Criminal Procedure Nc Bar Exam

Front 1

What is harmless error?

Back 1

conviction can be upheld if the conviction would have resulted despite the improper evidence. On appeal the government has the the burden of proving beyond a reasonable doubt that the admission was harmless

Front 2

What is the general rule for the fourth amendment?

Back 2

people should be free in their persons from unreasonable searches and seizures

Front 3

What is a seizure?

Back 3

when a reasonable would believe that she is not free to leave (totality of the circumstances)

Front 4

What is an arrest?

Back 4

occurs when a person is taken into custody against her will for purposes of criminal prosecution or interrogation

Front 5

What is the genral rule for an arrest?

Back 5

an arrest must be based on probable cause.

Note: probable cause facts and circumstances sufficient to warrant a reasonable prudent person to believe that the suspet committed a crime.

Front 6

Do the police need a warrant to arrest in a public place?

Back 6

No, police need not obtain a warrant before arresting someone in a publiv place.

Front 7

Do the police need a warrant to arrest someone in their home?

Back 7

Yes, police must have an arrest warratn to effect a nonemergency arrest of a person in his home.

Front 8

In NC, when can a person be arrested witout warrant?

Back 8

probable cause that a person has:

1. committed a felony

2. committed a misdemeanor and will not be apprehended, or will cause damage ro harm to property, himself, or other unless arrested

3. has comitted shoplifting

4. has committed domestic violence

Front 9

Who can issue a warrant?

Back 9

magistrates, clerks, judges and justices based on proable causes

Front 10

What is a terry stop?

Back 10

if an officer has reasonable suspicion he may briefly detain a person for an investigative purpose. If the officer has a reasonable suspicion that a person is armed and dangrous, he may conduct a frisk to ensure the detainee has no weapons.

Front 11

What is the rule for warrantless searches of an automobile?

Back 11

a police officer may make a warrantless search of an automobile if there is probable cause to believe that the automobile contains evidence of a crime and it is likely that the automobile will be unavailable by the time a search warrant is obtained.

Front 12

What does offer need in order to conduct a Terry Stop

Back 12

In justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion ... . And in making that assessment it is imperative that the facts be judged against an objective standard: would the facts available to the officer at the moment of seizure or the search ''warrant a man of reasonable caution in the belief'' that the action taken was appropriate

Front 13

What do the police need to stop an automobile?

Back 13

Therefore, the officer must have, at least, an ''articulable and reasonable suspicion'' that some violation of the law has or will occur before the motorist's car can be stopped

Front 14

What is the rule for sobriety roadblocks?

Back 14

1. Develop a systematic plan in advance that takes into account the likelihood of detecting impaired drivers, traffic conditions, number of vehicles to be stopped, and the convenience of the motoring public.

2. Designates in advance the pattern both for stopping vehicles and for requesting drivers that are stopped to submit to alcohol screening tests. The plan may include contingency provisions for altering either pattern if actual traffic conditions are different from those anticipated, but no individual officer may be given discretion as to which vehicle is stopped or, of the vehicles stopped, which driver is requested to submit to an alcohol screening test.

3. Marks the area in which checks are conducted to advise the public that an authorized impaired driving check is being made.

Front 15

Can a police have a stop for investigating a crime?

Back 15

The United States Supreme Court determined that the establishment of a roadblock by police officers to question drivers about a prior crime which occurred in the area did not violate the Fourth Amendment. 263 Under this Fourth Amendment interpretation, the newly recognized ''information seeking highway checkpoint stop'' is to be narrowly applied and tailored to satisfy important criminal investigative interests

Front 16

Can the police stop someone from entering his or her home, in order to get a warrant?

Back 16

officer may detain a person fro a reasonable time or prohibit him from going into his house while they obtain a warrant (2 hours ok)

Front 17

When does Fourth Amendment apply?

Back 17

must be a reasonable expectation of privacy

Front 18

Who has standing for a Fourth Amendment violation?

Back 18

must be a reasonable expectation of privacy to your own items/house not someone else. A person has a reasonable expectation of privacy and automatic standing anytime:

1. she owned or had a right to possession of the place searched

3. or was an overnight guest

Front 19

When there is not an expectation of privacy?

Back 19

No expectation of privacy for objects held out to public such as:

1. garbage on the curb

2. smell of luggage

3. one's handwriting

4. paint on the outside of the car

5. account records held by bank

6. monitoring a cars movement on public road are in your dirveway.

Front 20

In NC, what is the expectation of privacy of garbage?

Back 20

1. location of the trash

2. the extent to which it was exposed to the public

3. whether it was picked up the collection sevice before being turned over to the police

Front 21

What is the open field doctrine?

Back 21

no reasonable expectation for areas outside the curtiledge

Front 22

What is the rule for plane observation?

Back 22

police may fly over a field to observe with the nake eye things in your ard.

Front 23

What are the requirements for a warrant?

Back 23

1. issued by a neutral and detached magistrate

2. based on probable cause

3. particularly describe the place to be searched and items to be seized.

Front 24

What is the rule for informants in when issuig a warrant?

Back 24

totality of circumstances--probable cause must be sufficient based on the totality of circumstances

Front 25

In NC, when must a warrant be executed?

Back 25

In NC a warrant must be exercised within 48 hours after it is void or it is void

Front 26

What is the knock and announce rule?

Back 26

Officer must knock and announce her authority and purpose and await admittance for a reasonable time before using force to gain entry.

Note: if the officer has a reasonable suspicion that knocking and announcing would be dangerous or futile or that it would hurt the investigation, or that things will be destroyed does not have to knock

Front 27

In NC what is a non-testimonial order?

Back 27

requires suspet to appear for ID procedures

1. order may be issued only by a judge upon request of the DA upon affidavits establishing

(i) probable cause to believe that a crime punishable by more than 1 year imprisonment has been committed

(ii) reasonable grounds to suspect that the named person committd the offense and

(iii) the results will be material aid determining whether the person committed the offense

2. defendatn must be avised of his rights before the procedure and is allowed to have his attorney present

Front 28

What are the exceptions to searches with warrant?

Back 28

1. search incident to an arrest

2. automobile

3. plain view

4. consent

5. stop and frisk

6. hot pursuit

7. administrative inspections

Front 29

What is a search incident to a lawful arrest?

Back 29

police may coduct a search after a lawful arrest

police may search the person and areas into which he may be able to obtain weapons or destroy evidence (wingspan)

police may make a protective sweep of the area beyond the defendant's wingspan if they believe accomplices may be present

Front 30

What is an automobile exception for search without a warrant?

Back 30

if the police officer has probable cause to beleive that a car contains contraband, weapons or other evidence of a crime they may search the car without a warrant, or if the cops have probable cause to believe that the car itself is contraband, it may be seized from a public place.

Front 31

Under the automobile exception where can the officer search?

Back 31

1. cp[s cam search the entire car including the trunk an dall containers that may contain the object in which they are searaching for.

2. if a person placing a container in their car, the cops think the container contains something illegal, the cops can only search the container, unless some time has passed, then they may search the entire ar under the assumption that the person has moved the illegal object somewhere in teh car.

Front 32

What is plain view in NC?

Back 32

police may have a warrantle seziure when they are:

1. are legitimately

2. discover evidence, fruits or instrumentalities of crime or contraband

3. see the evidence in plain view

4. hav probable to believe that the item is evidence

5. inadvertence

Front 33

What is consent to a search?

Back 33

warrantless searches may be conducted if cops have voluntary and intelligent consent to do so

Front 34

In NC, what is needed for consent?

Back 34

1. the person to be searched

2. the registered owner of a car or the person in appparent control of its operation and contents or

3. a person reasonably apparently entiteld to give or withold consent to search

Front 35

What are the methds of obtaining evidence that shock the conscience?

Back 35

1. body searches--must be a reasonable intrusion

(a.) taking a blood sample is a common medical procedure so it only has to be reasonable

(b) but a surgical procedure under a general anesthetic involves signficant risks and is unreasonable

Front 36

What is the Fifth Amendment?

Back 36

The Fifth Amendment gives a person the right against testimonial self-incrimination

Front 37

What is the Sixth Amendment?

Back 37

6th amendment right to counsel--in all criminal prosecutions the defendant has a right to the assitance of counsel.

Note: the state may not solicit incriminating information without fist obtaining a waiver of the defendants.

Front 38

What are the rules regarding Miranda Warnings?

Back 38

Miranda warnings and a valid waiver are prerequisites to the admissibility of any statement made during custodial interrogation

Front 39

What is custody for the fifth amendment?

Back 39

custody is would a reasonable person person think they were not free to leave.

Front 40

What is a waiver?

Back 40

a waiver must be knowingly, voluntarily and intelligently given.

Note: not silene,

Front 41

What is the public safety exception for to Miranda warnings?

Back 41

If the interrogation is reasonable prompted by concern for pbulic safety, responses to the questions may be used in court even though Miranda warnings weren't given.

Front 42

When does the 6th amendment attach?

Back 42

When formal proceedings attach (indictment)

Front 43

What is the rule for pre-trial identification?

Back 43

a suspect has a right to the presence of ana attorney at any post-chage line up

Note: no right to counsel for handwriting or fingerprints

Front 44

What is the rule for a pre-trial hearing in NC?

Back 44

Initial appearance-upon arest person must be taken before a judical official without unecessary delay.

Front 45

What is the rule for prosecutorial discovery in NC?

Back 45

state has a duty to diclose material, exculpatory evidence to the defendant. FAilure to do so violates defendant's due process clause

Front 46

What is the rule for a trial by jury?

Back 46

the right is only for serious offenses imprisonment for more than 6 months

Front 47

What are the rules for a right to trial by jury in NC?

Back 47

NC must be unanimous verdict no matter how many juror

NC in superior court a defendant may not waive his right to a jury trial

Front 48

When does double jepoardy attach?

Back 48

jury trials--attaches at the empanelling aand swearing of the jury

Bench trial--attaches at the empanelling and swearing of the jury

Juvenile proceedings--the commencement of a proceeding no right in Civil Proceedings.

Front 49

What is rule for double jeopardy of the same offense?

Back 49

General Rule--when 2 crimes don't constitute same offense (different elements)

Note: cumulative punishments of 2 or more offenses constituting the same statutory crime does not violate the prohibition of multiple punishments for the same offense fo the double jeopardy.