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12 Cards in this Set

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Analysis for unreasonable search and seizure under the 4th amendmnet
1. Standing
(a) by governmental agent
(b) reasonable expectation of privacy
(c) search or seizure

2. Valid warrant
(a) neutral & detached magistrate
(b) probable cause
(c) reasonably precise as to place to be searched and items to be seized
(d) affidavit of officer not invalid (falsity, recklessly material)
(e) if defective, good faith reliance?

3. If no warrant, valid warrantless search and seizure?
(a) plain view
- probable cause
- lawfully on premises
(b) consent
- voluntary and intelligent
- apparent authority
(c) automobile stop
- probable cause
- need not be contemporaneous
(d) hot pursuit, evanescent evidence, other emergencies
(e) incident to lawful arrest
(f) stop and frisk
- reasonable and articulable suspicion of criminal activity
- patdown if reasonable belief that armed and dangerous
Confessions analysis in crim pro
Applies when

1. police interrogation
- any words or conduct likely to elicit response

2. in custody
- not free to leave

Admissible when:

1. voluntary statement

2. Miranda given
(a) unless public safety

3. Waiver of both rights
(a) if waiver of rt to remain silent, may requestion after break, new miranda on different subject.

**Confessions that violate miranda can be used to impeach d's trial tstimony.
**Erroneous admission and resluting convition not reversed if only harmless error
Confessions analysis in crim pro
Applies when

1. police interrogation
- any words or conduct likely to elicit response

2. in custody
- not free to leave

Admissible when:

1. voluntary statement

2. Miranda given
(a) unless public safety

3. Waiver of both rights
(a) if waiver of rt to remain silent, may requestion after break, new miranda on different subject.

**Confessions that violate miranda can be used to impeach d's trial tstimony.
**Erroneous admission and resluting convition not reversed if only harmless error
Double jeopardy analyais
Under the 5th Amendment, a person cannot be retried for the same offense by the same sovereign once jeopardy has attached.

1. same offense
(a) lesser or greater crime bars retrial of other
(b) not same if each crime has additional element

2. attaches
(a) when jury sworn in
(b) when first witnes sworn

3. same sovereign
(a) munipalities are part of state sovereign
(b) fed gov and each state are all separate sovereigns

4. exceptions
(a) hung jury
(b) manifest necessity to abort original trial
(c) d terminates trial and not acquittal on merits
(d) succcessful appeal based on wieght
(e) d breaches plea bargain
(f) new evidence arises for greater crime
When does the 5th Amendment privilege against compelled, self-incrimination apply?
1. compelled communications

2. testimonial communicaitons
(a) disclose info or factual assertion

3. poses danger of incrimination

4. waiver if discloses incriminating information in any proceeding, civil or criminal

5. violated when used against him in criminal case

6. not granted adequate immunity from prosecution
Defenses against pre-trial identifications
1. due process attack
(a) unnecessarily subjective and substantial likelihood of misidentification

2. 6th Am. attack
(a) no counsel present at post-charge line up or show-up (in-person)

**even if 1 & 2 violated, witness's in trial identification of d is still admissible if had independent source for in -court id.
Ineffective assistance of counsel on MBE
Effective counsel presumed. Only uneffective if:

1. defective performance
2. but for defective counsel, result of proceeding would have been different
Exclusionary rule analysis
1. Illegally obtained evidence and all fruit of the poisonous tree is inadmissible at trial

2. exceptions

(a) fruit of Miranda violation is admissible

(b) fruit doctrine doesn't apply when
- otained from source independent of original illegality
- intervening act of free will be d
- inevitable discovery

(c) an be used to impeach d's credibility at trial

(d) not overturned if harmless error

(e) good faith of police officer exception

(f) doesn't apply in grand juries, civil proceedings, internal agency proceedings
1. Right to jury trial

2. Right to counsel
1. Serious offenses, meaning when incarceration of more than 6 months is authorized

2.
(a) felonies
(b) misdemeanors where prison time imposed
(c) guilty pleas
Places available for speech analysis
1. public forums (areas historically held open to public, sidewalks parks)

(a) must be content and viewpoint neutral

(b) must serve important gov purpose

(c) must leave open adequate alternative places for communication

(d) to be valid, must be time, place or manner restriction

2. limited public forums (non-public forums that gov opens to speech)

(a) analysis is same as public forums

3. non-public forums

(a) must be viewpoint neutral

(b) legitimate gov interest required

(c) reasonable methods of regulation, including prohibiting speech, is allowed

4. private property

(a) no 1st am rt to use for speech purposes
Strict liability in MA
Although the doctrine of strict liability has not been adopted in MA, case law has widened the scope of warranty law so as to encompass a cause of action congruent with principles expressed in strict liability. Privity requirements have been eliminated and liability has been extended to any person the manufacturer might reasonably have expected to use the goods.
What can litigant in MA state court do to ensure that property available to satisfy judgment?
Attachment (reasonable likelihood that damages more than value of property, inadequate liability insurance)

Ex parte attachment (clear and present danger that will remove, conceal, destroy or damage property)

Trustee process (reasonable likelihood that damages more than value of property, inadequate liability insurance)

Reach and apply (reasonable likelihood that damages more than value of property, inadequate liability insurance)

Preliminary injunction (substantial likelihood of success on merits, substantial threat of irreparable harm, balancing of interests favors it)

TRO (immediate and irreparable harm if not granted)