amendment right to counsel.

A penalty that is grossly disproportionate to the offense is cruel and unusual punishment and barred by the Eighth Amendment.

Death penalty is not inherently cruel and unusual, but it must be imposed only under a statutory scheme, that gives reasonable discretion, full information and guidance to the decision maker.

Front 58

Right to appeal.

Back 58

There is no constitutional right to appeal. However, if appeal is granted, defendant must be appointed counsel (cannot represent himself on appeal).

Front 59

Habeas Corpus

Back 59

Action for Unlawful State Detention

(1) no right to counsel
(2) preponderance of the evidence that detention is unlawful
(3) state may appeal the granting of a writ of habeas, and double jeopardy bars neither the appeal nor retrial after granting the writ;
(4) state defendant must be "in custody," but it's sufficient if he's out on bail

Front 60

5th Amendment Privilege against self-incrimination.

Back 60

ONLY applies to TESTIMONIAL evidence, NOT to physical evidence.

Only natural person may assert the privilege, not corporations or entities.

Privilege may be asserted:
(1) in proceedings where potentially incriminating information is sought;

NOT a defense to civil records requirements unless they are for a criminal law enforcement purpose.

Front 61

Can a defendant's silence after an arrest be later used against him in court?

Back 61

No, after an arrest a defendant has a right to remain silent, and his silence cannot be used against him.