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76 Cards in this Set
- Front
- Back
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Exclusionary rule; exceptions and limitations to exclusion (4)
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1 NOT applicable to civil cases, quasi-crim proceedings like deportation or parole revocation hearings
2 NOT applicable to grand jury proceedings 3 NOT applicable to impeachment of D's own testimony 4 Good faith reliance |
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Impeachment rule; though inadmissible otw, it's okay to get the following in... (3)
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1 Improperly Mirandized statements
2 Pre or post arrest unMirandized silence (e.g. where D is silent as to self-defense for 2 wks after arrest; BUT once Miranda warnings given, only pre-Mirandized silence allowed) 3 Unconstitutionally seized evid IF D testifies in a manner inconsistent with that evid |
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Impeachment exception to exclusion does NOT apply to:
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1 Coerced confessions
2 Post-Miranda silence 3 Massiah violations (6th amendment rt to counsel) |
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Good faith reliance exception: applications (3)
When does the exception NOT apply? (4) |
Applies to:
1 Judicial opinion later changed by another decision 2 Statute or ordinance later declared unconstitutional 3 Search warrant defective as a result of insufficient probable cause (there are exceptions) ** 1 Affidavit is so lacking in probable cause that no reasonable officer could rely upon it 2 Warrant is invalid on its face 3 Affiant lied to or intentionally misled the magistrate (rare subjective standard for officers) 4 Magistrate "wholly abandoned his judicial role" |
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How can a magistrate wholly abandon his judicial role? 3 ways
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Magistrate:
1 Was also a prosecutor 2 Was paid per search warrant 3 Acted in such a way so as to have become a member of the law enforcement team |
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Evid obtained from violation of 4th, 5th, 6th amendments is fruit of the poisonous tree.
What are the exceptions to that doctrine? What evid can be admitted despite violations of those amendments? (5) |
1 Free will, or independent acts by the accused that are seen as breaking the chain of taint btw original unconstitutional police action and the evid derived from it
2 Inevitable discovery, preponderance standard 3 Fruits derived from stmts obtained in violation of Miranda 4 Knock and announce violations in execution of warrants 5 Evid obtained from a source independent of the original illegality |
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Arrest warrants; with respect to arrest at a residence, are they required vs. not required (1 each)
Exception for when required? |
NOT required for arrests made in public places SO LONG AS there is full probable cause justifying arrest
Required for non-emergency arrests in a residence IF the arrestee: 1 Lives there OR 2 Is spending the night there EXCEPTION to home requirement: EMERGENCY |
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Search and seizure
When is and isn't there state action? (1 each) |
NO if the search was not conducted by or at the urging of the gov't
Police officers are ALWAYS officers, on or off duty doesn't matter |
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Search and seizure
What is required for standing? |
Reasonable expectation of privacy in the area searched or the items seized
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Search and seizure
Circumstances with NO reasonable expectation of privacy (7) |
1 Eavesdropping under certain circumstances (e.g., two guys on a bus talking loudly about crime in presence of officers)
2 Scraping paint off vehicle exterior 3 Monitoring vehicles in public places (pretextual stops okay SO LONG AS proper legal justification for stop) 4 Searching open fields 5 Observing during a fly-over conducted in public airspace 6 Searching for contraband SO LONG AS a Only the presence or absence of the contraband will be revealed by search (e.g. drug-sniffing dog) b It's NOT a house 7 Searching garbage containers left for pick-up on public street |
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Search and seizure
Three automatic circumstances that trigger standing with respect to the connection btw the suspect and the place of arrest Two likely circumstances that trigger standing |
AUTOMATIC standing when accused:
1 Owns the premise searched 2 Lives on the premises searched 3 Is an overnight guest at the premise searched LIKELY standing when accused: 1 Was legitimately present during search 2 Owned property seized at the time it was seized |
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Search and seizure
4 step approach |
1 Was there State Action?
2 Was there standing? 3 Did police have a search warrant? 4 Exceptions to search warrant |
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Search and seizure
2 special circumstances: illegal activity in home; automobile passengers |
1 People conducting illegal activity in home have NO standing (e.g. drug dealers dealing drugs have NO standing despite being in a residence)
2 Passengers a NO passenger standing to object to search the car UNLESS passenger had a reasonable expectation of privacy in area actually searched (e.g. purse) b NO standing to object to introduction of evid of contents of a suitcase found in trunk UNLESS passenger provides evid that suitcase and/or its contents belong to them |
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Five question approach to know if the police have a valid search warrant
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1 Was there probable cause for issuance?
a Remember good faith exception b Totality of circumstances test c Anonymous tips are okay 2 Did neutral and detached magistrate issue the warrant? 3 Was the magistrate given enough info to make a commonsense evaluation based on totality of circumstances? 4 Was the warrant properly executed? 5 Does the warrant state with sufficient particularity the place to be searched and the type of items sought? |
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Normally, no warrant or an invalid warrant would be bad, BUT these are the exceptions to that... (8)
Acronym |
BEACH SPA
1 Search incident to lawful arrest w/probable cause (routine search incident to incarceration always okay even w/o probable cause) 2 Automobile exception 3 Border searches 4 Plain view 5 Stop and frisk 6 Consent 7 Evanescent 8 Hot pursuit |
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Probable cause; useful phrases for exam
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--Totality of the circumstances
--Commonsense evaluation by magistrate |
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Search incident to lawful arrest elements (3)
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1 Arrest must be lawful
2 Search must be contemporaneous in time and place to the arrest (e.g., cop canNOT arrest suspect, place suspect in patrol car, then re-enter to search UNLESS automobile search) 3 Search must be limited to suspect's wingspan |
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Search incident to lawful arrest and protective sweeps: where can police search in a home incident to an arrest made there? Two scenarios. And reasonable suspicion/probable case/warrant?
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Police CAN look in areas "immediately adjoining" the place of arrest for other persons who might attack police; NO probable cause or reasonable suspicion required
For areas NOT immediately adjoining, police CAN search ONLY IF police have reasonable suspicion that there is a dangerous person somewhere |
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Automobile exception
What level of warrant/suspicion/cause if any? |
Probable cause
But NO warrant needed |
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Automobile exception; when can probable cause arise?
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Either before OR after stop
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Automobile exception; where can police search?
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The whole vehicle, including the trunk, and any packages or containers that could reasonably contain the items for which police have probable cause to search
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Border search exception
What level of warrant/suspicion/cause if any? |
NO warrant, reasonable suspicion necessary INCLUDING int'l mail
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Plain view exception
Definition |
Items seized must have been seen, heard, smelled or felt by the officers at a time when officers were in a place they had a constitutional right to be
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Plain view exception
Warrant/cause/suspicion if any? |
Probable cause to connect the item seized to the crime UNLESS abandoned property
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Stop and frisk
Warrant/cause/suspicion if any? |
Reasonable suspicion is enough to stop; if reasonable suspicion of weapon, then frisk
If reasonable belief that frisk indicates a weapon/contraband, officer may admit it into evid |
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Probable cause vs. reasonable suspicion
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Reasonable suspicion requires LESS objective evid of criminality on part of the suspect than does probable cause
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Stop and frisk
What is permissible? Warrant, cause, suspicion needed? |
Pat down or frisk of exterior of suspect's clothing for weapons OR contraband WHERE there is reasonable suspicion of criminal activity
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Stop and frisk
What if evid other than a weapon is found? |
Constitutional admission as evid depending on HOW MUCH LIKE a weapon the item may have reasonably seemed during the exterior pat down
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Consent exception
Elements (2) |
Must be
1 Voluntary AND 2 Intelligent |
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Consent exception
Third party consent rule + limitation |
Where 2 or more persons have or are reasonably believed to have an equal rt to use or occupy a piece of property or premises, then either one can consent to a warrantless search and bind the other UNLESS one objects
BUT, third party canNOT allow police to search in a place where that third party would not have had access (e.g., mom has access to son's room generally, but NOT to his locked cabinet) |
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Evanescent exception
Definition |
When evid could significantly disappear in time needed to obtain a warrant (e.g. blood alcohol test)
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Evanescent exception
Bodily intrusion issues |
Bodily intrusion must be reasonable
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Hot pursuit exception to warrant requirement
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Must occur within minutes after suspect has entered any home, not necessarily suspect's
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Wiretapping/eavesdropping
Does it require a warrant? Any exceptions? (3) |
All wiretapping and eavesdropping requires a warrant
Exceptions: 1 Assume the risk that the person to whom we are speaking has agreed to allow the police to listen (snitches) 2 Pin-register numbers and the like are NOT protected (phone numbers dialed) 3 Eavesdropping allowed where NO reasonable expectation of privacy |
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Double jeopardy
Exceptions (6) |
1 Jury is NOT able to reach verdict (hung jury)
2 Mistrial is granted 3 Successful defense appeals UNLESS reversal based on insufficiency of evid 4 Failure of D to keep an agreed upon plea bargain 5 Separate sovereigns 6 D tried for battery, then victim dies, D can be retried for homicide |
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Double jeopardy
When in the life of a case does jeopardy attach itself to a case? |
ONLY at trials once the first oath has been taken (jury at jury trial, otw first witness)
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Double jeopardy
How close must one crime resemble the other? Rule + exception |
Two crimes do NOT constitute the same offense IF a conviction for each require proof of an element that the other does not
EXCEPTION IF D tried for battery and later victim dies, D can be re-tried for homicide |
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Double jeopardy
Collateral estoppels and res judicata; rule + limitation |
Re-litigating a factual issue to a D's detriment is barred for ONLY acquittals; NO application to convictions
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Confessions
For Miranda to apply to a factual scenario, what two aspects of the scenario must be there? |
1 Custody (3 exceptions)
AND 2 Interrogation |
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Confessions; Miranda
Three scenarios that are NOT custody |
1 Probation interviews
2 Tax audit interviews AND 3 Period early in routine traffic stops |
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Confessions; Miranda
Police must do one of two things for answers to custodial interrogations to be constitutionally admissible when offered against interrogated suspect on prosecution's case-in-chief |
1 Mirandize
OR 2 Obtain waiver |
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Confessions; Miranda
Waiver must be given how? (2) |
1 Voluntarily
2 Intelligently |
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Confessions; Miranda
Exceptions to Miranda (6) |
1 Waiver
2 Spontaneous statement NOT in response to interrogation 3 Use for impeachment of suspect's testimony 4 "No fruit of the poisonous tree" exclusion is applied to Miranda violations 5 Substantial compliance with the articulation of Miranda 6 Public safety exception applies to Miranda |
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Confessions; Miranda
Edwards case; right to remain silent vs right to counsel |
1 Rt to remain silent
a If suspect has exercised Miranda rts to remain silent, police may not again attempt to obtain a waiver of those rts with respect to the "same" crime b BUT, if suspect has ONLY exercised rt to silence AND NOT rt to attorney, police may attempt to obtain a Miranda waiver w/respect to other crimes 2 Miranda-related 5th Amendment Rt to counsel a Once suspect requests an attorney during Miranda warning/interrogation AND he is still in custody, he may NOT again be interrogated w/o attorney, EVEN IF questioning relates to a different crime b BUT, IF D reinitiates questioning, of his own volition, he can say to have waived this rt |
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6th Amendment Rt to Counsel During Police Questioning
Applies when D is BOTH: Is it offense specific? |
1 Rep'd by counsel
AND 2 Formal proceedings have commenced (after being charged, but NOT before) YES, offense specific, so NO PROTECTION for question about unrelated, uncharged offenses (BUT, may violate 5th amendment rts) |
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Pre-trial identification
General rule w/re to 6th amendment rt to counsel + exceptions |
D is entitled to counsel under 6th Amendment at "post" indictment/arraignment (i.e. post-charge) IN-PERSON line-ups/show-ups (show up is meeting btw accused and witness for identification)
MUST actually be a showup/lineup; COINCIDENTAL run-ins are NOT enough (though my fail acc to 14th amendment) NOT needed for: 1 Photo line-up 2 Taking of a handwriting sample |
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Pre-trial identification
Denial of Due Process IF |
Line-up or show-up is so unnecessarily suggestive as to create a substantial likelihood that it will produce a misidentification
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Pre-trial identification
IF line-up is NOT constitutional, then what about line-up and in-court identifications? |
1 Line-up identification is NOT admissible
2 In-court identification is NOT admissible UNLESS gov't can prove, by clear and convincing evid, that there was an independent source for witness' in-court identification |
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Rt to counsel during judicial proceedings
Rt to appointed counsel extends to what? |
Rt to appointed counsel ONLY IF jail tie is possible, NOT for minor misdemeanors w/o jail possibility
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Rt to counsel during judicial proceedings
Expert appt |
Rt to effective assistance of counsel includes rt to appt of necessary experts in felonies
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Rt to counsel during judicial proceedings
Appeals; rule + limitations |
Rt to counsel guarantees an attorney for first appeal of right
Rt does NOT extend to: 1 Writs of habeas corpus OR 2 Appeals to 2nd level of appellate ct |
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Rt to counsel during judicial proceedings
Ineffective assistance of counsel requirements (2) |
D must show that:
1 His crim defense attorney's performance was unreasonably deficient (below standard of care) AND 2 But for his attorney's defective performance, result of proceedings would have been different |
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Grand Jury
Unique aspects |
1 NO application to states
2 NO application of exclusionary rule 3 NEITHER D NOR attorney have rt to be present, NOR to call witnesses |
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Bail
Aspects |
1 May be immediately appealed
2 Preventive detention CAN be constitutional (i.e. no due process problem) SO LONG AS D had opportunity for hearing on preventive detention issue |
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Bail
Preventive detention; constitutionality, elements |
CAN be constitutional (i.e. no due process problem) SO LONG AS D had opportunity for hearing on preventive detention issue
Court must determine: 1 NO amount of bail would insure D's return OR 2 IF D were released, there would be no way to insure safety of community |
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Jury trials
Numbers and unanimity of verdict |
Jury of 12 need NOT be unanimous
6 is enough, but jury of 6 MUST be unanimous |
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Jury trials
Constitutional rt to what kind of offense? |
To trial by jury for ALL non-petty offenses (where potential sentence is 6 months +)
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Jury trials
Jury pool standard |
Jury pool (NOT individual jury) must represent a fair cross-section of community
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Jury trials
Peremptory challenges, constitutionality |
NO explanation necessary UNLESS b/c of race or gender
Attorney (defense or prosecution) issuing peremptory challenge must defend against bias charge |
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Jury trials
Death penalty issues |
Prosecution may NOT automatically exclude jurors simply b/c they express doubt about death penalty UNLESS their opposition will clearly impair ability to follow court's instructions
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Guilty pleas
For plea to be valid, what must judge communicate to D? Standard for valid acceptance of plea by D? |
Judge must communicate:
1 Nature of charge 2 Max penalty, mandatory minimum 3 Rt not to plead guilty; waive rt to trial if does plead guilty ** D must accept: 1 Voluntarily AND 2 Intelligently |
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Guilty pleas
Effect of ineffective assistance of counsel |
D has constitutional rt to withdraw plea
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Guilty pleas
Post-sentencing guilty pleas constitutional EXCEPT WHERE (4) |
1 Plea was involuntary
2 Trial court lacked rt to hear the case (double jeopardy, e.g.) 3 Failure to keep an agree-upon plea bargain 4 Ineffective assistance of counsel |
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When is a roadblock legal? (2)
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Cars stopped on neutral, articulable basis
AND Designed to serve purposes closely related to particular problem pertaining to cars and their mobility |
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What does the 6th Amendment right to confront witnesses trigger w/re to joint Ds? Rule + exceptions (3)
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If 2 persons tried together, and one gives confession that implicates the other, rt of confrontation prohibits use of that stmt
UNLESS: All portions referring to other D are eliminated Confessing D takes stand and subjects himself to cross OR Confession of nontestifying co-D (the one who made the implicating stmt) is being used to rebut the D's claim that his confession was obtained coercively |
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How can D forfeit the 6th amendment rt to confrontation of witnesses?
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By wrongdoing, trying to prevent the witness from testifying
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What does the 5th amendment require as to suspects?
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5th amendment requires that a suspect be advised of his constitutional rts BEFORE being subjected to custodial interrogation
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What is a custodial interrogation? (2)
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One were police interrogate a suspect in custody AND know or should know that such question will elicit an incriminating response.
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Are traffic stops custodial?
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NO; so NO Miranda requirement
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What does the 6th amendment require? (2)
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That a D NOT be questioned by police after he has been formally charged with an offfense AND the rt to confront adverse witnesses
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When does probable cause exist? Definition (2)
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When a reasonable person would deduce that a crime occurred and that the D committed it
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Automobile exception vs search incident to lawful arrest exception (exceptions from warrant requirement) with respect to where an officer can search in car
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Automobile exception--once probable cause established that vehicle contains evid of crime or contraband, police can search ENTIRE car
Search incidental to lawful arrest--IF D's arrest is supported by probable cause, police can search car areas within arrestee's and passenger's reaches |
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What does the Miranda warning contain?
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Rt to remain silent
Anything you say can be used against you Rt to presence of an atty AND If you can't afford atty, one will be appointed |
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What can ct impose on D who gets free counsel due to indigence?
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Payment IF D can later afford it
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Imposition of counsel despite D knowingly and intelligently waived the rt voids the verdict when?
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Always UNLESS D is totally acquitted
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What rts can be violated by improper confessions? How can they be violated?
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14th amendment rt to voluntariness via coercion or involuntariness (harmless error)
6th amendment rt to counsel AFTER formal proceedings have begun (unless waiver), and this is offense specific 5th amendment Miranda rts for custodial interrogations (except grand jury) |
