Mbe Criminal Procedure

Front 1

fourth amendment

Back 1

prohibition against unreasonable search and seizure

Front 2

Fruit of the poisonous tree doctrine

Back 2

All evidence obtained or derived from exploitation of illegaly obtained evidence

Front 3

Exception to the scope of the fruit of the poisonous tree doctrine

Back 3

Does not apply where police illegality is a violation of knock and announce rule
- evidence can be admitted

Front 4

fifth amendment

Back 4

1. privilege against self-incrimination
2. prohibition against double jeopardy

Front 5

sixth amendment

Back 5

1. right to a speedy trial
2. right to a trial by jury
3. right to confront witness
4. right to an attorney

Front 6

eighth amendment

Back 6

prohibition against cruel and unusual punishment

Front 7

Harmless error test

Back 7

- A conviction can be upheld if the conviction would have resulted despite the improper evidence
- govt. must show harmless beyond a reasonable doubt

Front 8

exclusionary rule

Back 8

the product of the illegal search or coerced statement is excluded from criminal prosecution

Front 9

What constitutes a seizure of the person

Back 9

- When a reasonable person would believe that he is not free to leave

- Requires a physical application of force or a submission to threat of force

Front 10

An arrest must be based on

Back 10

Probable cause

Front 11

breaking the chain of the fruit of the poisonous tree doctrine

Back 11

1. independent source for that evidence
2. inevitable discovery
3. intervening act of free will of the defendant

Front 12

Effect of an invalid arrest on subsequent criminal prosecution

Back 12

By itself, no impact; look for fruit of the poisonous tree

Front 13

result of improperly obtained evidence admitted at trial

Back 13

appellate court will apply the harmless error test

conviction will be upheld if the conviction would have resulted despite the improper evidence

Front 14

Source of reasonable suspicion

Back 14

Need not arise from officer's personal knowledge

Front 15

Informant's tip as basis for reasonable suspicion

Back 15

Must be accompanied by indicia of reliability

Front 16

permitted arrests without a warrant

Back 16

1. emergency arrest in a home
2. arrest in a public place

Front 17

Authority to use roadblocks

Back 17

1. Must stop cars on the basis of some neutral, articulable standard (every third car)
AND
2. Be designed to serve purpose closely related to a particular problem related to autos and their mobility

Front 18

terry stop

Back 18

police may briefly detain a person, without probable cause to arrest, if they have

1. reasonable suspicion supported by
2. articulable facts of criminal activity

Front 19

Does the D have a Fourth Amendment right

Back 19

1. Was there govt. conduct
2. Did D have a reasonable expectation of privacy or trespass
3. Did police have a valid warrant
4. No valid warrant - did police make a valid warrantless search/seizure (6 possibilities)

Front 20

automobile stops

Back 20

reasonable suspicion that the law has been violated

Front 21

Dog sniffs at traffic stops

Back 21

Okay so long as does not extend beyond time to issue ticket and conduct ordinary inquiries incident to stop

Front 22

Technologically enhanced search of homes

Back 22

if the technology is not available to the general public then it is unlawful

Front 23

government conduct

Back 23

1. publicly paid police
2. private individual acting at the direction of the police
3. private police deputized with the power to arrest

Front 24

Requirements of a Warrant

Back 24

1. Issued by a Neutral and Detached Magistrate
2. Based on Probable Cause
3. Describes with particularity the place to be searched and items to be seized
4. Limited in duration

Front 25

reasonable expectation of privacy

Back 25

1. if you own the premises searched
2. live on the premises searched
3. overnight guests
4. property seized if you have a reasonable expectation of privacy in the item

Front 26

Use of informers to establish probable cause - sufficiency established by

Back 26

- Totality of the circumstances
- Reliability/credibility NOT a prerequisite

Front 27

Identity of informer

Back 27

May remain anonymous

Front 28

probable cause

Back 28

fair probability that contraband or evidence will be found

Front 29

particularity

Back 29

1. place to be searched
2. the things to be seized

Front 30

"Knock and Announce" Rule

Back 30

15-20 second delay UNLESS it would be dangerous/futile/would inhibit the investigation

Front 31

Exceptions to the warrant requirement

Back 31

1. Search incident to a lawful arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent evidence, and other Emergencies

Front 32

exceptions to the good faith defense for a warrant

Back 32

1. so lacking in probable cause
2. so lacking in particularity
3. police officer lied to or misled the magistrate
4. the magistrate is biased

Front 33

Scope of search of auto incident to lawful arrest

Back 33

Passenger compartment (including containers) but NOT the trunk (must be contemporaneous in time and place)

Front 34

Automobile exception

Back 34

Probable cause it contains contraband or evidence of a crime (same level as needed to get a search warrant)

Front 35

search incident to arrest requirements

Back 35

1. arrest must be lawful
2. the arrest and the search must be contemporaneous in time and place
3. can search the person's wingspan

Front 36

Plain View Doctrine

Back 36

1. Legitimately on the premises
2. Such evidence is in plain view
3. Have probable cause the item is contraband or evidence

Front 37

Consent to false announcement of a warrant

Back 37

Negates the consent - no authority to search

Front 38

when may the police search an automobile incident to arrest (applies to recent occupant)

Back 38

1. the arrestee is unsecured and can still gain access to the car, OR
2. the police reasonably believe the evidence of the offense for which the person was arrested may be found in the car

Front 39

Who may consent to a search

Back 39

1. Any person with an apparent equal right to use or occupy the property
2. must be physically present
3. if conflicting consent, cannot search

Front 40

the automobile exception to warrantless search

Back 40

1. probable cause
2. search the entire car
3. can open any package that could reasonably contain the item they had probable cause to look for

Front 41

Scope of search based on consent

Back 41

Limited to those areas to which a reasonable person under the circumstances would believe it extends

Front 42

Scope of search incident to Stop and Frisk

Back 42

Pat down of outer clothing

Front 43

Scope of search of auto incident to a properly stopped traffic violation

Back 43

- May remove driver from car and
- IF reasonable believe person is dangerous
- May search area limited to those in which a weapon may be placed or hidden

Front 44

Seizure based on Plain Feel

Back 44

Incident to a Terry stop, officer may seize any item he reasonably believes is a weapon or contraband based on its "plain feel"

Front 45

Hot pursuit

Back 45

Officers in hot pursuit of a fleeing felon may make a warrantless search and seizure (even into a dwelling)

Front 46

valid consent

Back 46

voluntary and intelligent

Front 47

Evanescent Evidence Exception

Back 47

police may seize without a warrant evidence likely to disappear before a warrant can be obtained

Front 48

stop and frisk warrantless search

Back 48

can frisk after a terry stop only if there is a reasonable belief that the person is armed and dangerous (almost always met with proper terry stop)

Front 49

inventory searches

Back 49

before incarceration, may search
1. personal belongings
2. arrestee's vehicle

Front 50

public school searches

Back 50

must have reasonable grounds for the search

Front 51

Right to counsel applies to what parts of a criminal prosecution

Back 51

All critical stages - adversarial judicial proceedings

Front 52

reasonable public school search

Back 52

1. moderate chance of finding evidence
2. measures adopted are reasonably related to the objectives of the search
3. search is not excessively intrusive

Front 53

Right to counsel is offense

Back 53

Specific

Front 54

miranda warnings are required when

Back 54

custodial interrogation

Front 55

Waiver of Miranda Rights

Back 55

Must be knowing, voluntary, and intelligent; look at totality of circumstances; will not be presumed from silence

Front 56

what constitutes an interrogation

Back 56

questioning or acts that the police know or should know might have an incriminating response

Front 57

Differentiate between Right to Remain Silent and Right to Counsel

Back 57

- Silent: all questioning related to the particular crime must stop
- Counsel: all questioning must cease (not offense specific)

Front 58

invoking the right to remain silent or to counsel

Back 58

must be unambiguous

Front 59

Involuntary confessions

Back 59

Never admissible for any purpose

Front 60

Public safety exception to Miranda

Back 60

If police interrogation is reasonably prompted by concern for public safety, questions obtained in violation of Miranda may be used in court (scope unclear, probably limited)

Front 61

police may re-initiate questioning after defendant has invoked the right to remain silent when

Back 61

1. defendant is remirandized
2. questions are limited to a crime that was not the subject of the earlier questioning

Front 62

questioning after defendant has requested counsel

Back 62

all questioning must cease until
1. the defendant is given an attorney, or
2. the defendant initiates further questioning

Front 63

violation of due process relating to identification

Back 63

- Unnecessarily suggestive
AND
- Substantial likelihood of misidentification
(a difficult test to meet)

Front 64

Refusal to grant bail or the setting of excessive bail appealable when

Back 64

Immediately

Front 65

remedy for denial of pretrial due process

Back 65

exclude the in-court identification- the witness will not be permitted to identify the person in court

state can rebut by showing an adequate independent opportunity

Front 66

defendant's rights in a grand jury proceeding

Back 66

no right to appear or send a witness

can be based on illegally obtained evidence

Front 67

duty to disclose exculpatory evidence

Back 67

failure to disclose, willful or inadvertently, violates due process and may be grounds for reversal if:

1. evidence is favorable to the defendant and,
2. there is a reasonable probability that the result would have been different

Front 68

Effective assistance of counsel right extends to

Back 68

First right of appeal

Front 69

Circumstances constituting ineffective assistance of counsel

Back 69

1. Deficient performance
AND
2. Result of the proceeding would have been different

Front 70

right to trial by jury

Back 70

when tried for an offense with a maximum sentence is MORE than 6 months

Front 71

Basis for an attack on a guilty plea after sentence (4)

Back 71

1. Plea involuntary
2. Lack of jurisdiction
3. Ineffective assitance of counsel
4. Failure to keep the plea bargain

Front 72

number and unanimity of jurors

Back 72

must be at least 6- must be unanimous

larger juries do not necessarily need to be unanimous

Front 73

Any automatic category for imposition of death penalty is

Back 73

Unconstitutional

Front 74

right to self-representation

Back 74

waiver of counsel must be knowing, intelligent, and defendant is competent to proceed pro se

Front 75

Effect in criminal proceeding of failure to claim privilege against self incrimination in civil matter

Back 75

Privilege waived

Front 76

Scope of protection against self incrimination limited to

Back 76

Testimonial evidence; physical evidence not protected

Front 77

Elimination of the privilege against self-incrimination

Back 77

1. Grant of immunity