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52 Cards in this Set

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What is the exclusionary rule?
The exclusionary rule is a judge-made docrtine that prohibits introduction of evidence obtained in violation of a D's 4th, 5th, and 6th mendment rights. Under the rule, illegally obtained evidence is inadmissible at trial, and all "fruit of the poinsonous tree"-evidence obtained from exploitation of the illegally obtained evidence must also be excluded.
What are the exceptions to the fruit of the poisonous tree doctrine?
1. Evidence obtained from a source independent of the original illegality.
2. An intervening act of free will by the D.
3. Inevitable discrovery, the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally, and
4. Violations of the knock and announce rule pertaining to the execution of a warrant.
What are the limitations on the exclusionary rule?
1. The rule is inapplicable to Grand Juries, Civil proceedings, internal agency rules, and parole revocation hearings.
2. The exclusionary rule does not apply when police act in good faith based on a. case law. b. a facially valid statute or ordinance, or c. or a computer report containing clerical errors not made by the police. d. The rule does not apply when the police act in good faith reliance on a defective search warrant, unless an exception applies.
What are the exceptions to the "good faith reliance on a defective search warrant" exception of the exclusionary rule?
The exclusionary rule does not apply when police act in good faith reliance on a defective search warrant unless:1. the underlying warrant was so lacking in probable cause that it could not reasonably be relied on. 2.The warrant was defective on its face. 3 The affiant - Police officer/ official lied to or misled the magistrate, or 4 The magistrate has wholly abandoned his judicial role.
When may illegally obtained evidence be used?
1. Some illegally obtained evidence may be used to impeach D's credibility if he takes the stand at trial
2. Fruits derived from statements obtained in violation of miranda may be admissibe despite the exclusionary rule.
What is the harmless error test?
If illegal evidence is admitted, a resulting conviction should be overturned on appeal, unless the gov't can show beyond a reasonable doubt that the error was harmless. The harmless error standard never applies to the denial of the right to counsel at trial; this is never harmless.
What does the fourth amendment do?
The fourth amendment provides that people should be free from unreasonable searches and seizures.

"Search" can be defined as a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy.

Seizure - The exercise of control by the government over a person or a thing
What is required for the government to make an arrest?
1.An arrest must be based on probable cause-ie, trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime, and
2. warrant generally is not required before arresting a person i a public place. However, police generally must have a warrant to effect a non-emergency arrest of a person in his home. Additionally, absent exigentn circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party w/out first obtaining a separate search warrant for the home.
What is the standard for stop and frisk?
If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts, they may detain a person for investigative purposes. If the police also have reasoanble suspicion that the detainee is armed and dangerous, they may frisk the detainee for weapons. The detention must be no longer than necessary to conduct a limited investigation to verify the suspicion. During a patdown, an officer may reach into the suspect's clothing an seize any item that the officer reaosnably believe, based on its "plain feel" is a weapon or contraband, and such items are admissible as evidence.
What is the test for evidentiary searches and seizures?
Evidentiary searches and seizures must be reasonable to be valid under the 4th A. Evidentiary seizures analyzed this way:
1. Does D have a 4th A. Right -- is the seizure by the government concerning place or thing in which D had a reasonable expectation of privacy?
2. Did the gov't have a valid warrant (issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized?
3. If the police did not have a valid warrant, did they make a valid warrantless search and seizure?
When does a person ALWAYS have a legitimate expectation of privacy?
The determination of legitimate expectation of privacy (standing for 4th A right)is made on the totality of the circumstances, but a person has a legitiate expectation of privacy ny time:
1. He owned or had a right to possession of the place searched.
2. The place searched was in fact his home.
3. He was an overnight gues of the owner of the place searched.
What are the exceptions to the warrant requirement?
1. Search incident to lawful arrest (police may search the person, and person's wingspan; passenger compartment of car if in wingspan, including containers therein; may do a "Protective sweep" beyond wingspan to search for accomplices)
2. "Automobile exception?" If the police have PC to believe that a vehicle contains fruits, instrumentailitys, or evidence, they may search any container that might reasonably contain the item for which they had PC to search.
3. Plain view -- if officer is legitimately on premises, may seize discovered evidence/fruits/instrument./contraband that is in plain view, and the office has PC to believe that items are fruits/instr/contraband.
4. Consent- voluntary and intelligent
5.Stop and frisk
6.Hot pursuit + evanescant evidence
What is the rule for wiretapping?
All wiretaps require a warrant. The warrant must contain a showing of probable cause to believe that a specific crim has been or is being committed; the suspected persons whose conversations are to be overheard must be named; and the warrant must describe w/ particularity the conversations that can be overheard, the wiretap must be for a short period of time, provisions must be made for termination of the wiretap, and a return must be made to the court, showing what conversations have been intercepted. The exception to the warrant requirement is that of the "unreliable ear." A speaker assumes the risk that the person to whom he is talking is an informer wired for sound or taping the conversation. A speaker has no 4th A. claim if he makes no attempt to keep a conversation private.
When does the right to counsel attach?
The sixth Amendment is offense specific. Thus, even though a D's 6th A. rights have attached regarding the charge for which he is being held, he may be questioned regarding unrelated, uncharged offenss w/out violating the 6th Amendment right to counsel. However, The defendant's 5th A. right to counsel attaches in custody, prior to interrogation.
When are Miranda warnings required?
Anyone in the custody of the gov't and accused of a crime must be given Miranda warnings prior to interrogation by the police. A person is in "custody" if his freedom of action is denied in a significant way based on the obj. circumstances. "Interrogaton" includes any words or conduct by the police that they know would likely elicit a response from the defendant.
How can a suspect waive his Miranda rights?
Waiver of Miranda rights must be proved by the prosecution to be knowing, voluntary, and intelligent, this must be established by a preponderance of the evidence, and the Court will consider the "totality of the circumstances". No waivers come of silence or shoulder shrugs.
What right(s) does a suspect have at a lineup?
A suspect has a right to the presence of an attorney at any post-charge lineup or showup. An accused does not have a right to counsel at photo identifications or when the police take physical evidence from him (fingerprints, handwriting exemplars)
How may a D attack an indentificaton?
A D can attack an identification as denying due process if the Identification is unnecessarily suggestive and there is substantial likelihood of misidentification (Witness says assailant was white, D the only white guy in lineup)

The remedy for unconstitutional ID's is exclusion of the in-court ID and is rarely granted; Exclusion is achieved at a suppression hearing. Exceptions to exlusion in such circumstances: 1. Independent source for in-court ID 2.
What are the major differences between grand jury proceedings and jury trials?
1. The D (grand jury witness) has no right to have counsel present during his grand jury testimony
2. The grand jury may consider evidence that would be excluded at the criminal trial (illegally obtained/hearsay)
3. The "defendant" must appear if called, although he can refuse to answer specific questions on the grounds they may incriminate him.
What are the general requirements for Bail?
Generally, bail can be set no higher than is necessary to assure the defendant's appearance at trial. Refusal to grant bail or the setting of excessive bail may be appealed immediately.
When does a judge violate due process?
Dues porcess is violated if the judge is shown to have actual malice against the D or to have had a financial interest in having the trial result in a guilty verdict.
When does one have a right to trial by jury?
There is no constitutional right to jury trial for petty offenses, but only for serious offenses (offenses with an authorized term of imprisonment more than 6 months)
What are the requirements for number and unanimity of Jurors?
There is no constitutional right to a jury of 12, but there must be at least 6 jurors to satisfy the right to a jury trial. The S. Ct. has upheld convictions that were less than unanimous, but probably would not approve an 8-4 vote for conviction. Six person juries must be unanimous.
What must a claimant show to prove ineffective assistance of counsel?
1. Deficient performance by counsel, and
2. But for the deficiency, the result of the proceeding would have been differen.
What is the test for use of informers for getting a warrant?
An affidavit based on an informer's tip must meet the "totality of the circumstance' test. Under this test, the affidavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not established. Note that the informer's identity generally need not be revealed.
What is the test for use of informers for getting a warrant?
An affidavit based on an informer's tip must meet the "totality of the circumstance' test. Under this test, the affidavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not established. Note that the informer's identity generally need not be revealed.
what are the three circumstances that cover the "hot pursuit, evanescent evidednce and other emergency" exception to a warrant requirement for search and seizure?
There is no general "emergency" exception. owever, police in hot pursuit of a fleeing felon may make a warrantless search and seizure and mayevenn pursue the suspect into a private dwelling 2. police may seize w/out a warrant evidence likely to disappear before a warrant can be obtained. and 3. contaminated food or drugs, persons injured or threatened w/ injury, and buring fires justify warrantless searches and seizures.
What is included in a D's right to a jury trial?
A right to have the jury selected from a representative cross-section of the community. A showing of under-representation of a distinct and numerically significant group in the venire may show that a D's right to a jury trial has been violated.

*peremptory challenges cannot be used for racial and gender-based discrimination.
When does a search violate Due process?
A search that "shocks the conscience" violates due process. A search within a person (surgery, etc) will be permitted only if society's need for the search outweighs the level of intrusion.
Which of the bill of rights have been held binding on the states under the due process provisions of the 14th amendment?
1. The Fourth Amendment prohibition against unreasonable searches and seizures; the exclusionary rule
2. The fifth amendment privilege against compulsory self-incrimination
3. The fifth Amendment prohibition against double jeopardy
4. The 6th amendment right to a speedy trial
5. The 6th amendment right to a public trial
6. The sixth amendment right to a trial by jury
7. The sixth amendment right to confront witnesses.
8. the sixth amendment right to compulsory process for obtaining witnesses.
9. The sixth amendment right to assistance of counsel in felony cases/misdemeanor cases involving imprisonment
10. The eighth amendment prohibition against cruel and unusual punishment
What constitutes a seizure of the person?
Generally it is obvious when police arrest or seize a person. When it is not readily apparent, the Supreme Court has indicated that a seizure occurs only when a reasonable person would believe that she is not free to leave.
What is an "arrest"?
An arrest occurs when police take a person into custody against her will for purposes of criminal prosecution or interrogation.
What is the effect of an invalid arrest?
An unlawful arrest, by itself, has no impact on a subsequen criminal prosecution. Thus, if the police improperly arrest a person, they may detain him if they have probable cause to do so, and the invalid arrest is not a defense to the offense charge. However, evidence that is the fruit of the illegal arrest may not be used against the defendant at trial because of the exclusionary rule.
Where a police officer's "reasonable suspicion" arises from an informant's tip, what is required?
Where the source of suspicion of criminal activity is an informant's tip, the tip must be accompanied by indicia of reliability sufficient to make the officer's suspicion reasonable.
When has a stop or a seizure by police taken place?
A seizure or stop occurs only if a reasonable person would believe she is not free to leave. If an officer merely approaches a person but does not detain her, no arrest or investigatory detention occurs.
What is required for an "roadblock" automobile stop to be valid?
Stopping an automobile is a seizure for fourth amendment purposes. Thus, generally, police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated. The Court allows police to set up road blocks to stop cars w/out individualized suspicion that the driver has violated some law. to be valid,, the roadblocks must 1. stop cars on the basis of some neutral, articulable standard, and be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.
May a police officer order the occupants of a vehicle out of the vehicle?
If the police officer has lawfully stopped a vehicle, in the interest of officer safety, the officer may order the occupants and passengers to get out. Moreover, if the officer reasonably believes that the detainee is armed and dangerous, she may conduct a frisk of the detainee, and may also search the passenger compartment of the vehicle to look for weapons, even after the driver and other occupants have been ordered out of the vehicle.
May person be detained so that police can obtain a warrant to search the person's home?
If the police have probable cause to believe that a suspect has hidden drugs in his house, they may, for a reasonable time, prohibit him from going into the house unaccompanied so that they can prevent him from destroying the drugs while they obtain a search warrant.
What is required for a station house detention of an individual?
Police officers must have full probable cause for arrest to bring a suspect to the station for questioning or for fingerprinting.
Is use of deadly force by police a "fourth amendment seizure"?
There is a 4th Amendment seizure when a police officer uses deadly force to apprehend a suspect. An officer may not use deadly force unless it is reasonable to do so under the circumstances.
What is required for a valid search warrant?
To be valid, a warrant must:
1. Be issued by a 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 the items to be seized.
What must a defendant show to invalidate a search warrant?
A search warrant issued on the basis of an affidavit that, on its face, is sufficient to establish probable cause will be invalid if the defendant establishes:
1. A false statement was included in the affidavit by the affiant
2. the affiant intentionally or recklessly included that false statement; and
3. the false statement was material to the finding of probable cause.
What is the "knock and announce rule"?
Police officers executing a search warrant must knock and announce their authority and purpose and await admittance for a reasonable time or be refused admittance before using foce to enter the place to be searched, unless the officer has a reasonable suspicion that doing so would be dangerous or futile, or would inhibit the investigation because it would lead to the destruction of evidence.

** The exclusionary rule will not be applied to violations of the knock and announce rule.
What can an officer seize pursuant to execution of a search warrant?
When executing a warrant, the police generally may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
When is no warrant required due to the type of industry involved?
A warrant is not required for the seizure of spoiled or contaminated food.

A warrant i not required for searches of businesses in highly regulated industries, b/c of the urgent public interest and the theory that the business has impliedly consented to warrantless searches by entering into a highly regulated industry, such as liquor, guns, strip mining, and automobile junkyards.
What is the difference between the fifth amendment rigt to counsel and the sixth amendment right to counsel?
The fifth amendment right to counsel under miranda applies whenever there is custodial interrogation; the 6th amendment right to counsel attaches only after formal proceedings have begun. Moreover, whereas invocation of the 5th amendment right prevents all questioning, the sixth amendment is "offense specific".
May statements or confessions obtained in violation of Miranda be used to impeach a defendant's testimony?
A confession or other statement obtained in violation of the defendant's Miranda rights, but otherwise voluntary, may be used to impeach the defendant's testimony if he takes the stand at trial, even though such a confession or statement is inadmissible in the state's case in chief. However, a truly involuntary confession or statement s inadmissible.
What is considered when determining whether a Defendant's right to a speedy trial has been violated?
1. Length of delay
2.Reason for delay
3. Whether the defendant asserted his right.
4. Prejudice to defendant
The remedy for violation of the constitutional right to a speedy trial is dismissal w/ prejudice. The d's right to a speedy trial does not attach until the D has been arrested or charged.
What is the rule for introduction of a co-defendant's confession?
A right of confrontation problem develops wiht the introduction of a co-defendant's confession b/c of the inability of the nonconfessing defendant to compel the confession co-defendant to take the stand for cross-examination at their joint trial.

RULE: If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement, even with instructions to the jurty to consider it only as to the guilt of the confession defendant. Such a statement may be admitted if all portions referring to the other defendant can be eliminated, the confession defendant takes the stand and subjects himself to cross examination, or the confession of the nontestifying co--defendant is being used to rebut the defendant's claim that his confession was obtained coercively.
What is the rule for introducing a prior testimonial statement of an unavailable witness?
Under Crawford v. Washington, prior testimonial evidence may not be admitted unless the declarant is unavailable and the defendant had an opportunity to cross-examine the declarant at the time the statement was made. The Court has not provided a comprehensive definition of the term "testimonial", but the Court held that the term includes testimony from a preliminary hearing, grand jury hearing, former trial, or police interrogation.
What is the burden of proof in a criminal case?
The Due Process Clause requires in all criminal cases that the state prove guilt beyond a reasonable doubt. The prosecution must have the burden of proving the elements of the crime charged.
How does a judge determine that a guilty plea is voluntary and intelligent?
the judge must determine that the plea is voluntary and intelligent. This must be done by addressing the defendant personally in open court on the record. Specifically, the judge must ensure that the defendant knows and understands: 1) the nature of the charge 2) the maximum possible penalty and any mandatory minimum; and 3) that he has a right not to plead guilty and that if he does, he waives the right to trial.