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65 Cards in this Set

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When does jurisdiction lie over criminals/criminal acts in New York?
1. Jurisdiction over Persons: NY has jurisdiction over all persons within the state and, where NY has jurisdiction over the act and the person is not within its physical territory, jurisdiction over the person is obtainable if defendant is fleeing from justice.

2. Jurisdiction over Act in State: may be convicted if conduct occurred within NY and is sufficient to establish:
(i) an element of the offense;
(ii) an attempt to commit the offense; or
(iii) a conspiracy or criminal solicitation to commit the offense or otherise establish the complicity of at least one of the persons liable therefor.

3. Jurisdiction over Acts Out of State: a person may still be convicted in NY if:
(i) offense committed was a result offense and result occurred in NY;
(ii) statute defining the offense is designed to prevent the occurrence of a particular effect in the state and conduct constituting the offense committed was performed within intent that it would have effect in NY;
(iii) offense committed was a conspiracy to commit a crime within NY and over act in furtherance of the conspiracy occurred within NY
Basic exclusionary rule
Judge-made doctrine that prohibits the introduction of evidence obtained in violation of a defendant's Fourth, Fifth, or Sixth Amendment rights. All such evidence is inadmissible at trial as are "the fruits of the poisonous tree."
Does the exclusionary rule apply to grand jury proceedings?
1. MBE: NO

2. NEW YORK: NY narrows scope of admissible evidence at grand jury proceedings.
a. For Indictment - grand jury may indict when evidence:
(i) establishes all elements of crime
(ii) is legally sufficient to establish that accused committed offense; and
(iii) establishes reasonable cause to believe accused committed crime.
Is the exclusionary rule available in civil proceedings?
To what violations is exclusionary rule applicable?
only violations of federal constitution or statute
Is the exclusionary rule available in parole revocation proceedings?
Is the exclusionary rule available for violations of knock and announce rule?
What constitutes a "good faith" defense to the exclusionary rule?
1. MBE:
(i) police relied, in good faith, on judicial opinion
(ii) police relied, in good faith, on an unconstitutional statute or ordinance
(iii) police relied, in good faith, on a defective search warrant.

2. NEW YORK: does NOT recognize good faith exception for defective search warrants.
How may the government break the chain in a "fruit of the poisonous tree" problem?
1. show independent source of evidence.
2. intervening act of free will by defendant
3. inevitable discovery
4. violations of the knock and announce rule
5. If violation of Miranda, and interrogation leads to nontestimonial fruits, five justices in a no-majority opinion held that suppression not necessary
What is the remedy if exclusionary rule is violated?
1. On Appeal: Use harmless-error test. Conviction should be overturned unless government can show, beyond a reasonable doubt, that the admission of tainted evidence was harmless error.

2. In Habeas Proceeding: petitioner should be released if error had substantial and injurious effect or influence in determining jury's verdict.
Fourth Amendment Requirement for Seizures
governmental seizures of persons, including arrests, are seizures within scope of Fourth Amendment and must be reasonable.
What constitutes a seizure?
A seizure occurs if a reasonable person believes she is not free to leave or to terminate encounter with police.
1. Arrests constitute seizures

NEW YORK: police pursuit will constitute a seizure
What is the most basic requirement police need to make an arrest?
probable cause, meaning arrest must be based on trustworthy facts or knowledge sufficient for a reasonable person to believe the person committed or is committing the crime.
What is required for home arrests?
1. MBE: Although warrant generally not required to make a arrest in a public place, police must generally have a warrant before entering the home.
What does NY require to make an arrest in a public place (outside the home)?
Warrant generally not required.
1. Police officer - may arrest a person where probable cause that felony or misdemeanour has been committed by offender, whether in officer's presence or otherwise.
2. Private person - can make warrantless arrest when:
(i) felony in fact committed by offender; or
(ii) any crime has in fact been committed by offender in presence of private person.
What is the sliding scale of police authority in NY?
From lowest to highest authority:
1. Minimal Intrusion/Request for Info - police can approach and request info, except on "whim or caprice." Individual's right not to respond and even to run does NOT give probable cause for arrest.

2. Common Law Right to Inquire - must have "founded suspicion that criminal activity afoot." Can ask questions, detention must be short of seizure. If individual gives explanations, must be released.
3. Forcible Stop and Detention and Frisk - police have "reasonable suspicion" that individual committed or is committing crime. If police believe in danger, under "plain feel" doctrine can frisk in order to seei f suspect is ARMED. May make warrantless search of anything believed to be a weapon.
4. Police Pursuit - need reasonable suspicion
5. Arrest - need probable cause
What information does NY require on an arrest warrant?
1. date of issuance
2. name of issuing court
3. name or title of offense charged
3. name or sufficient description of defendant to be arrested
4. police officer to whom addressed
5. direction to arrest and bring to court
6. If using informant, veracity or reliability of source or sufficient details suggestive of criminal activity
Stop and Frisk on the MBE
police must have a reasonable suspicion, supported by articulable facts, that person committed or is committing a crime.
Under plain feel doctrine, may frisk if officer has reasonable concern for safety and, during frisk, seize any item officer reasonably believes is a weapon OR contraband.
What are requirements for an automobile stop?
generally, requires at least reasonable suspicion that crime committed. Can, however, use roadblacks if neutral, articulable standard in place and there is a special law enforcement need.
May police order a person out of a car?
yes, in interest of officer safety.
May officer search car for weapons even after person out of car?
Yes, may frisk occupants and search passenger compartments if reasonably believes necessary for safety
What is fourth amendment requirement for evidentiary search and seizure?
Must be reasonable under the Fourth Amendment and requires a warrant, except in 6 circumstances.
What circumstances is search warrant not required when seizing/searching for evidence?
1. search incident to lawful arrest
2. automobile exception
3. plain view
4. consent
5. patdown as part of stop and frisk
6. Hot pursuit, evanescent evidence, and other emergencies
When does a person always have a reasonable expectation of privacy giving rise to fourth Amendment right?
1. If owned or has right to possession of place searched;
2. the placed searched was his home; or
3. was an overnight gues of owner of the place searched
When does a person sometimes have a privacy right giving rise to Fourth Amendment right and standing?
1. if legitimately present at time of search
2. if own the property seized
When is there never standing to challenge Fourth Amendment violation?
1. passenger who does not own car or property in car
2. drug dealer on property of another solely for purpose of cutting drugs
3. things held out to public (things visible or left outside that do not require sense-enhancing technology to see)
What are the requirements for a valid search warrant?
1. showing of probable cause that seizable evidence will be found on person/premises to be searched
2. warrant must describe with reasonable precision the place to be searched and items to be seized.
3. Warrant based on affidavit will be invalid of all three of following apply:
i. a false statement was included by affiant
ii. the affiant intentionally/recklessly made false statement
iii. false statement was material to finding of probable cause

i. warrant must be written, though can be obtained by phone
ii. Must meet Aguilar-Spinellis standard where based on informer affidavit and must show (i)veracity or reliability of source information; and (ii) the basis of the informan'ts knowledge. (or sufficient details suggestive of or deirectly related to the criminal activity informed about)
What is the automobile exception to search warrant requirement?
requires probable cause that automobile contains evidence, but can then search any part of the car, including trunk and luggage inside trunk
What is the search incident to lawful arrest exception?
1. MBE:
(i) arrest must be lawfuol
(ii) search must be contemporaneous in time and place of arrest
search person and wingspan of person (or passenger compartments)

2. NEW YORK DISTINCTION: arrestee provided with broader protection. Officer must suspect that may be armed to search containers in wingspan, and once removed from car, police cannot remove closed containers or bags to look for weapons or other evidence.
What is requirement for plain view exception to search warrant requirement?
presence must be lawful in the first place
what are requirements for consent exception to search warrant requirement?
1. consent must be voluntary and intelligent
2. government officer claiming warrant would negate consent
3. must have authority to consent to the search
What are requirements for emergency exception to search warrant requirement?
In New York:
1. must have reasonable grounds to believe that emergency at hand and immediate need for assistance to protect life/property
2. search cannot be primarily motivated by intent to arrest/seize evidence; and
3. must be reasonable basis, approximating probable cause to associate emergency with area or place to be searched.
Hot Pursuit and Evanescent Evidence exception?
must be extremely hot pursuit.

NEW YORK: no common law right to perform blood or chemical tests without warrant EXCEPT that any person who operates a motor vehicle deemed to have given consent to such a test.
What are requirements for wiretapping and eavesdropping?
ALWAYS requires a warrant.
1. Valid Warrant requires:
a. probable cause
b. suspects to be overheard must be named
c. describes with particularity conversation to be heard
d. limited in time
e. terminated when desired info obtained
f. return made to court

NEW YORK: includes bugging and wiretapping. Both are felonies without warrant. Evidence obtained from eavesdropping by an unauthorized private person is inadmissible except in civil or criminal proceeding against the eavesdropper. (note ok to record own conversations).
In New York, what is time limit for wiretap?
eavesdrop warrant good for 30 days, within 90 days after termination, person whose conversations were seized must be informed.
What considerations taken into account when determining voluntariness of a confession?
MBE: totality of circumstances

NEW YORK: specifically ruled that length of interrogation and custody are factors in determining voluntariness of a confession
What is Miranda right?
for admission or confession to be admissible under 5th Amendment, a person in custody must, prior to interrogation, be informed of Miranda rights.
Are spontaneous statements of a Defendant, given without a Miranda warning, admissible?
Yes, not in violation of Miranda.
Can a D waive his Miranda rights?
yes, but waiver must be knowing, voluntary, and intelligent.
Miranda Right to Counsel
Once D unambiguously and specifically asserts right, ALL questions must cease until counsel has arrived unless waives right. Not offense specific - asking for help with interrogation.

NY affords greater protection. Provides for indelible right to counsel that attaches when D is in custody, the police are engaging in conduct overwhelming to layperson, and defendat requests counsel
What is NY "indelible right to counsel?
1. Attaches in any of following circumstances:
(i) D in custody, police engaging in conduct overwhelming to lay person, and D requests counsel
(ii) at arraignment
(iii) upon filing of an accusatory instrument
(iv) where any significant judicial activity

2. Waiver - may be obtained from a criminal defendant who is actually known to be represented by attny only in presence of that attny

3. NO right to counsel for investigatory lineups PRIOR to formal prosecutorial action EXCEPT where:
(i) police aware D represented by counsel on another charge; AND (ii) D explicitly requests attny.
What is the effect of a Miranda violation?
1. statement can still be used to impeach defendant, but not as evidence of guilt
2. nontestimonial fruits might no need to be suppressed
3. confession and testimonial fruits repressed
Exceptions to Miranda
1. spontaneous statements
2. proper waiver
3. public safety - reasonably prompted by concern for public safety
When must the Miranda right be asserted?
very first time it comes up, otherwise waived in all future proceedings
May a prosecutor comment D's use of 5th Amendment right?
How can privilege against self-incrimination be eliminated?
1. grant of immunity of derivative use immunity
(i) MBE: won't use to convict you, but can prosecute on evidence had prior to immunity
(ii) NY: witness receives transactional immunity

2. no possibility of incrimination (SOL) has run

3. Waiver
In NY, where D has lawyer, is presence of attny required to interrogate after D is released and later arrested on unrelated charges?
NO, then waiver can be made without presence of counsel on prior charges.
What is the 6th Amendment Right to Counsel?
right to attorney at ANY POST-CHARGE lineup or after judicial proceedings have begun (i.e. formal charges filed). Cannot deliberately elicit an incriminating statement from a D outside the presence of counsel after D has been charged UNLESS waived right to counsel.

2. Offense specific - can be questioned on unrelated, uncharged offenses although might violate 5th.

NY: still use indelible right to counsel rule
How may defendant challenge a pre-trial identification?
1. if post charge lineup or showup - have right to counsel here. (NY, may have right even pre-charge if represented by attny on another charge and explicitly request attny, and not provided)

2. Denial of Due Process - unnecessarily suggestive
What is remedy for improper trial ID?
can exclude in-court ID; BUT remedy not automatic. Government can defeat claim by showing adequate independent source for in-court ID.
How Many grand jury members needed to indict in NY?
May a witness who has been granted immunity consult with attorney when testifying before grand jury?
Not in grand jury room, but outside is ok.
Prosecutor's Duty to Disclosue exculpatory information in NY?
Has this duty, and must provide certain infor for D to obtain for inspection and copy. Failure to do so will result in reversal or modification if there is D shows reasonable possibility that nondisclosure materially contributed to result at trial.
What are requirements regarding notice of alibi and intent to present insanity defense?
In New York, D must notify prosecutor within 30 days from a not guilty plea if raising insanity as defense.
Within 20 days of arraignment, prosecutor may serve the D with demand for an alibi defense and D must reply within 8 days.
Can a prosecutor demand physical, mental or scientific reports that D will present at trial?
When is there a constitutional right to a Jury Trial in a criminal case?
If maximum sentence exceeds 6 months. Note that for criminal contempt, if sum of criminal sentences exceeds 6 months right to jury trial
number and unanimity of jurors required by 6th Amendment in criminal case
MBE: 6
NY: Felonies - 12; other crimes 6, with up to 2 alternates. If punishment 6 months or less, no jury.
When are peremptory challenges unconstitutional?
Prosecutor or D may not use to exclude prospective juror members on basis of race. Violates equal protection.
What is standard for ineffective assistance of counsel?
MBE: deficient performance and, but for deficiency, result would have been different

NY: slightly more liberal protection: failed to provide meaningful protection, absence of strategic motive, compromised right to fair trial.
What must Judge do when taking guilty plea?
1. plea must be voluntary and intelligent
2. can address in open court on record.
3. must explain nature of charge
4. maximum authorized sentence and any mandatory minimum
5. right not to plead guilty and that waiver means waiver of trial
Remedy for improper taking is taking it again.
When will a guilty plea be set aside?
USSC generally does not allow collateral attack EXCEPT:
1. involuntary
2. lack of jurisdiction
3. ineffective assistance of counsel
4. failure to keep plea bargain on prosecutor's side
What is required under 8th Amendment to impose Death Penalty?
Cannot be cruel and unusual so:
1. if does not give D chance to present mitigating facts and circumstances is unconstitutional
2. Imposition of DP cannot be automatic
When does Double Jeopardy Attach?
1. If jury trial - when jury sworn in
2. If judge - when first witness sworn in.
What are the four exceptions to Double Jeopardy?
1. jury unable to agree on verdict
2. mistrials for manifest necessity
3. retrial after successful appeal
4. Breach of agreed upon plea by Defendant
When will two crimes not constitute same offense for purposes of double jeopardy?
1. MBE: each must require proof of an initial element that other did not.

2. NY: all crimes arising out of same transaction MUST BE TRIED TOGETHER