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69 Cards in this Set

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Definition of __________:

(1) A DEFENSE to a CRIMINAL CHARGE;

(2) Based on D's MENTAL CONDITION;

(3) At the time he COMMITTED the charged crime.
INSANITY:

(1) DEFENSE to a CRIMINAL CHARGE;

(2) Based on D's MENTAL CONDITION;

(3) AT THE TIME he COMMITTED the charged crime.
YES or NO?

Can a D acquitted by reason of insanity be retried and convicted?
NO--A D that is ACQUITTED by reason of insanity CANNOT be retried and convicted!
__________--->This is:

---NOT a DEFENSE to a criminal charge; is

---A BAR to trial; and is

---Based on D's mental condition at the TIME OF THE TRIAL.
INCOMPETENCY TO STAND TRIAL:

This is--->

(1) NOT a DEFENSE to a criminal charge; is

(2) A BAR to trial; and is

(3) Based on D's mental condition at the TIME OF THE TRIAL.

NOTE: If D later regains his competency, he can then be tried and convicted.
DOUBLE JEOPARDY

A person may NOT be ________ for the same offense once _________ has attached.


When does jeopardy attach in:

--JURY TRIALS?

--BENCH TRIALS?
A person may NOT be RETRIED for the same offense once JEOPARDY has attached.


When does jeopardy attach:

--JURY TRIALS? At the empaneling and swearing of the jury

--In bench trials? When the first witness is sworn
Jeopardy generally does NOT attach in CIVIL PROCEEDINGS!

EXCEPTION---->
Jeopardy generally does NOT attach in CIVIL PROCEEDINGS!

EXCEPTION---->Juvenile proceedings

Ex. Commencement of a juvenile proceeding bars a subsequent criminal trial for the same offense.
EQUAL PROTECTION AND RIGHT TO COUNSEL ON APPEAL

Indigents must be given counsel at state expense during a FIRST APPEAL as a _________ of _________.
EQUAL PROTECTION AND RIGHT TO COUNSEL ON APPEAL

Indigents must be given counsel at state expense during a FIRST APPEAL as a MATTER of RIGHT.
The Miranda requirements do NOT apply to a witness testifying before a ________ __________.

NOTE: This is EVEN IF the witness was _________ to be there by subpoena.
The Miranda requirements do NOT apply to a witness testifying before a GRAND JURY.

NOTE: This is EVEN IF the witness was COMPELLED to be there by subpoena.
MIRANDA REQUIREMENT

Miranda warnings are a prerequisite to the ___________ of any statement made by D during a __________ ___________.
MIRANDA REQUIREMENT

Miranda warnings are a prerequisite to the ADMISSIBILITY of any statement made by D during a CUSTODIAL INTERROGATION.
WARRANT REQUIREMENT

A warrant must be based on a showing of _________ _________.

A police offer must submit to the _________ an __________ setting forth sufficient underlying circumstances to enable the magistrate to make a determination of probable cause __________ of the officer's conclusions.
WARRANT REQUIREMENT

A warrant must be based on a showing of PROBABLE CAUSE.

A police offer must submit to the MAGISTRATE an AFFIDAVIT setting forth sufficient underlying circumstances to enable the magistrate to make a determination of probable cause INDEPENDENT of the officer's conclusions.
PLAIN VIEW EXCEPTION

This exception to the warrant requirement applies ONLY when police are ___________ on the premises.
PLAIN VIEW EXCEPTION

This exception to the warrant requirement applies ONLY when police are LEGITIMATELY on the premises.
Police may seize an item that is mere ________ of a crime, SO LONG AS there is some _______ between the item seized and the commission of a crime.
Police may seize an item that is mere EVIDENCE of a crime, SO LONG AS there is some NEXUS between the item seized and the commission of a crime.
Police may seize an item that is mere ________ of a crime, SO LONG AS there is some _______ between the item seized and the commission of a crime.
Police may seize an item that is mere EVIDENCE of a crime, SO LONG AS there is some NEXUS between the item seized and the commission of a crime.
Miranda warnings are given to safeguard the ______ AMENDMENT right to be _____ from COMPELLED _____________.
Miranda warnings are given to safeguard the 5TH AMENDMENT right to be FREE from COMPELLED SELF-INCRIMINATION.
RIGHT TO COUNSEL

This right applies to ________ lineups, but NOT to ________ lineups.
RIGHT TO COUNSEL

This right applies to POST-CHARGE lineups, but NOT to PRE-CHARGE lineups.
A warrantless search by police is valid if they have a _________ and __________ consent to the search.
A warrantless search by police is valid if they have a VOLUNTARY and INTELLIGENT consent to the search.
FRUIT OF THE POISONOUS TREE

This is evidence obtained from ___________ of the ________ obtained evidence.
FRUIT OF THE POISONOUS TREE

This is evidence obtained from EXPLOITATION of the ILLEGALLY obtained evidence.
EXCLUSIONARY RULE

This prohibits introduction of evidence obtained in violation of D's ____, ____, and _____ AMENDMENT rights.
EXCLUSIONARY RULE

This prohibits introduction of evidence obtained in violation of D's 4TH, 5TH, and 6TH AMENDMENT rights.
FRUIT OF THE POISONOUS TREE RULE--EXCEPTIONS

All "fruit of the poisonous tree" must be excluded at trial.

EXCEPTIONS:

(1) Evidence obtained from a ________ ____________ of the original illegality;

(2) An __________ ACT OF ______ WILL by D; and

(3) _________ DISCOVERY.
FRUIT OF THE POISONOUS TREE RULE--EXCEPTIONS

All "fruit of the poisonous tree" must be excluded at trial.

EXCEPTIONS:

(1) Evidence obtained from a SOURCE INDEPENDENT of the original illegality;

(2) An INDEPENDENT ACT OF FREE WILL by D; and

(3) INEVITABLE DISCOVERY.
EXCLUSIONARY RULE---LIMITATIONS

This rule is INAPPLICABLE to:

(1) GRAND ________;

(2) ________ PROCEEDINGS;

(3) INTERNAL _________ RULES; and

(4) _________ REVOCATION PROCEEDINGS.
EXCLUSIONARY RULE---LIMITATIONS

This rule is INAPPLICABLE to:

(1) GRAND JURIES;

(2) CIVIL PROCEEDINGS;

(3) INTERNAL AGENCY RULES; and

(4) PAROLE REVOCATION PROCEEDINGS.
USE OF EXCLUDED EVIDENCE FOR IMPEACHMENT PURPOSES

Some illegally obtained evidence may STILL be used to impeach D's __________ if he takes the stand at trial.

Examples: An otherwise VOLUNTARY _________ taken in violation of Miranda is admissible for impeachment purposes.
USE OF EXCLUDED EVIDENCE FOR IMPEACHMENT PURPOSES

Some illegally obtained evidence may STILL be used to impeach D's CREDIBILITY if he takes the stand at trial.

Examples: An otherwise VOLUNTARY CONFESSION taken in violation of Miranda is admissible for impeachment purposes.
TRUE/FALSE:

The fruits derived from statements obtained in violation of Miranda are NOT admissible b/c of the exclusionary rule.
FALSE!

The fruits derived from statements obtained in violation of Miranda MAY be admissible DESPITE the exclusionary rule!
HARMLESS ERROR TEST

If _________ evidence is admitted, a resulting conviction should be overturned ____ ________ UNLESS the government can show ________ a ________ DOUBT that the error was _________.
HARMLESS ERROR TEST

If ILLEGAL evidence is admitted, a resulting conviction should be overturned ON APPEAL UNLESS the government can show BEYOND a REASONABLE DOUBT that the error was HARMLESS.
D is entitled to have the ___________ of evidence or a confession decided as a MATTER OF ______ by a _______ out of the hearing of the ______.

The government bears the burden of proof as to admissibility by a _________ OF THE EVIDENCE.
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.

The government bears the burden of proof as to admissibility by a PREPONDERANCE OF THE EVIDENCE.
4TH AMENDMENT

This provides that people should be free from __________ SEARCHES and SEIZURES.
4TH AMENDMENT

This provides that people should be free from UNREASONABLE SEARCHES and SEIZURES.
WHAT CONSTITUTES A SEIZURE?

This occurs when a ________ person would believe that she is _____ free to leave.
WHAT CONSTITUTES A SEIZURE?

This occurs when a REASONABLE person would believe that she is NOT free to leave.
ARREST

When police take a person into custody ________ HER WILL for purposes of CRIMINAL __________ or _________.
ARREST

When police take a person into custody AGAINST HER WILL for purposes of CRIMINAL PROSECUTION or INTERROGATION.
An arrest MUST be based on _________ _________.
An arrest MUST be based on PROBABLE CAUSE.
A WARRANT generally is NOT required before arresting a person in a _________ PLACE.
A WARRANT generally is NOT required before arresting a person in a PUBLIC PLACE.
INVESTIGATORY DETENTIONS (STOP AND FRISK)

If police have a __________ __________ of criminal activity or involvement in a completed crime, supported by ___________ FACTS (ie. not merely a hunch), they may _______ him for investigative purposes.
INVESTIGATORY DETENTIONS (STOP AND FRISK)

If police have a REASONABLE SUSPICION of criminal activity or involvement in a completed crime, supported by ARTICULABLE FACTS (ie. not merely a hunch), they may DETAIN him for investigative purposes.
VALID WARRANT

To be valid, a warrant MUST BE:

(1) Issued by a _______ and _______ magistrate on a showing of ________ CAUSE; and
be

(2) REASONABLY ________ as to the place to be _________ and items to be __________.
VALID WARRANT

To be valid, a warrant MUST BE:

(1) Issued by a NEUTRAL and DETACHED magistrate on a showing of PROBABLE CAUSE; and
be

(2) REASONABLY PRECISE as to the place to be SEARCHED and items to be SEIZED.
Does D have a 4TH AMENDMENT RIGHT?

Yes, if there has been a _______ by the _________ concerning a place or thing in which D had a REASONABLE __________ of _________.
Does D have a 4TH AMENDMENT RIGHT?

Yes, if there has been a SEIZURE by the GOVERNMENT concerning a place or thing in which D had a REASONABLE EXPECTATION of PRIVACY.
The 4TH AMENDMENT generally protects only against ____________ conduct, and NOT against searches by __________ PERSONS.
The 4TH AMENDMENT generally protects only against GOVERNMENTAL conduct, and NOT against searches by PRIVATE PERSONS.
Does X person have a reasonable expectation of privacy?

This determination is made on the _________ of the ___________.
Does X person have a reasonable expectation of privacy?

This determination is made on the TOTALITY of the CIRCUMSTANCES.
One has NO REASONABLE EXPECTATION OF PRIVACY in:

--__________ (ie. areas outside the home and related buildings)

--_______ left for collection;

--Land visible from a _______ place (even from a plane or helicopter); and

--The _______ of one's luggage.
One has NO REASONABLE EXPECTATION OF PRIVACY in:

--CURTILAGE (ie. areas outside the home and related buildings)

--GARBAGE left for collection;

--Land visible from a PUBLIC place (even from a plane or helicopter); and

--The SMELL of one's luggage.
A SEARCH WARRANT issued on the basis of an _________ will be INVALID if D establishes ALL 3 of the following:

(1) ________ STATEMENT;

(2) INTENTIONALLY or ___________ INCLUDED; and

(3) _________ TO THE FINDING OF PROBABLE CAUSE.
A SEARCH WARRANT issued on the basis of an AFFIDAVIT will be INVALID if D establishes ALL 3 of the following:

(1) FALSE STATEMENT

(2) INTENTIONALLY or RECKLESSLY INCLUDED; and

(3) MATERIAL TO THE FINDING OF PROBABLE CAUSE.
TRUE/FALSE:

Police may reasonably rely on the validity of a warrant.
TRUE!

Police may reasonably rely on the validity of a warrant---REGARDLESS OF an ultimate finding that it was NOT supported by PROBABLE CAUSE.
A police officer may stop a person w/o ________ CAUSE for arrest if he has a __________ and __________ SUSPICION of criminal activity.
A police officer may stop a person w/o PROBABLE CAUSE for arrest if he has a REASONABLE and ARTICULABLE SUSPICION of criminal activity.
A STOP is _____ an ARREST! Thus, an officer need _____ have PROBABLE CAUSE.
A STOP is NOT an ARREST! Thus, an officer need NOT have PROBABLE CAUSE.
A ________ will be justified ONLY if the officer ________ thinks that the suspect has a _________.
A FRISK will be justified ONLY if the officer REASONABLY thinks that the suspect has a WEAPON.
EXCEPTIONS TO WARRANT REQUIREMENT

VALID WARRANTLESS SEARCHES:

(1) Search ________ to lawful ________;

(2) "_____________" EXCEPTION;

(3) PLAIN _________;

(4) ________;

(5) ______ and FRISK; and

(6) HOT ________, EMERGENCIES
EXCEPTIONS TO WARRANT REQUIREMENT

VALID WARRANTLESS SEARCHES:

(1) Search INCIDENT to lawful ARREST;

(2) "AUTOMOBILE" EXCEPTION;

(3) PLAIN VIEW;

(4) CONSENT;

(5) STOP and FRISK; and

(6) HOT PURSUIT, EMERGENCIES
CONFESSIONS

For a self-incriminating statement to be admissible under the DPC, it must be ________, as determined by a ________ of the circumstances.

A statement will be involuntary ONLY if there is some ________ compulsion.
CONFESSIONS

For a self-incriminating statement to be admissible under the DPC, it must be VOLUNTARY, as determined by a TOTALITY of the circumstances.

A statement will be involuntary ONLY if there is some OFFICIAL compulsion.
If an involuntary confession is admitted into evidence, the __________ _________ TEST applies.

This means that the conviction need NOT be overturned if there is other ____________ evidence of guilt.
If an involuntary confession is admitted into evidence, the HARMLESS ERROR TEST applies.

This means that the conviction need NOT be overturned if there is other OVERWHELMING evidence of guilt.
Two offenses will be considered different if each requires proof of an __________ element that the other crime does ____ require.
Two offenses will be considered different if each requires proof of an ADDITIONAL element that the other crime does NOT require.
MIRANDA WARNINGS

For an admission or confession to be admissible under the 5TH AMENDMENT privilege against self-incrimination, a person in _______ must, ______ to INTERROGATION, be _______ that:

(1) He has the right to ________ _________;

(2) Anything he says CAN BE _______ ________ him in court;

(3) He has the right to presence of an ________; and

(4) If he cannot afford an attorney, one will be _________ for him if he so desires.
MIRANDA WARNINGS

For an admission or confession to be admissible under the 5TH AMENDMENT privilege against self-incrimination, a person in CUSTODY must, PRIOR to INTERROGATION, be INFORMED that:

(1) He has the right to REMAIN SILENT;

(2) Anything he says CAN BE USED AGAINST him in court;

(3) He has the right to presence of an ATTORNEY; and

(4) If he cannot afford an attorney, one will be APPOINTED for him if he so desires.
INTERROGATION: Any WORDS or _______ by the ________ that they SHOULD KNOW would _______ ELICIT a _______ from D.
INTERROGATION: Any WORDS or CONDUCT by the POLICE that they SHOULD KNOW would LIKELY ELICIT a RESPONSE from D.
WAIVER

A suspect can waive his Miranda rights, but the _________ must prove that it was _________, ___________, and __________.
WAIVER

A suspect can waive his Miranda rights, but the PROSECUTION must prove that it was KNOWING, VOLUNTARY, and INTELLIGENT.
A D can attack an IDENTIFICATION as denying due process if it is ___________ SUGGESTIVE and there is a _________ LIKELIHOOD of ____________.
A D can attack an IDENTIFICATION as denying due process if it is UNNECESSARILY SUGGESTIVE and there is a SUBSTANTIAL LIKELIHOOD of MISIDENTIFICATION.
The state may place the burden on D of proving INCOMPETENCY by a _____________ of the evidence.
The state may place the burden on D of proving INCOMPETENCY by a PREPONDERANCE of the evidence.
RIGHT TO JURY TRIAL

There is ____ constitutional right to jury trial for petty offenses, but ONLY for _______ offenses.

An offense is serious if it authorizes imprisonment for MORE THAN __________.

NOTE: There is NO right to jury trial in __________ DELINQUENCY PROCEEDINGS.
RIGHT TO JURY TRIAL

There is NO constitutional right to jury trial for petty offenses, but ONLY for SERIOUS offenses.

An offense is serious if it authorizes imprisonment for MORE THAN 6 MONTHS.

NOTE: There is NO right to jury trial in JUVENILE DELINQUENCY PROCEEDINGS.
A death sentence imposed by a jury from which a juror was improperly excluded is subject to ________ _________.
A death sentence imposed by a jury from which a juror was improperly excluded is subject to AUTOMATIC REVERSAL.
Are INCONSISTENT VERDICTS reviewable?
NO!--INCONSISTENT VERDICTS are NOT reviewable!

ie. finding D guilty and co-D innocent on the same evidence
RIGHT TO COUNSEL

A D has a right to counsel. Violation of this right ____ _______ requires _______.

For nontrial denials, the _________ ________ test is applied.
RIGHT TO COUNSEL

A D has a right to counsel. Violation of this right AT TRIAL requires REVERSAL.

For nontrial denials, the HARMLESS ERROR test is applied.
PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

Only ________ ________ may assert the privilege, NOT _________.

When may a person refuse to answer a question?
PRIVILEGE AGAINST COMPELLED SELF-INCRIMINATION

Only NATURAL PERSONS may assert the privilege, NOT CORPORATIONS.

A person may refuse to answer a question whenever his response might furnish a LINK in the CHAIN OF EVIDENCE needed to prosecute him.
A _________ D has a right NOT to take the witness stand at trial and NOT to be asked to do so.
A CRIMINAL D has a right NOT to take the witness stand at trial and NOT to be asked to do so.
PRIVILEGE AGAINST SELF-INCRIMINATION

The privilege MUST be claimed in _______ proceedings to prevent the privilege from being waived for a later __________ prosecution.
PRIVILEGE AGAINST SELF-INCRIMINATION

The privilege MUST be claimed in CIVIL proceedings to prevent the privilege from being waived for a later CRIMINAL prosecution.
5TH AMENDMENT PRIVILEGE

This protects ONLY ____________ or ____________ evidence and NOT ________ or __________ evidence.
5TH AMENDMENT PRIVILEGE

This protects ONLY TESTIMONIAL or COMMUNICATIVE evidence and NOT REAL or PHYSICAL evidence.
COMPULSORY PRODUCTION OF DOCUMENTS

There is _____ a privilege to refuse.
COMPULSORY PRODUCTION OF DOCUMENTS

There is NOT a privilege to refuse.
When does violation of the Self-Incrimination Clause occur?

It does NOT occur UNTIL a person's _________ statements are used ___________ him in a ___________ case.
When does violation of the Self-Incrimination Clause occur?

It does NOT occur UNTIL a person's COMPELLED statements are used AGAINST him in a CRIMINAL case.
COMMENTS ON D'S SILENCE

A prosecutor (may/may NOT) comment on D's silence after being arrested and receiving Miranda warnings.

A prosecutor (may/may NOT) comment on D's failure to ________ at trial.

However, a D, upon _______ motion, is entitled to have the ______ instruct the jury that they may NOT draw an adverse _________ from D's failure to testify.

The JUDGE may offer this instruction _____ ________, even OVER D'S OBJECTION.
COMMENTS ON D'S SILENCE

A prosecutor may NOT comment on D's silence after being arrested and receiving Miranda warnings.

A prosecutor may NOT comment on D's failure to TESTIFY at trial.

However, a D, upon TIMELY motion, is entitled to have the JUDGE instruct the jury that they may NOT draw an adverse INFERENCE from D's failure to testify.

The JUDGE may offer this instruction SUA SPONTE, even OVER D'S OBJECTION.
GRANT OF IMMUNITY

A ________ may be compelled to answer questions if granted _________ immunity from _________.

HOWEVER, he may STILL be prosecuted if the prosecutor shows that the evidence to be used against the witness was derived from a source ____________ of the immunized testimony.
GRANT OF IMMUNITY

A WITNESS may be compelled to answer questions if granted ADEQUATE immunity from PROSECUTION.

HOWEVER, he may STILL be prosecuted if the prosecutor shows that the evidence to be used against the witness was derived from a source INDEPENDENT of the immunized testimony.
TRUE/FALSE:

Immunized testimony may NOT be used for impeachment of a D's testimony at trial.
TRUE!

Immunized testimony may NOT be used for IMPEACHMENT of a D's testimony at trial.
The use of testimony by another SOVEREIGN is ___________.
The use of testimony by another SOVEREIGN is PROHIBITED.

Ex.: Federal prosecutors may NOT use evidence obtained as a result of a state grant of immunity, and vice versa.
Immunity extends ONLY to offenses to which the question relates and does NOT protect against _________ committed during immunized testimony.
Immunity extends ONLY to offenses to which the question relates and does NOT protect against PERJURY committed during immunized testimony.
WAIVER OF PRIVILEGE AGAINST SELF-INCRIMINATION

A CRIMINAL D waives the privilege by taking the _______ stand--to the extent necessary to subject him to any ____________.

A WITNESS waives the privilege ONLY if he discloses ___________ information.
WAIVER OF PRIVILEGE AGAINST SELF-INCRIMINATION

A CRIMINAL D waives the privilege by taking the WITNESS stand--to the extent necessary to subject him to any CROSS-EXAMINATION.

A WITNESS waives the privilege ONLY if he discloses INCRIMINATING information.
JUVENILE COURT PROCEEDINGS

The following rights must be given to a child during trial of a delinquency proceeding:

(1) Written _______ of charges;

(2) ________ of COUNSEL;

(3) Opportunity to _________ and cross-examine witnesses;

(4) The right _____ to ________; and

(5) The right to have _______ established by proof ________ a ________ DOUBT.
JUVENILE COURT PROCEEDINGS

The following rights must be given to a child during trial of a delinquency proceeding:

(1) Written NOTICE of charges;

(2) ASSISTANCE of COUNSEL;

(3) Opportunity to CONFRONT and cross-examine witnesses;

(4) The right NOT to TESTIFY; and

(5) The right to have GUILT established by proof BEYOND a REASONABLE DOUBT.
The Supreme Court has held that there is NO right to _______ by _________ in DELINQUENCY PROCEEDINGS.
The Supreme Court has held that there is NO right to TRIAL by JURY in DELINQUENCY PROCEEDINGS.
DOUBLE JEOPARDY

If the juvenile court adjudicates the child a delinquent, _______ has attached and the prohibition against double jeopardy _______ him from being tried as an ________ for the same behavior.
DOUBLE JEOPARDY

If the juvenile court adjudicates the child a delinquent, JEOPARDY has attached and the prohibition against double jeopardy PROHIBITS him from being tried as an ADULT for the same behavior.
RIGHT TO COUNSEL

This right applies to ________ lineups, but NOT to ________ lineups.
RIGHT TO COUNSEL

This right applies to POST-CHARGE lineups, but NOT to PRE-CHARGE lineups.
HARMLESS ERROR TEST

This applies to improper comments by the prosecution:

The conviction will ____ be overturned if the prosecution can show _______ A _________ _______ that the comments did ____ affect the outcome of the case.
HARMLESS ERROR TEST

This applies to improper comments by the prosecution:

The conviction will NOT be overturned if the prosecution can show BEYOND A REASONABLE DOUBT that the comments did NOT affect the outcome of the case.