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176 Cards in this Set

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