Multistate Bar Exam - Criminal Procedure

Front 1

Fruit of the Poisonous Tree

Back 1

Not only must Illegally obtained evidence be excluded at trial, but also all evidence obtained or derived from exploitation of that evidence.

The rule generally applies only at criminal trials (i.e., it does not apply at civil proceedings or parole proceedings); neither does it apply to violations of agency rules or state laws.

Front 2

Exceptions to the Fruit of the Poisonous Tree Rule

Back 2

1. When officers rely in good faith on a facially valid search warrant

2. When the fruit is used for purposes of impeaching the testimony of the defendant at trial

3. The evidence is to be used in any proceeding other than a trial on the merits

Front 3

Probable Cause to Arrest

Back 3

The officer must have knowledge (but not necessarily personal knowledge) of reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law.

Front 4

Investigatory Stop

("Terry Stop")

Back 4

The police may stop a person for investigatory purposes if they have at least reasonable suspicion to investigate based on articulable facts. Such stops should be brief and for no longer than necessary to verify or refute the officer’s suspcion.

Front 5

When may the police stop automobiles for investigatory purposes?

Back 5

1. When the stops are made on a neutral, articulable basis to investigate a problem closely related to the mobility of automobiles; or

2. If the police have a reasonable suspicion that the driver or an occupant violated or was about to violate some law.

Front 6

Freedom from Unreasonable Search and Seizure

Back 6

A person has the right to be free from an unreasonable search by the government in all areas in which the defendant has a reasonable expectation of privacy.

If there is no reasonable expectation of privacy, a defendant cannot complain about the search, no matter how unreasonable it was.

Front 7

Search Incident to a Lawful Arrest

Back 7

The police may conduct a search incident to an arrest whenever they arrest a person, even if the arrest is invalid under state law, as long as the arrest was constitutionally valid (e.g., reasonable and based on probable cause).

Front 8

Exclusionary Rule and Grand Jury Proceedings

Back 8

The exclusionary rule does not apply in grand jury proceedings. Illegally seized evidence is admissible before the grand jury.

Front 9

Inevitable Discovery Doctrine

Back 9

An exception to the exclusionary rule, evidence may be admissible if the police inevitably would have discovered the evidence, whether or not they acted unconstitutionally.

Front 10

School Search

Back 10

A search by public school officials will be reasonable if:

1. it offers a moderate chance of finding evidence of wrongdoing;

2. the measures to carry out the search are reasonably related to the search's objectives;

3. the search is not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

Front 11

The Right to Remain Silent

Back 11

A defendant in custody has no duty to speak at all, and the exercise of this constitutional right cannot be used against a defendant to show probable guilt.

Front 12

Sixth Amendment Right to Counsel

Back 12

The right to counsel attaches as soon as the government has initiated adversary judicial criminal proceedings, and the defendant is thereafter entitled to the presence of counsel at all "critical stages" of the prosecution. This includes hearings, lineups, interrogations, etc.

Front 13

Custody

(for Purposes of Miranda)

Back 13

A person is in custody if a reasonable person under the circumstances would think that he is in custody.

If a person questioned by the police has not been deprived of her freedom of movement in any significant way, she is not in custody and need not be advised of her Miranda rights.

Front 14

Reasonable Expectation of Privacy

Back 14

A person has a reasonable expectation of privacy in their home, place of business, automobile, and personal effects.

There is no a reasonable expectation of privacy in someone else's home, place of business, or automobile. There is no reasonable expectation of privacy in open fields, garbage that has been put out, or in any area held open to the public.

Front 15

Who has a reasonable expectation of privacy in a home?

Back 15

1. The owner or someone who has a right of possession to it;

2. An overnight guest; or

3. Someone who lives there

Front 16

Plain Feel Doctrine

Back 16

Anything of an illegal nature observed (by touch, sight, sound, or scent) during a stop and frisk may be seized.

Front 17

Exceptions to the Warrant Requirement

Back 17

1. Search incident to a lawful arrest

2. Consent

3. Automobile (probable cause still required)

4. The contraband seized was in plain view

5. Stop and Frisk (reasonable suspicion still required)

6. Exigent circumstances / "True Emergency"

Front 18

Burden of Proof for Conviction

Back 18

The state must prove each element of the crime charged beyond a reasonable doubt.

For all defenses (other than "an element of the crime is missing"), the state may require a defendant to establish that defense by a preponderance of the evidence.

Front 19

When does jeopardy attach, for purposes of double jeopardy?

Back 19

In a jury trial, when the jury is sworn.

In a bench trial, when the first witness on the issue of guilt is sworn.

Front 20

Assuming jeopardy has attached, these exceptions will allow the prosecutor to re-try the case:

Back 20

1. If the first trial ended in a hung jury

2. If the defendant is convicted, and on appeal the court orders a new trial

3. "Mistrial for Manifest Necessity" - if the first trial ended in a mistrial that was not the result of prosecutorial misconduct.

Front 21

What is meant by same offense, for purposes of double jeopardy?

Back 21

Two crimes are not the same offense if each one requires proof of a fact that the other does not.

Front 22

Indigent Right to Counsel

Back 22

An indigent defendant has a right to counsel in all felony cases, and in all misdemeanor cases in which a jail sentence is actually imposed (including a suspended sentence).

Front 23

Right to Jury Trial

Back 23

A defendant has a right to a jury trial in all serious criminal cases (where the maximum possible sentence under the statute is six months or greater).

States may use a 6-person jury in criminal cases, but if a state decides to use a 6-person jury, the decision must be unanimous.

Front 24

Competency to Stand Trial

Back 24

If it appears that the defendant might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether the defendant is incompetent. If the defendant is tried and convicted but it later appears that he was incompetent to stand trial, the judge's failure to raise the issue does not constitute a waiver of the competency issue.

Front 25

Plain View Doctrine

Back 25

To make a warrantless seizure, the police

1. must be legitimately on the premises where the item is found;

2. the item must be evidence, contraband, or a fruit or instrumentality of a crime;

3. the item must be in plain view; and

4. it must be immediately apparent (i.e., probable cause) that the item is evidence, contraband, or a fruit or instrumentality of a crime.

Front 26

Is the Fifth Amendment right to counsel offense specific?

Back 26

No. If a defendant invokes his right to counsel, under the Fifth Amendment the police cannot interrogate the defendant about any charge without counsel.

Front 27

Is the Sixth Amendment right to counsel offense specific?

Back 27

Yes. If a defendant invokes his right to counsel under the Sixth Amendment, the defendant can be interrogated regarding a different charge without counsel present.

Front 28

Can the right to counsel be waived?

Back 28

The Fifth and Sixth Amendment rights to counsel may each be waived by a knowing and voluntary waiver. Whether a waiver is knowing and voluntary is judged by a totality of the circumstances.

Front 29

Reinitiating Questioning After Defendant Invokes Right to Remain Silent

Back 29

The police may reinitiate questioning if they scrupulously honor a request to remain silent, as where:

1. the police ceased questioning immediately upon the detainee’s request and did not resume questioning for several hours;

2. the detainee was given a fresh set of Miranda warnings; and

3. the questioning was limited to a crime that was not the subject of the earlier questioning.

Front 30

When is an involuntary confession admissible?

Back 30

Never. A truly involuntary confession (e.g. one obtained through torture) is never admissible for any purpose.

Front 31

When may police reinitiate an interrogation after an unambiguous request for counsel?

Back 31

The prohibition lasts the entire time the detainee is in custody, plus 14 days after the defendant returns to his normal life. After that point, the detainee may be questioned about the same matter upon receiving a fresh set of Miranda warnings.

Front 32

When is the privilege against self-incrimination waived?

Back 32

For a defendant, it is waived when she takes the witness stand, but only to the extent that she is subject to cross examination.

For a witness, it is waived if she discloses incriminating information. She can be compelled to reveal further information as long as the disclosure does not increase her risk of conviction or create a risk of conviction for a different offense.

Front 33

A witness subpoenaed to testify before a grand jury has no right to:

Back 33

1. Counsel in the courtroom

2. Miranda warnings

3. Warnings that she is a potential defendant

Front 34

Ineffective Assistance of Counsel

Back 34

A claimant must show both deficient performance and that the result would have been different but for the deficient performance.

Front 35

Double Jeopardy and Separate Sovereigns

Back 35

Double jeopardy does not apply to trials by separate sovereigns, so a person may be tried for the same conduct by both a state and the federal government.

Front 36

Confrontation Clause

Back 36

Under the Sixth Amendment, the defendant has the right to confront adverse witnesses at trial.

Front 37

Confrontation Clause and Co-Defendants

Back 37

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation generally prohibits the use of that statement because the other defendant cannot compel the confessing co-defendant to take the stand for cross-examination.

Front 38

Immunized Testimony

Back 38

Testimony obtained by promise of immunity is by definition coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of the defendant's testimony at trial. Furthermore, nothing derived from the immunized witness's testimony may be used against him.

Front 39

Invoking the Miranda Right to Counsel

Back 39

If the accused invokes her right to counsel, all questioning must cease until the accused is provided with an attorney or initiates further questioning herself.

Front 40

Executing an Arrest Warrant in a Third Party Home

Back 40

Absent exigent circumstances, the police executing an arrest warrant may not search for the subject of the warrant in the home of a third party without first obtaining a separate search warrant for the home. If the police do execute an arrest warrant at the home of a third party without obtaining a search warrant, the arrest is valid, but evidence of any crime found in the home cannot be used against the owner of the home as fruit of an unlawful search.

Front 41

The Automobile Exception to the Requiremet for a Search Warrant

Back 41

The police may search a vehicle without a search warrant when they have probable cause to believe that the vehicle contains evidence of a crime. The police may search anywehre in the vehicle in which the item for which they have cause to search may be hidden, including packages and containers.

Front 42

The Consent Exception to the Requirement for a Search Warrant

Back 42

Consent must be given by one who appears to have a right to use or occupy the premises and the search cannot go beynd the scope of the consent given. The consent is valid as long as the police reasonably believed that the consenting person had the authority to do so, and the scope of the consent is limited only to the areas to which a reasonable person under the circumstances would believe extends.

Front 43

Search Warrant

Back 43

To be valid, the warrant must describe with reasonable precision the place to be searched and the items to be seized. A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant.

Front 44

Evidence Obtained Under Invalid Search Warrants

Back 44

A finding that a warrant was invalid because it was not supported by probable cause will not entitle the defendant to exclude evidence obtained under the warrant if the police have acted in good faith and reasonable reliance on a facially valid warrant.

Front 45

Defective Search Warrants Unable to be Executed in Good Faith

Back 45

1. The underlying affidavit is so lacking in probable cause that no reasonable police officer would rely on it;

2. The warrant is defective on its face;

3. The affiant lied or misled the magistrate;

4. The magistrate has wholly abandoned his judicial role.

Front 46

Execution of a Warrant

Back 46

A warrant must be executed by the police without unreasonable delay, and they must knock and announce their presence (unless they reasonably believe such notice will endanger them or lead to the destruction of evidence).

Front 47

Sufficiency of a Search Warrant Based on Informant Hearsay

Back 47

The sufficiency of a warrant based on informant hearsay is evaluated under the totality of the circumstances. The informer's reliability and credibility, as well as the basis for her knowledge, are all elements that may illuminate the issue of probable cause, but are not strictly separate requirements.

Front 48

What is the prosecution's burden in a criminal case?

Back 48

Due Process requires the prosecution must prove all elements of the crime charged beyond a reasonable doubt.

The state may not require a defendant to "disprove" an element of a crime.

Front 49

Insanity

Back 49

Insanity is an affirmative defense for which it is constitutional to impose the burden of proof on the defendant. Jurisdictions vary between establishing insanity beyond a reasonable doubt, by clear and convincing evidence, or by a preponderance of the evidence. All are constitutional.

Front 50

Confessions of Co-Defendants

Back 50

Where two people are tried together and one has given a confession implicating the other, the Sixth Amendment prohibits its use at trial because of the inability of the nonconfessing defendant to compel the confessing co-defendant to take the stand for cross-examination at their joint trial.

Front 51

When are confessions of co-defendants admissible?

Back 51

1. All portions of the statement referring to the other defendant can be eliminated;

2. The confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of the confession;

3. The confession of the nontestifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively, in which case the jury must be instructed as to the purpose of the admission.