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176 Cards in this Set
- Front
- Back
What is needed for an arrest?
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Probable Cause
-Fair probability to believe that the person arrested has committed a crime. |
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What are the prosecutions’ incentives for plea bargains?
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-Save time and resources
-Possibility of acquittal during trial -Bargain for evidence against another defendant |
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What are the defendants’ incentives for plea bargains?
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Run the risk of being found guilty in trial
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What standard is needed for criminal cases?
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Proof beyond a reasonable doubt
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What standard is needed for civil cases?
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Preponderance of evidence
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What are the steps of the first stage of the appellate process?
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1. Trial
2. State Appellate process 3. U.S. Supreme Court |
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What issues can a defendant raise in the first stage?
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Any
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What are the steps of the second stage of the appellate process?
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1. Defendant files a writ of habeas corpus in state court
2. State appellate process 3. U.S. Supreme Court |
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What issues can a defendant raise in the second stage?
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Only constitutional
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What are the steps of the third stage of the appellate process?
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1. Defendant files a writ of habeas corpus in federal court
2. Federal appellate process 3. U.S. Supreme Court |
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What issues can a defendant raise in the third stage?
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Only constitutional
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What is retroactivity?
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-Determining which defendant should be able to take advantage of “new rules”
-A new rule cannot be applied retroactively to a criminal case on collateral review unless the rule is beyond the legislature’s power of criminal proscription or its absence would seriously diminish the likelihood of an accurate conviction. |
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What is the purpose of the Fourth Amendment?
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-Personal privacy
-Control over property -Protection of individuals from the state |
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Who is protected by the Fourth Amendment?
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-US citizens are protected wherever they are
-Legal aliens (not when abroad) -Protection for illegal aliens is unclear |
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What is the test for determining if there was a search?
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-Did the person have a reasonable expectation of privacy?
-Government investigative activity that intrudes upon a justifiable expectation of privacy constitutes a search. |
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What is looked to when probable cause is based on an informant’s tip?
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Totality of the circumstances
-Credibility of informant -Basis of informant’s information -Corroboration |
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Is a mistaken arrest a violation of the Fourth Amendment?
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No, as long as the police were reasonable in believing that the person they arrested committed the crime.
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Can police search a home after a suspect has been arrested?
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-There must be an individualized suspicion
-Separate probable cause to search the home |
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What is reasonable particularity?
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The degree of particularity that is reasonable depends on the nature of the place to be searched and on the information that an officer could reasonably obtain about the location before a warrant is issued.
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What is sufficient particularity?
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An arrest warrant must describe the person to be seized with sufficient particularity
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What is required in Knock and Announce?
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Must be a reasonable amount of time under the circumstances (time of day, facility)
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What are the exceptions to the Knock and Announce?
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-Police are in hot pursuit of a suspect
-If knocking would run the risk of the evidence being destroyed -If doing so would endanger the officer or others -If the door is already open |
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What are the requirements for a Magistrate?
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-Has to be neutral
-Doesn’t have to be an attorney, but must be capable of determining probable cause -They do not have to justify why they found probable cause |
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Can a person be arrested in public without a warrant?
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Yes, if there is probable cause to believe the person arrested has committed a felony
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Can a police officer search a car after only giving a citation?
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No
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What are two types of illegal arrest?
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-An arrest without probable cause
-An arrest without a warrant (at someone’s house) |
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When someone is arrested without probable cause are their statements admissible?
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No, unless the state proves it was given in freewill
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Are fruits of an illegal arrest admissible?
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No, except when given by freewill
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What are indications of free will?
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-Time from arrest to the statement
-Manner of the arrest -Intervening circumstances |
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When someone is arrested without a warrant are their statements admissible?
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Yes
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When someone is arrested without a warrant is evidence found admissible?
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No
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Can a person who is arrested illegally be tried?
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Yes
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What is an arraignment?
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A court appearance during which a defendant is charged with a crime and asked to enter a plea of guilty, not guilty, or nolo contendere
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How long does the government have to prove that probable cause existed in a warrantless arrest?
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48 hours
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Can a person who has been arrested be searched without a warrant?
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Yes, any lawful custodial arrest justifies a full search of the arrestee’s person.
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What is “search incident to arrest”?
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Search does not have to come after the arrest, once there is probable cause for an arrest a search may take place
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Can police perform a traffic stop for any reason?
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No, there has to be a lawful basis for a traffic stop.
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When can police use deadly force?
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When the other individual is a threat to the officers or to others
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Can a police officer “stop and frisk” a person without consent or probable cause?
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Yes, if the officer has reasonable suspicion that the person is engaged in criminal activity and may be harmed. (Terry v. Ohio)
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Does someone not cooperating with the police constitute reasonable suspicion?
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No
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What is the one requirement of reasonable suspicion?
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Suspicion must be individualized.
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Is there a time limit for stopping a person?
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No, the issue is whether the police were diligent in their investigation?
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Can police seize someone’s property during a Terry stop?
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Yes
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Can police search for evidence of a crime in a “stop and frisk” situation?
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No
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What can the police search when frisking a person?
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Anything within the immediate/grab area
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When is the immediate area determined?
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At the time of the arrest, not the time of the search
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If the police search a bag that was in the immediate area, are the contents of the bag admissible?
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Yes
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Do police have the right to search a car even if everyone has been called out?
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Yes
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What is the Plain View Doctrine?
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An officer may seize an object he has discovered in plain view if he has lawfully arrived at the place from which he views the object, if the object’s incriminating characters is immediately apparent, and if he has a lawful right of access to the object, but he need not have discovered the object inadvertently.
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Can police search a car without a warrant?
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Yes, Carroll Doctrine: if they have probable cause that there is evidence of criminal activity in the car
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Can police search a closed contained in an automobile without a warrant?
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Yes, if they have probable cause
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If police have probable cause to search a container in an automobile, may they search the entire automobile?
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No
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Can police search a business without a warrant?
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Yes, if that business in a closely related industry and there is substantial governmental interest that requires such inspections, and the authorizing provision limits inspector discretion and provides proper notice to the industry subject to the inspection.
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When has a person been seized?
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When in view of all the circumstances surrounding the incident, reasonable person would have believed that he was not free to leave
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Do police have the right to order anyone out of a car?
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Yes
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What is the Special Needs Doctrine?
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If government wants to proceed without proper warrant or probable cause, it has to show a special need
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Can schools perform suspicionless drug tests of students?
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Yes, as long as the primary purpose must be the protection of the students not to discover criminal activity
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Are road blocks constitutional?
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-No, if it’s primary purpose is indistinguishable from a general interest in crime control
-Yes, if it is set up to obtain information about a specific crime |
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Can police perform inventory searches on cars that have been impounded?
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Yes
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Can police search the content of the car once that car has been impounded?
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Yes
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When is someone subject to a border search?
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Any time they enter or leave the U.S. or one of its’ territories
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Who is subject to a border search?
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Citizens and non-citizens
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What are the requirements for a routine border search?
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None, government does not need any individualized suspicion or a warrant
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What are the requirements for a non-routine border search?
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-Reasonable suspicion
-No warrant requirement |
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What factors are used in assessing whether a border search is non-routine?
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-Strip search
-Physical contact (intimate parts) -Body cavity search -If force is used to effectuate the search -Exposes the suspect to pain or danger -Overall manner -Reasonable expectations of privacy are abrogated -The more intrusive, the more likely it is non-routine |
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Is detainment a routine border search?
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No
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What are the requirements for a consent search?
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Must be voluntary
-State has burden to prove this -Courts look to totality of circumstances to determine if consent was freely given |
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Can a persons’ refusal to let the police search be a basis for reasonable suspicion or probable cause?
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No
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Can police perform a search based on third party consent?
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Yes if the person had the authority to consent
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Is evidence admissible in a search where the third party consent was unauthorized?
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Yes, if the police were reasonable in believing that the individual had the authority to consent
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What are the remedies for Fourth Amendment violations?
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-Sentence reduction for anyone whose rights were violated
-Exclusion of the evidence -Police discipline -Civil action -None |
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What is the procedure for excluding evidence?
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-Defendant files a motion to suppress
-Officers are sequestered |
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If D testifies at the hearing to exclude evidence, is this a waiver of his Fifth Amendment right in regards to trial?
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No
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Can evidence first observed during a warrantless search be admitted?
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-Yes, if a completely independent source would have provided probable cause for a warrant to search the premises where the evidence was found.
-As long as the evidence used for probable cause is separate and independent from the illegally discovered evidence, it is legal. |
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What are the exceptions to the exclusionary rule?
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-Civil proceedings
-Grand jury proceedings -Deportation -Sentencing -Habeas Corpus proceedings (Stage 1) -Impeachments, if the D takes the stand |
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When can a person bring an action to exclude evidence?
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If the evidence was gathered through a violation of the defendant’s reasonable expectation of privacy.
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What privilege is given by the Fifth Amendment?
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Privilege against self incrimination
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Is production of identification incriminating?
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No, except impersonation
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Can the government compel a waiver of the Fifth Amendment?
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No
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What are the two types of immunity?
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1. Use
2. Transactional |
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Under use immunity, can government use what the witness says against the witness later?
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No
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Under use immunity, can government use the information given by a witness to gain evidence against that person?
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No
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Once immunity has been given is a person required to testify?
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Yes
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In a trial, can the government comment on the Ds failure/refusal to testify?
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-No
-This rule does not apply to civil proceedings |
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In a trial, can the jury draw a negative inference because the D did not testify?
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No
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In a sentencing proceeding, can the prosecutors force a D to testify?
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No
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Who has to invoke the Fifth Amendment protection?
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The person
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Does the Fifth Amendment privilege protect an individual whose testimony would incriminate another?
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No
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Is there a Fifth Amendment protection for Corporations?
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No
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Can a person be forced to give blood?
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Yes, not a violation of the privilege against self-incrimination
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Are voluntary prepared documents protected by the Fifth Amendment?
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Typically no
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When can a person refuse to give up a document?
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When the act of producing the document would be incriminating
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What are the three ways a person can object to a confession?
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1. Due Process
2. Miranda 3. Sixth Amendment |
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What is the issue involved when a person objects to a confession based on Due Process?
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Whether or not the confession was involuntary?
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Can a voluntary confession be used to prosecute or impeach that person later?
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No
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What do courts look at to determine if a confession was voluntary
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Totality of the circumstances
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Are police allowed to deceive the suspect?
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Yes
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Can police make a promise to the suspect without any intention of following through?
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Yes, if the promise is general in nature
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Can police physically threaten someone to gain a confession?
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No
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What are the four warnings required by Miranda v. Arizona?
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1. Right to remain silent
2. Right to an attorney 3. Any statement may be used against you 4. Indigentattorney will be appointed |
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When do the Miranda warnings have to be given?
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When the individual is taken into custody and the police want to interrogation
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Do the Miranda warnings have to be given during a Terry stop?
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No
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If a D testifies, can the D be impeached with a Miranda defective confession?
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Yes
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Can silence be used against a D?
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-Post-Miranda: no
-Pre-Miranda: yes |
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Are the fruits of a Miranda violation admissible?
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Yes
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Is there an emergency exception to Miranda?
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Yes
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When the failure to give Miranda warnings was a good faith mistake, is the confession admissible?
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Yes
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When a person voluntarily goes to the police station are they in custody?
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Usually no
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When is there an interrogation?
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-Express questioning
-Functional equivalent |
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Can the police ask booking questions without giving Miranda warnings?
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Yes
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Can an undercover agent elicit a statement from a suspect without giving Miranda warnings?
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Yes
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What are the requirements of a Miranda waiver?
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-Must be knowing and voluntary
-Of the person’s freewill -The person must understand the decision |
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Can police deceive an attorney?
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Yes
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Can police deceive a suspect to get that person to waiver their rights?
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No
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How must the right to silence be invoked?
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Clearly and unambiguously
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Can the police continue questioning after the right to silence has been invoked?
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Yes, after a reasonably amount of time
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How must the right to counsel be invoked?
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Clearly and unambiguously
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Can the police continue questioning after the right to counsel has been invoked?
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No, unless the suspect approaches the police
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When does the Sixth Amendment protection begin?
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When formal proceeding have been brought/initiated against the suspect
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Can the police obtain incriminating statement from an accused after an indictment has been returned without counsel present?
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No (Massiah v. United State)
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What is Deliberate Elicitation?
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The purposeful yet covert drawing forth of an incriminating response (usually not during a formal interrogation) from a suspect whose Sixth Amendment right to counsel attached but who has no waived that right. Deliberate elicitation may occur, for example, when a police officer engages an arrested suspect in conversation on the way to the police station. Deliberate elicitation violates the Sixth Amendment.
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When does a person waive his Sixth Amendment right?
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When he initiates contact with the police
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What are the requirements for a Sixth Amendment waiver?
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Must be knowing and voluntary
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Can the police question suspect about other offenses without counsel present?
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Yes because the Sixth Amendment is offense specific
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What are the methods of identification?
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1. DNA
2. Eye Witness testimony 3. Line-ups 4. Photo arrays 5. Show ups 6. In-court identification |
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Must counsel be present in a line-up?
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Yes
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Must counsel be present in a photo array?
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No
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What is the requirement for an in-court identification?
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Must have an independent source
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Can police deliberately delay formally charging a suspect?
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No
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Can a identification be thrown out for being too suggestive?
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Yes
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Is a witness’s identification automatically thrown out if it is based on suggestion and is unnecessary?
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No, as long as it is reliable based on the totality of the circumstances
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What factors are looked at to determine totality of the circumstances?
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-The opportunity of the witness to view the criminal
-The witness’s degree of attention -The accuracy of his prior description of the criminal. -The level of certainty demonstrated at the confrontation -The time between the crime and the confrontation |
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What two factors are looked at to determine if a person is indigent?
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1. Income
2. Assets |
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What is the issue that is involved when examining a person assets?
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How quickly they can be liquidated
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What is the question that needs to be asked when determining whether a Defendant is entitled to counsel?
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Is there a possibility that the defendant be sentenced to jail time?
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When is counsel automatically appointed?
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When the defendant is being charged with a felony
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In order for an indigent defendant to be appointed counsel, what requirement must be met?
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The proceedings against him must be at a critical stage
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Which of the following are considered a critical stage and which are not? 1. Interrogation, 2. Arraignment, 3. Grand jury proceeding, 4. Preliminary hearing, 5. Shoe-up, photo arrays, 6. Pre-charge lineup, 7. Post-charge lineup, 8. Trial, 9. Sentencing, 10. Appeal, 11. Habeas
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-Interrogation - No
-Arraignment - No -Grand jury proceeding - No -Preliminary hearing - Yes -Show-up, photo arrays - No -Pre-charge lineup - No -Post-charge lineup - Yes -Trial - Yes -Sentencing - Yes -Appeal - Yes -Habeas – No -Unless he is a death row inmate |
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If a person is not entitled to appointed counsel in his trial, but then the situation changes and he becomes indigent, would he be able to have counsel appointed for his appeal?
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Yes
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Are indigent defendants allowed to have an expert appointed?
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Yes, but they must show that the expert’s testimony is crucial to his case
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Are defendants in juvenile proceedings entitled to appointed counsel?
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Yes
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What are the two things that a defendant must show to prove that his counsel was ineffective?
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1. Deficient performance
2. Prejudice |
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What is the standard for counsel’s performance in examining the effectiveness?
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Performance must be reasonable
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How do you determine if counsel’s performance was reasonable?
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Look to the prevailing norms/standard of the profession
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If the attorney’s decision were reasonable, can the performance still be considered deficient?
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No
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What must the defendant show when attempting to prove that he was prejudiced by the ineffective counsel?
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But for the attorney’s deficient performance the outcome of the case would have been different
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What is the result of an attorney’s performance being found to be deficient?
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The holding is reversed and the case is remanded for a new trial
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Can a defendant argue that an attorney he retained was ineffective?
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Yes
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What is an infamous crime?
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One that subjects the person to hard labor or incarceration
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Does a D have a right to be indicted by grand jury for an infamous crime?
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Yes
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Are grand juries required to follow the prosecutor?
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No, they can go in whatever direction they want
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What is the difference between a grand jury and a petit jury?
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-A grand jury serves for an entire term (6 months, 1 year) and are only asked to determine if there is probable cause and issue an indictment
-A petit jury serves for one case and decides that case |
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What is the population requirement for a jury?
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Must be a cross-section of the population
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What gives a better cross-section of the population driver licenses or voter registrations?
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Driver licenses
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What must a defendant prove in order to get a new trial in regard to the jury?
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Discrimination
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Does a witness to a grand jury proceeding have a constitutional right to have an attorney present?
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No
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Can grand juries ask questions of the witness?
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Yes
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Is the prosecution obligated to present exculpatory evidence (evidence that indicates that the defendant is not guilty of the crime)?
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No
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Why are grand jury proceedings kept secret?
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To protect the reputation of those that are witnesses (potential D’s) because the grand jury might not indict
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Is all evidence used at grand jury allowed in trial?
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No
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Why would some evidence that was used in a grand jury not be able to be used in the actual trial?
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-Because the evidence was illegally obtained
-Illegal obtained evidence may be used at grand jury but not in the trial |
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Why are witnesses allowed to disclose what happened in a grand jury proceeding?
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Because they have a 1st amendment right to free speech
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Why are the other people who were involved with the grand jury proceeding, other than the witnesses, not allowed to disclose?
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The other participants in the grand jury room have waived their rights to free speech by agreeing to participate
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Can a grand jury subpoena anything and anyone?
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Yes
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What is the only way to avoid testifying or producing documents?
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By invoking a privilege (e.g., 5th amendment)
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Can the prosecution present hearsay evidence to a grand jury?
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Yes
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Why would prosecution use evidence that can’t be used at trial?
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-They may want the indictment before statute of limitations runs out
-They may think they can get the evidence they need by the time trial comes around |
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Who presides over a preliminary hearing?
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A judge
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Does a defendant have a right to cross-examine witnesses and present evidence at a preliminary hearing? If so, why?
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Yes, because a preliminary hearing is not an ex parte proceeding
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Why would prosecution choose a preliminary hearing over a grand jury?
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-Prosecution has an opportunity to find out more about the defense’s case
-Prosecution has an opportunity to see how their witnesses will perform under cross-examination |
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How does an attorney appeal if they think that their client’s rights have been violated?
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1. Make a timely objection
2. Must prove that there was an error 3. That error was harmful |
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What is the result of not making a timely objection to some issue?
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The issue can’t be raised on appeal
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Why must there be an objection on record?
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-Allows the trial judge right there to decide if there was a mistake and correct it
-Gives appellate court an opportunity to decide whether to proceed |
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What should a defendant do if he wants to present evidence and a judge does not allow it?
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Offer of proof
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What happens in an offer of proof?
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The jury is excused, and the defendant presents the evidence to the judge
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What is the harmless error doctrine?
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If the evidence presented by the defendant does not contribute and case would have come out the same, it is a harmless error and the appeal is not granted.
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