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69 Cards in this Set
- Front
- Back
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Agent Authority
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• Carry firearms
• Serve warrants and subpoenas • Arrest for federal crimes with a warrant • Arrest for federal crimes in agent's presence. • Arrest for federal felonies with probable cause. |
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Legal Test for Interference with 1st Amendment Rights
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1) sufficiently compelling interest.
2) Govmt's interest outweights individual interest. 3) Least restrictive manner possible. |
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Authentication and Identification of Evidence
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• "it is what it is"
• chain of custody |
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Hearsay Exceptions
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• Statements by defendant offered by govmt
• Excited utterances • Public/business records • Prior sworn testimony • Dying declaration • Statements against interest |
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Clergy Privilege
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• Must be actual clergy of an established religion
• As capacity of spiritual advisor • Sought for "spiritual relief from sin", not consultation on other matters. |
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Therapist Privilege
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• Must be a licensed psychotherapist
• Only communications made in course of diagnosis. |
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Exceptions to Marital Privileges
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• Evidence related to crimes jointly committed
• Threats against witness spouse |
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Confidential Marriage Communication Privilege
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• Protects confidential communications during marriage
• Defendant may prevent spouse from testifying • Survives termination of marriage • Does not apply to evidence, only to actual communications made during marriage |
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Adverse Spouse Privilege
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• Protects current spouse from compelled testimony
• Does not survive termination of marriage. • Applies to evidence /and/ communications • Does not require confidentiality |
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Attorney-client Privileges
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• Belongs to client
• Legal advice communication and communication related to that purpose • Must be made in confidence • EXCEPTIONS: - must reveal future criminal activity |
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Government Privilege
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• "qualified privilege"
- court may order disclosure if defendant shows disclosure is necessary and the need outweights the govmt's interest of non-disclosure. • Examples - state secrets - sensitive investigative techniques - deliberative process - informants - investigative files |
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Privileges
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• Privileged info not admissable
• Types - Attorney-client - Marital - Psychotherapist-patient - Clergy-communicant - Governmental privilege No privileges: - Physician-patient - Accountant-client - Parent-child |
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"Best Evidence" Rule
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• Best evidence available must be presented in Court.
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Writing Used to Refresh Witness Memory
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If used while testifying, then must be given to the other side.
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Impeachment of Witnesses
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• Attacking credibility
• Prior convictions - Any felony in past 10 years - Any misdemeanors involving dishonesty in past 10 years. • Prior statements - Doesn't need to be shown to witness prior to testimony. |
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Witness Compentency
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• Must be fit and legally qualified
• Must have "personal knowledge" • EXCEPTION: - "Expert witnesses" |
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Defendant's Prior Criminal History
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• Offered only if it tends to show Defendant committed the crime.
• Ex: same MO, proof of motive |
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Character Evidence
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• generally inadmissable
• Defense must broach, then govmt may present character evidence. |
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Relevant Evidence
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• Any tendency to make the existence of any material fact more or less probable.
• Must be relevant to be admissable. • Relevant and inadmissable - Exclusionary Rule Evidence - Unfair prejudice, confusion of issues, undue delay, waste of time, needless cumulative evidence |
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Circumstantial Evidence
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• Jury must draw inference to answer question at hand
• Snow example |
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Rules of Evidence in Pretrial Phases
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• Rules of evidence do not apply during pretrial phases
- warrants - grand jury testimony - intitial appearances - preliminary hearings • EXCEPTION: - marital privilege |
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Discovery
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• Statutory Requirements
- Statements by Defendant - Defendant's arrest record - Access to physical evidence - Results of scientific tests - List of expert witnesses and testimony - Prior statements of witnesses • Due Process Requirements: - exculpatory evidence |
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Juvenile Arrests
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• Under 18 at time of arrest
• To magistrate "forthwith" - no processing - may question juvenile prior to arrest. |
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Federal Jury
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• 12 members
• Challenges - unlimited for cause - specific # of peremptory challenges. |
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Pretrial Phase
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• Change of venue
• Suppression Motions - exclusionary rule - govmt can appeal to Circuit Ct |
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Arrests Outside District of Crime
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• Intial Appearance in district of arrest
- judge advises on Rule 20 • Preliminary Hearing - establish PC and ID - then ship to district • Rule 20 - subject may stay in district of arrest if: (1) subject waives right to trial in district of crime (2) pleas guilty and accept sentence (3) both USAs agree (4) Indictment or Information filed |
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First Amendment
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• "four freedoms"
• Not absolute, subject to reasonable regulation • Govmt must demonstrate compelling interest to interfere. • Must demonstrate govmt interest outweighs individual interests • Must use least restrict manner possible |
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Application of Deadly Force
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• Only to bring imminent danger of death or serious physical injury to a halt
• Continue application until threat eliminated • Assess whether danger to 3rd parties outweighs the benefit of deadly force |
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Probably Cause is the level of proof for...
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• All arrests
• Use of deadly force • Issuance of arrest or search warrant • Warrantless searches • Issuance of ELSUR |
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FBI Arrest Authority for non-federal crimes
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• No federal authority to arrest of non-federal crimes
• FBI Policy: intervene when a serious crime (felony or violent misdemeanor) has been committed in agent's presence /and/ action necessary to prevent injury, escape, or property damage. |
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Use of Force Threat Assessment
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• SA respond to threat of violence, not actual violence
• SA does not have to wait for actual assault |
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Exclusionary Rule Govmt Defenses
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• Standing - rights of actual subject invoking rule must be violated
• Good Faith Reliance of Warrant - SA reasonably believed warrant was valid • Inevitable discovery - evidence would have been discovered inevitably • Independent Source - same evidence would have been legally obtained from an independent source. |
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Sources of Information Leading to Probable Cause
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• Firsthand
- see, hear, smell, feel • Hearsay - credibility of source (type of source, source's track record, corroboration) - reliability of information (level of detail, how did source get information, corroboration) |
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Definition of Probably Cause
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• A reasonable belief
• that something is probably true • based on all available facts and circumstances and the inferences drawn from them |
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Illinois v Gates
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• Look at "totality of circumstances" when determining Probable Cause
• Practical, commonsense decision |
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Parties to a Federal Crime
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• Principal
- whoever commits, aids, abets, counsels, commands, or induces • Accessory After the Fact - knowing offence committed, helps principal avoid arrest, trial, or punishment. - up to 1/2 of term established for principal |
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5th Amendment
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• Right to grand jury indictment
• Double jeopardy prohibition • No self-incrimination • Due process - govmt must "play fair" |
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Indictment
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• FGJ's charging document
• Conclusive determination of Probable cause • Negates requirement for preliminary hearing • Written statement outlining crucial facts of case • Must be used in a capital case, in a non-capital case a defendant can waive the requirement, for a misdemeanor its the govmt option |
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Federal Criminal Jurisdiction
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• Act outside state jurisdiction
- high seas, airports, federal property • Acts against federal govmt - assaulting SA, theft of govmt property • Acts affecting interstate commerce |
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Deadly Force: Is it Necessary?
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• Necessity based on reasonable belief that subject poses an imminent danger of death or serious physical injury to agent or another person.
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4th Amendment
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• Unreasonable searches and seizures
• No warrants unless probable causes supported by oath • Warrants must particularly describe place to search |
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Defenses based on Govmt Misconduct
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• Entrapment
• Due Process Violation • Exclusionary Rule |
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Negligence if Acting Within SA's Scope of Duty
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• Absolute Immunity
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Federal Misdemeanors vs. Felonies
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• Misdemeanor - punishable 1 year or less
• Felony - punishable for more than 1 year |
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Article II of Constitution
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- Creates executive branch
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14th Amendment
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• No state law can abridge federal rights ("Privileges and Immunities")
• Equal protection under law • States must exercise "due process" |
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Elements of a Crime
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• Physical Act
• Mental State ("knowingly", "with malice") |
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Deadly Force Policy Amendments
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• Not just to stop fleeing suspect
• Not used just to disable moving vehicles • Verbal warnings, if feasable • No warning shots • Agent's trained in other alternative methods for handing resisting subjects |
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Article VI of the Consititution
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• Contains Supremacy Clause
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Arrest Warrant
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• Probable Cause to believe:
- offense was committed - defendant committed offense • Issued by Magistrate if a complaint is filed • Issued by Clerk of Ct. if Indictment filled |
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Arraignment
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• Defendant given copy of formal charge and asked to enter plea
• Held before District Court Judge |
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6th Amendment
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• Speedy trial
• Public trial • Imparital jury • Informed of nature of charge • Confrontation of witnesses • Compusory process • Right to counsel |
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Defenses under Bivens Act
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• I didn't do it
• Qualified immunity: actions were reasonable in that: 1) not clearly known right or law /or/ 2) agent's actions were objectively reasonable |
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Graham v. Connor
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• "reasonableness" of use of force judged from the perspective of a reasonable officer at the scene
• Consider split-second judgements, in tense, uncertain, and rapidly evolving environments. |
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Bivens Action
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• Lawsuit against SA for violating consitutional right or statutory provision
• Plaintiff must allege actions were intentional or grossly negligent • DOJ representation 1) was action within scope of duty? 2) Is it in govmt's best interest to represent agent? |
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Due Process Defense
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• Outrageous govmt conduct violating due process and fundamental fairness
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Federal Grand Jury
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• 18 month term, extendable 6 months
• 23 jurors |
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Rule 6(e)
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• FGJ secrecy
• Binds everyone except witness |
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Search Warrant
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• Court order to search particular place at a particular time
• Good only in district issued • Good for 10 days maximum • Normally executed between 6am and 10pm |
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Nature of Imminent Danger
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PC to believe:
1. Possesses a weapon or attempting to gain access to one. Intent to use it. 2. Armed and running to gain cover. 3. Capable of inflicting death, incapacitation, or serious injury w/o weapon. Intent to use it. 4. Escape from violent confrontation which subject attempted to inflict death or serious injury. |
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Exclusionary Rule Defense
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• Evidence seized in violation of Consitution
• Purpose: to prevent police misconduct • "fruit from poisonous tree" |
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Preliminary Hearing
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• w/i 14 days if in custody, 21 days in not in custody.
• Govmt established PC before Magistrate Judge • Both sides present witnesses and evidence • Rules of evidence do not apply • Only in cases of no indictment/information |
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Initial Appearance
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• Defendant's first court appearance after arrest, normally with Magistrate
• Within "reasonable time", ie 6 hours • 5 Disclosures - nature of charge - right to counsel - right of silence - right to preliminary hearing - conditions of pretrial bond |
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Complaint
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• Agent's charging document
• Written statement of essential facts of offense • Made under oath before Magistrate • Basis of arrest warrant or summons |
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Information
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• USA's charging document
• Available if indictment waived by Defendant • Normally used as part of guilty plea |
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Substantive v. Procedural Law
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• Substantive - defines what acts are criminal
• Procedual - outline rules of court procedures and investigations. |
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Use of Force: Is it Reasonable
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• SA must choose "reasonable option", not "least restrictive option"
• Most "unreasonable" uses occur when there is no longer a threat. |
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FBI Arrest Authority for Federal Crimes
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• With arrest warrant
• Federal crime committed in agent's presence. • Federal felony not in presence if agent has probable cause to believe person committed the offence. |
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Entrapment
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• Govmt intitiated criminal conduct of non predisposed person
1) govmt induced affirmative act 2) non-predisposed person • Non-predisposed person defense brings into play: - previous convictions/arrests - willingness of subject - post-offence conduct |
