Criminal Procedure Mbe

Front 1

INCORPORATION OF BILL OF RIGHTS

Back 1

Only two rights have not been incorporated to the states:
1. Right to indictment by grand jury
2. Prohibition against excessive bail

Front 2

SIXTH AMENDMENT
Right to counsel

Back 2

In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.

Front 3

FIFTH AMENDMENT
Self-incrimination and due process

Back 3

No person shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law.

Front 4

FOURTH AMENDMENT
Searches and seizures

Back 4

The Fourth Amendment, incorporated to the states through the 14th Amendment, prohibits unreasonable searches and seizures by state agents.

Front 5

SEARCH

Back 5

A search is a government intrusion into an area in which someone has an objective, reasonable expectation of privacy.

Front 6

FOURTH AMENDMENT
Warrants

Back 6

The Fourth Amendment, incorporated to the states through the 14th Amendment, provides that no warrant shall issue but on probable cause supported by an oath or affirmation and describing with particularilty the places to be seized and things to be seized.

Front 7

SEIZURE

Back 7

A seizure takes place of an object if there is a substantial interference with a person’s possessory interest. A person is seized if the police
1. by force or a show of authority
3. have in some way restrained the liberty of a person
4. so that a reasonable person would not feel free to leave.

Front 8

FOURTH AMENDMENT
Analysis of a violation

Back 8

Follow these steps:
1. state action
2. standing
3. reasonable expectation of privacy by defendant
3. was there a valid warrant
4. if no warrant, does an exception apply
5. exclusionary rule/fruit of poisionous tree
6. exceptions to exclusionary rule

Front 9

STANDING
Automatic

Back 9

In order to show standing for a Fourth Amendment violation, one must show that there was the government intrusion into an area in which the individual had an objective reasonable as well as a subjective expectation of privacy. A person automatically has standing if he
1, owns
2. lives on
3. or is an overnight guest on the premises

Front 10

STANDING
Possible

Back 10

A person may have standing if
1. Has a property or possessory interest in the place searched or thing seized
2. Has the right to exclude others from that place
3. Has exhibited a subjective expectation of privacy
4. Took precautions to maintain his or her privacy
5. Was legitimately on the premises. Limited use for business purposes does not convey standing.

Front 11

REASONABLE EXPECTATION OF PRIVACY

Back 11

A person has the highest expectation of privacy in his own home. Also protected are
1. hotel rooms
2. private office of a business or corporation
3. private areas of a store
4. areas within the curtilage

Front 12

LESSER EXPECTATION OF PRIVACY

Back 12

There is a less expectation of privacy in an automobile, and no expectation of privacy in the vehicle identification number. Following a valid stop, officer may reach in the car to clear anything obstructing the view of the number.

Front 13

NO EXPECATION OF PRIVACY
Things held out to the public

Back 13

1. Sound of your voice
2. Handwriting
3. Fingerprints
4. Paint on car
5. Smell of luggage
6. bank records
7. Car's movement
8. Anything visible in open fields
9. Anything visible from a flyover
10. Garbage set out for collection

Front 14

NO EXPECTATION OF PRIVACY
Other situations

Back 14

No expectation of privacy in
1. prison cells
2. prisoner's body cavities
3. abandoned property
4. properly discarded by fleeing person who has not be seized by police

Front 15

PROBABLE CAUSE
for a search

Back 15

Facts and circumstances are such that a reasonable prudent person would believe that the search will yield contraband, evidence or the fruits or instrumentalities of crime in the place searched.

Front 16

PROBABLE CAUSE
for an arrest

Back 16

Facts and circumstances would cause a reasonable prudent person to believe that it was more likely than not that a crime had been committed and the defendant did it.

Front 17

ARREST WARRANT
When needed

Back 17

1. Not needed to arrest for a felony if the officer has probable cause.
2. Not needed for a misdemeanor committed in officer's present.
3. Not needed for arrest in public place
4. Needed for non-emergency arrest in person's home

Police may arrest without a warrant for a misdemeanor committed within their presence. Presence includes the use of all the officer’s senses, including smell.

Front 18

SOURCES OF PROBABLE CAUSE

Back 18

Sources include:
1. officer's observations
2. officer's expertise
3. circumstantial evidence
4. information from other sources -- other officers or informants

Front 19

WARRANT REQUIREMENT

Back 19

1. Personal contact of officer with a neutral and detached magistrate
2. showing of probable cause
3. description of place to be search
4. description of objects to be seized

Front 20

PROBABLE CAUSE FOR A WARRANT
Factors to consider

Back 20

Factors must be considered under the totality of the circumstances.
1. Flight
2. Furtive movements
3. Real evidence –
4. Admitted ownership of contraband
5. False or improbable answers
6. Past criminal conduct if officer has firsthand knowledge
7. Presence at a crime scene or in a high-crime area

Front 21

GOOD-FAITH EXCEPTION TO WARRANT REQUIREMENT
When it does not apply

Back 21

The exception for good faith reliance on a defective search warrant will not apply if
1.The affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it
2. The warrant is invalid on its face
3. The police officer lied to the magistrate
4. The magistrate wholly abandoned his judicial role.

Front 22

WARRANTS
Probable cause

Back 22

A totality of the circumstances test is used to determine if there is probable cause for a warrant if the affidavit contains hearsay. The factors to be taken into account are
1.Credible information
2.Reliability of the informant
3.Police corroboration
4.And a declaration against interests.

Front 23

WARRANTS
Particularity

Back 23

Place to be searched and things to be seized must be specified on the warrant itself, and not just in the affidavit. The warrant’s description of things to be seized does not have to be exact, but it has to reasonably restrict what can be seized.

Front 24

WARRANT
Neutral and detached magistrate

Back 24

Magistrate must not
1. have a financial or other stake in the issuance of the warrant or
2. abandon his role to become an agent of law enforcement.

Front 25

WARRANTS
Challenging validity

Back 25

Under Franks v. Delaware, a defendant can challenge the affidavit upon which a warrant was based by providing by a preponderance of the evidence that
1.The affidavit contained false statements
2.The statements were made intentionally, knowingly or in reckless disregard of the truth
3.The magistrate could not have found that there was probable cause without those statements.

Front 26

EXECUTION OF A WARRANT

Back 26

1. Knock and announce unless to do so would endanger officers or allow evidence to be destroyed
2. If they are refused admittance, the officers may break down any door or window or barrier.
3. In California, warrants can ordinarily be served between 7 a.m. and 10 p.m. But on a showing of good cause, a magistrate can provide for it to be executed at any time.
4. Must be executed in a timely manner while probable cause still exists. In California, presumed timely if within 10 days.
5. Persons named in warrant may be detained.
6. Reasonable suspicion needed to search persons not named in the warrant.

Front 27

WARRANT EXCEPTIONS
Praise cash

Back 27

1. Plain view
2. Regulatory search
3. Arrest
4. Inventory
5. Sweep
6. Exigent circumstances
7. Consent
8. Automobile
9. Hot pursuit

Terry Consented to a Lawful Arrest because the Car was Plainly Hot

Front 28

WARRANT EXCEPTION
Plain view

Back 28

For plain view exception, police must
1. use reasonable means of observation -- a means that does not violate expectation of privacy and is used by private citizens such that the accused should have reasonably anticipate that one might be observed in such a manner.
2. from a legal vantage point and
3. illegal nature of the object is readily apparent

Front 29

WARRANT EXCEPTION
Regulatory search

Back 29

1. indiviualized suspicion not needed for a regulatory searches
2. neutral criteria needed
3. pProbable cause to issue warrants for such inspections is satisfied if reasonable legislative or administrative standards for conducting an inspection.
4. Highly regulated industries, such as automobiles, can be subject to search under a relaxed standard of probable cause.

Front 30

WARRANT EXCEPTION
Arrest

Back 30

A search can be conducted incident to a lawful arrest if it
1. is non-intrusive
2. limited to arrestee's wingspan
3.if arrested in auto, the entire compartment of the vehicle can be searched

Front 31

WARRANT EXCEPTION
Inventory search

Back 31

The police may conduct an inventory search of any impounded property as long as
1. search is conducted according to administrative guidelines and
2. is not up to the officer’s discretion.
A booking search at entry to a jail may lawfully include a strip search.

Front 32

WARRANT EXCEPTION
Exigent circumstances

Back 32

No warrant needed if the delay necessary to obtain a warrant would
1.pose a substantial risk of injury
2. or loss of evidence.
The types of circumstances that could be considered exigent are
1.a violent offense
2.a reasonable belief the suspect is armed
3.a strong belief the suspect is at home and is likely to escape if not arrested immediately

Front 33

WARRANT EXCEPTION
Protective sweep

Back 33

If there are exigent circumstances, ppolice may do a cursory search of the immediate area around them is permitted if the officers have an articulable reason to believe it is necessary for the officers’ safety.

Front 34

WARRANT EXCEPTION
Consent

Back 34

Consent must be
1. willingly given
2. by someone with the legal capacity and
3. authority to give consent

Front 35

WARRANT EXCEPTION
Voluntariness of Consent

Back 35

Whether the consent was voluntary or the product of coercion is judged by the totality of the circumstances. Factors to be considered are:
1. Whether the defendant was in custody
2.Whether the officer had a gun drawn
3. Whether the suspect was advised of his or her rights
4.Whether the suspect was told he/she had a right not to consent
5.Whether the suspect was told a warrant could be obtained

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

Front 36

WARRANT EXCEPTION
Hot pursuit

Back 36

Police may enter
1. any premises
2. if they are in hot pursuit
3. of a felon

Front 37

WARRANT EXCEPTION
Terry stop

Back 37

Under Terry v. Ohio, a police officer may
1. briefly stop and detain someone
2. if the officer has a reasonable suspicion that crime is afoot and the individual is involved.

Front 38

REASONABLE SUSPICION

Back 38

Reasonable suspicion is more than a hunch, but involves at least some articulable fact that the officer can point to as a legitimate reason for his actions.

Front 39

EXCLUSIONARY RULE

Back 39

The exclusionary rule is a judicial remedy that says that evidence obtained in violation of a defendant’s constitutional rights cannot be admitted in the prosecution’s case in chief. However, it can be admitted to impeach the defendant’s credibility.

Front 40

EXCLUSIONARY RULE
Leon good-faith reliance on a warrant

Back 40

The exclusionary rule does not apply, when the police rely in good faith on
1. A judicial opinion later changed by another opinion
2. An ordinance or statute later ruled unconstitutional
3. On a defective search warrant

Front 41

EXCLUSIONARY RULE
Fruit of the poisonous tree doctrine

Back 41

Under the “fruit of the poisonous tree” doctrine, the exclusionary rule covers evidence that is derivative in character as well as evidence that was directly obtained by the illegal search or seizure.

Front 42

RIGHT TO COUNSEL
Sixth Amendment

Back 42

The Sixth Amendment, incorporated to the states by the 14th Amendment, states that “in all criminal prosecutions, the accused shall enjoy the right to have assistance for counsel for his defense.” The right to counsel attaches to all critical stages of a proceeding, including arraignment, preliminary hearing, post-indictment lineup, trial and sentencing hearing.

Front 43

RIGHT TO COUNSEL
Ineffective counsel

Back 43

Under the Sixth Amendment, defendant is entitled to effective and conflict-free represenation. To show ineffective assistance of counsel, defendant must show
1. counsel’s performance was objectively deficient.
2. And that but for the deficient performance, the result of the proceeding would have been different.

Front 44

RIGHT TO COUNSEL
Violations by police

Back 44

Police cannot
1. further interrogate of an accused about the accused crime without legal counsel present after the accused exercises her right to counsel.
2. Elicit incriminating statements or secretly record the statements of the accused when he is outside of custody pending trial after the right to counsel has been exercised.
3. can use the testimony of independent witnesses about any incriminating statements by accused that were not elicited by police action.

Front 45

RIGHT TO COUNSEL
Massiah doctrine

Back 45

Once formal charges have been filed, the deliberate eliciting of incriminating statements made by a defendant without the assistance of counsel violates the Sixth Amendment right to counsel. Once the Sixth Amendment right to counsel has attached, subsequent waiver of this right as to any police-initiated interrogation is not valid. The police also cannot use an agent to do something to elicit a confession that they could nto do themselves.

Front 46

MIRANDA

Back 46

In Miranda v. Arizona, the Supreme Court held that under the Fifth Amendment, no statements made by a defendant to a custodial interrogation are admissible unless the defendant is warned
1.of the right to remain silent
2. that anything the defendant says can and will be used against the defendant in
3. the defendant has a right to an attorney
4. if the defendant cannot afford a lawyer, one will be appointed prior to questioning.

Front 47

MIRANDA
When it applies

Back 47

The Miranda warnings are designed to counteract the coercive nature of a police-dominated environment so they are required if the following conditions are met:
1. a person is in custody,
2. is the focus of the investigation
3. is subject to interrogation.

Front 48

MIRANDA
Custody

Back 48

A person is in custody if a reasonable person would not feel free to leave. Whether one is in custody is decided by the totality of the circumstances, particularly whether it is a police-dominated atmosphere.

Front 49

MIRANDA
Interrogation

Back 49

Interrogation is any words or action by the police that the police should know are reasonably likely to elicit an incriminating response.

Front 50

MIRANDA
Focus

Back 50

The individual must be subjected to particularized suspicion.

Front 51

MIRANDA
Valid waiver

Back 51

The burden is on the prosecution to show by preponderance that the Miranda waiver was
1. knowingly,
2. intelligently and
3. voluntarily made.

Front 52

MIRANDA WAIVER
Knowingly and intelligently made requirement

Back 52

It is knowingly and intelligently made if the defendant is aware of his rights and the consequences of abandoning them.

Front 53

MIRANDA WAIVER
Voluntariness

Back 53

It is voluntarily made if it is the produce of a free, uncoerced choice. The police can use some degree of trickery to obtain the waiver, such as telling the suspect he has already been identified, but deception that goes to the substance of the Miranda rights themselves will invalidate a waiver, such as lying about how long it will take to get an attorney.

Front 54

SIXTH AMENDMENT
Right to confrontation

Back 54

The Sixth Amendment provides that the accused shall have the right to confront the witness against him in all criminal and accustoary proceedings and the right to use compulsory process to obtain witnesses and present a defense.

Front 55

SIXTH AMENDMENT
Right to confrontation in cases with co-conspirators

Back 55

Under the Bruton rule, the statement of a non-testifying co-defendant must be excluded unless it can be redact to exclude references with incriminate the defendant.

Front 56

DOUBLE JEOPARDY

Back 56

Under the Fifth Amendment, the same sovereign cannot try a defendant more than once for the same crime. A separate sovereign can try a defendant for the same crime, and the same sovereign can try a defendent for a different crime, if the crime involves different elements.

Front 57

SIXTH AMENDMENT
Right to a speedy trial

Back 57

The right to a speedy trial begins to run after the defendant is charged with a crime. To show a violation, the defendant must show that he has been prejudiced by the delay.

Front 58

EXCLUSIONARY RULE
Balancing test

Back 58

In applying the exclusionary rule, the court will balance
1. Additionally, the court will balance
1. the deterrent purpose of the rule
2. against the costs of exclusion of the probative evidence in apply the rule. I

Front 59

EXCLUSIONARY RULE
Exceptions

Back 59

The exclusionary rule may not apply if
1. Independent source
2. Intervening act of free will by the defendent
3. Inevitable discovery
4. In-court identification
5. Live witness testimony
6. Leon good faith reliance on a facially valid but defective warrant

Front 60

WARRANT REQUIREMENT
Mnemonic for exceptions

Back 60

THE CLAP
1. Terry stop and frisk
2. Hot pursuit
3. Exigent circumstances/evanescent evidence
4. Consent (by one with apparent authority)
5. Lawful arrest, incident to (wingspan, automobile interior space and containers therein)
6. Automobile exceptions -- (entire auto including trunk if probable cause, also inventory search)
7. Plain view

Front 61

EIGHTH AMENDMENT
Death penalty

Back 61

Under the Eighth Amendment prohibiting cruel and unusual punishments:
1. defendant must have a chance to show mitigating factors
2. only a jury, not a judge, may decide aggravating factors
3. no automatic death penalty category and
4. no death penalty for a felony murder in which the accused did not actually commit the murder

Front 62

RIGHT TO COUNSEL
Line-ups

Back 62

There is a right to coujsnel at lineup only after the criminal process has begun.

Front 63

RIGHT TO A PUBLIC TRIAL

Back 63

The public has a right to a public trial unless there is a substantial likelihood of prejudice to the defendant or a need to limit access to have an orderly proceeding.

Front 64

COERCED CONFESSION

Back 64

If a confession is coerced, even by a private individual, it is inadmissible even for impeachment. But if improperly admitted, it is subject to the harmless error rule.

Front 65

BURDEN OF PROOF
Affirmative defenses

Back 65

The state can place upon the defendant the obligation to prove affirmative defenses by a preponderance of the evidence.

Front 66

INDENTIFICATION
Violation of due process

Back 66

Due process requires fundamental fairness of all identification procedures used at trial, whether pre- or post-indictment. Line-ups, show-ups or photo arrays must not be
1. unnessarily suggestive and
2. conducive to irreparable mistaken identity

Front 67

INDENTIFICATION
Admissibility after unfair pretrial ID or one without counsel present

Back 67

The court can still allow an in-court identification if the identification would be reliable under the totality of the circumstances. The court will consider these factors:
1. opportunity to view the criminal at the scene
2. degree of attention of the witness
3. accuracy of description by the wtiness and
4. time between the crime and confrontation
and, as a counterweight, the corrupting effect of the suggestive procedure

Front 68

COERCED CONFESSION
Nature of coercion

Back 68

Whether a confession is coerced is judged by the totality of the circumstances considering:
1. conduct of the police
2. characteristics of the defendant
3. and time of the statement

Front 69

COERCED CONFESSION
Police trickery

Back 69

Police cannot make false promises of benefits (such as that charges will be dropped) or threats, but other tricks,. such as lying about evidence, are permitted.

Front 70

MIRANDA
Public safety exception

Back 70

A police officer need not recite the Miranda warning in a situation where the public safety is at risk -- the "where's the gun?" exception.

Front 71

RIGHT TO COUNSEL
Self-representation/pro se

Back 71

The accused can waive the right to counsel if his waiver is
1. knowingly
2. and intelligently made and
3. the judge has warned him of the risks of self-representation
The court may appoint standby counsel.

Front 72

DUE PROCESS
Violation by outrageous police conduct

Back 72

A judge can dismiss a case as a matter of law if the government’s conduct was so outrageous it violated the defendant’s due process rights. The court will use a totality of the circumstances analysis and consider whether the police
1. manufactured the crime
2. engaged in outrageous improper conduct
3. had an improper motivation
4. and what methods were used to overcome defendant’s reluctance

Front 73

WARRANT EXCEPTION
Authority to consent

Back 73

Consent can be given
1. owner of the property
2. by someone in joint control of the property
3. but not landlord
If police reasonably believe the person permitting the search has authority, the search is valid even if the person did not have that authority.