• Shuffle
    Toggle On
    Toggle Off
  • Alphabetize
    Toggle On
    Toggle Off
  • Front First
    Toggle On
    Toggle Off
  • Both Sides
    Toggle On
    Toggle Off
  • Read
    Toggle On
    Toggle Off
Reading...
Front

Card Range To Study

through

image

Play button

image

Play button

image

Progress

1/148

Click to flip

Use LEFT and RIGHT arrow keys to navigate between flashcards;

Use UP and DOWN arrow keys to flip the card;

H to show hint;

A reads text to speech;

148 Cards in this Set

  • Front
  • Back
What is the Exclusionary Rule?
Doctrine that allows victims of an illegal search or coerced confession to have the product of illegality excluded from the pros case-in-chief

Prohibits introduction of evidence obtained in violation of D's 4th, 5th, and 6th A rights.
What is the scope of the exclusionary rule?
Illegally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded, evidence derived from the original police illegality.
What are the exceptions to the fruit of the poisonous tree doctrine?
1) Independent Source - Evidence obtained from a source independent of the original illegality;

2) Attenuating Doctrine - occurs when D's free will is restored through the passage of time and intervening events, and D confesses

3) Inevitable Discovery
When does the exclusionary rule not apply?
Inapplicable to:
1) Grand Juries,
2) Civil Proceedings,
3) Internal Agency Rules, and
4) Parole Revocation Proceedings
Can excluded evidence be used for impeachment?
YES, now available for impeachment on cross for D's testimony
What is the good faith exception to the exclusionary rule?
If police officer acts in good faith in reliance, then what he gathers is admissible even if there is unconstitutionality
What is the 3-part Good Faith Defense to exclusion?
No exclusion when there is good faith reliance on:
1) Judicial opinion that is later overruled
2) Statutes or ordinances that are later declared unconstitutional
3) Search Warrants that are defective
When can an officer that relies on a defective search warrant NOT claim good faith? (4 ways)
1) When the affidavit supporting the warrant application is egregiously lacking in probable cause (warrant is SO bad that no officer could rely on it)

2) The affidavit is so egregiously lacking in particularity that no reasonable officer could rely on

3) If the officer or DA lied to or misled the magistrate that issued the warrant

4) If the magistrate was biased / abandoned neutrality in issuing the warrant
Does NY follow the Good Faith Doctrine?
NO. NY rejects good faith reliance on defective search warrants!
What is the harmless error test?
If illegal evidence is admitted, a conviction should be overturned unless the gov't can show beyond reasonable doubt that the error was harmless.
Who bears the burden on admissibility of evidence?
The prosecution must establish admissibility by the preponderance of the evidence
What does the 4th A give?
Freedom from unreasonable searches and seizures
Are arrest warrants needed for people in public places?
NO, not needed
Do you need an arrest warrant when going to someone's home?
YES, unless under emergency circumstances
What do the police need to get you to the station?
Probable cause to compel you to come to the station for questioning or for fingerprinting
What constitutes a seizure?
A seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government.
What constitutes an arrest?
The police take a person into custody against his will for purposes of criminal prosecution or interrogation.
What must an arrest be based on?
Probable cause
What other types of seizures are there besides arrest?
1) Investigatory stops
2) Automobile stops
3) Detention to obtain warrant
4) Station house detentions
When may police effect an investigatory detention?
If police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (i.e., not merely a hunch).
What is the Second Step for determining S&S?
Does it fall within certain categories of items that are so public in nature that they carry an expectation of privacy even if S&S is by police?
What are the 8 categories of public items?
Go Away Speedily Or Suffer Plenty Of Pain

G - Garbage
A - Account Records
S - Sound of your voice
O - Odors
S - Style of handwriting
P - Public airspace
O - Open fields, seen in or across
P - Paint scrapings from the outside of your car
What is the Third Step for determining S&S?
Is the individual in a certain class that has a reasonable expectation of privacy?
What is necessary for a valid road block?
The roadblock must:
1) stop cars on the basis of some neutral, articulable standard (e.g., every car); and
2) be designed to serve purposes closely related to a particular problem related to automobiles and their mobility.
May police order occupants out of the vehicle in an automobile stop?
YES, in the interest officer safety he
1) may order them out of the vehicle;
2) frisk them if he believes them to be armed; and
3) search weapons in the passenger compartment.
May the police make pretextual auto stops?
YES, if they reasonably believe the driver violated a traffic law they may stop him even if the real motive is to investigate some other violation.
May police bring suspects to the police station w/o grounds for an arrest?
No, they must have full probable cause.
Is grand jury appearance protected by the 4th A?
NO
Who are members of a protected class? When does a person have standing for a 4th A right respecting the place searched or item seized?
1) Owners of property or had a right to possession of the place searched;
2) Resident of the Premises; The place searched was in fact his home whether or not he owned or had a right to possession of it; or
3) Overnight guest; guest of the owner of the place searched
Does a person have a reasonable expectation of privacy in objects held out to the public?
NO, unless police use a sense enhancing technology not in general public to obtain info from inside a suspect's home.
Do Passengers in cars have standing?
Only if for the possession of weapons or if the item seized is attributable to him
Do you have standing if you were not an overnight guest but using the place solely for business?
NO
What is the Fourth Step for determining S&S?
Did the police have a valid warrant?
What showing must be made to obtain a search warrant?
Probable cause to believe that seizable evidence will be found on the person or premises to be searched.
What makes a valid search warrant? (3 things)
1) Supported by probable cause
2) Particularity
3) Issued by a neutral and detached magistrate
What is probable cause under CL?
A fair probability that contraband or evidence of a crime will be found in the area searched
What is probable cause in NY?
Agelar Spineli Test

1) Application has to demonstrate the voracity or reliability of the source of the information AND
2) the basis of the informant's knowledge
How is a search warrant obtained?
Officers must submit to magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions.
What is Particularity?
Warrants must specify the place to be searched and the items to be seized
What is the totality of the circumstances test?
An affidavit based on an informants tip must be sufficent under the totality of the circumstances.

** an affidavit may be sufficient even though the credibility and reliability of the informer or the basis for his knowledge are not established.
Must an informers identity be revealed?
Not usually
When will a search warrant based on affidavit be invalid?
If D establishes:
1) A false statement was included in the affidavit
2) The false statement was intentionally or recklessly included; and
3) The false statement was material to the finding of probable cause.

** this test is very restrictive.
What happens to evidence obtained in reasonable reliance on a facially valid warrant?
The evidence may be used by prosecution, even if it ultimately turns out that the evidence was not supported by probable cause.
Are searches of a non-suspect's premises permissible?
Yes, as long as there is probable cause to believe that evidence will be found there.
How must warrant be executed?
Only the police (and not private citizens) may execute a warrant, and it must be executed without unreasonable delay.
Must police announce themselves before executing a search warranty?
Police must knock, announce their purpose, and wait a reasonable time for admittance.

**unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation.
If the police violate the knock-and-announce rule, is the evidence obtained excluded?
NO, evidence is still admissible even if the rule is violated.
What may police seize when executing a search warrant?
Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
What persons may be searched when found on the premise where a warrant is being executed?
Only persons named in the warrant, and if people are there at the scene with probable cause to search
What is the last step to determine if S&S?
If there is no warrant, is the search still valid under any exceptions to the warrant requirement?
What are the 8 exceptions to the warrant requirement?
ESCAPIST

E - Exigent Circumstances
S - Search Incident to Arrest
C - Consent
A - Automobile
P - Plain View
I - Inventory
S - Special Needs
T - Terry Stop-n-Frisk
What are exigent circumstances?
Things in hot pursuit or evanescent evidence

** If you come across evidence of other crime in plain view while in hot pursuit, you CAN seize it lawfully
What is the Community Caretaking Doctrine?
Police can enter someone's home to abate a nuisance, in order to respond to a community complaint
What is search incident to arrest?
When you place someone under arrest, you are allowed without a warrant to search the individual in order to:
- protect officers
- preserve evidence
What are the requirements of search incident to arrest?
1) There needs to be a lawful arrest, AND
2) The search needs to be contemporaneous with the time and place of the arrest
What is the geographic scope of the search incident to arrest?
The wingspan, what the D could access quickly
What is the CL rule of searching the wingspan?
You can search anywhere, including closed (but not locked) containers
What is the NY rule of searching the wingspan?
To search containers within the wingspan, you must suspect that the arrestee is armed
What is the CL rule of searching cars?
You can search anywhere within the passenger cabin of the car incident to arrest, including closed containers. BUT, NOT THE TRUNK.

** Bright line rule, does not matter if the arrestee is handcuffed in the police car or that the arrest took place on the outside of the car
What is the NY rule of searching cars?
Once an occupant is outside the car, police cannot search closed containers or bags in the car incident to arrest
What is consent to S&S?
If you are asking someone if you can search, and they agree to let you.
Consent must be:
- Voluntary
- Intelligent
What if two or more people share equal rights to the premises and only one consents?
The non-consenting party trumps, and you cannot search based on consent
What is the scope of searching in automobiles?
The police may search anywhere in the entire car where the contraband or evidence may be found.
What are the 3 requirements for seizure based on plain view?
1) Officer can seize if he has lawful access to the place from which the item is seen

2) Lawful access to the item itself

3) If the criminality of the item is immediately apparent

**NY: Judicial authority is needed for plain view seizure of obscene material
What is inventory for S&S?
1) At the station police may make an inventory search of the arrestee's belongings

2) The police may make an inventory search of an impounded vehicle
Can passenger's belongings be searched w/in the auto exception?
YES
Is knowledge of the right to withhold consent is a prerequisite to establishing a voluntary and intelligent consent?
NO
Who has authority to consent?
Any person with an apparent equal right to use or occupy the property may consent, and any evidence found may be used against other owners/occupants
What are some examples of special needs for S&S?
Random drug testing, locker search, government employee's desks and files for misconduct
What is the CL scope of the stop and frisk exception to search warrants?
1) Generally limited to a patdown of outer clothing, unless the officer has specific info that a weapon is hidden in a particular area.
2) An officer may also order occupants out of a stopped vehicle and frisk them and search the passenger compartment of the vehicle if the officer has a reasonable belief that the occupant is dangerous.
What is the NY scope of the stop and frisk exception to search warrants?
You may only take things that feel like weapons or that you believe are weapons (not contraband)
Does wiretapping or eavesdropping constitute a search under the 4th A?
YES
What is necessary for a wiretap warrant?
It may be issued if
i) there is showing of probable cause,
ii) the suspected persons involved in the conversations to be overheard are named,
iii) the warrant describes with particularity the conversations that can be overheard,
iv) the wiretap is limited to a short period of time,
v) the wiretap is terminated when the desired information has been obtained, and
vi) return is made to the court, showing what conversations have been intercepted.
What does the 14th A require regarding confessions?
Voluntariness, as determined by the totality of the circumstances.
What does the 6th A require with regards to confessions?
Right to counsel in all critical stages after judicial proceedings have begun.
What is the effect of the 6th A right to counsel?
It prohibits the police from deliberately eliciting an incriminating statement from a D outside the presence of counsel after D has been charged unless he has waived his right to counsel.
Can there be a 6th A violation prior to formal proceedings?
NO. But there is a still a 5th A right.
Is the 6th A right "offense specific"?
Yes. he may be questioned regarding unrelated, uncharged offenses without violating the 6th A right to counsel.
How does the 5th amendment right generally protect suspects from self-incrimination?
Through Miranda warnings and right to silence/counsel.
What are the 3 requirements for when you need Miranda warnings?
1) Custody requirement - at the time of the interrogation, a reasonable person would not feel free to leave due to an atmosphere of police domination and coercion

2) Interrogation - any conduct the police knows or should know is likely to elicit an incriminating response

3) Testimonial - when it applies to testimony
What constitutes an interrogation?
Any words or conduct by the police that they should know would likely elicit a response from the defendant.

**Miranda warnings are not required before spontaneous statements are made by a defendant.
Can a suspect waive his Miranda rights?
Yes, but the prosecution must prove that the waiver was knowing, voluntary, and intelligent.
What if a suspect is interrogated by an undercover officer?
Generally, Miranda warnings are necessary only if the D knows that he is being interrogated by a government agent.
Does Miranda apply to exculpatory statements?
YES
Are Miranda requirements applicable to a witness testifying before a grand jury?
No, even if compelled by subpoena.
How can a defendant invoke his 5th amendment right and end an interrogation?
By either requesting to remain silent or requesting a lawyer.
What is the effect of requesting to remain silent?
The police must honor this request but may resume questioning at a later time on an unrelated crime.
What in the effect of unambiguously requesting right to counsel?
all questioning must cease until counsel has been provided, unless the accused then waives his right to counsel. Counsel must be present for all questioning there after.
What is the effect of a Miranda violation?
Generally evidence obtained in violation of the Miranda is inadmissible under the exclusionary rule
What if D confesses before and after the Miranda warnings?
Will be inadmissible if the "question first, warn later" nature of the questioning was intentional.
What is the public safety exception to Miranda?
Interrogation without Miranda warnings are allowed where the interrogation is prompted by concern for public safety.
If you are displaying your physical characteristics, do you need Miranda?
NO
If you are taking a lie detector test, do you need Miranda?
YES
What are the 2 requirements of valid Miranda waiver?
1) Must be knowing and intelligent (by express or implied conduct)

2) Must be voluntary and not the product of police coercion
What is the Special Parent-Child rule of NY?
If police use deception or concealment to keep a parent away from the child that is being interrogated, the waiver may be invalid on that basis
What are the substantive bases to attack a pretrial identification?
1) 6th A right to counsel - A suspect has a right to have an attorney present at any post charge lineup.
2) Due process - that the identification was unnecessarily suggestive and there is a substantial likelihood of misidentification
What is the remedy for pretrial identification errors?
The remedy is exclusion of the in-court identification but that is rarely granted.
What is the NY standard for right to council?
You do have the right to have the attorney present before formal charging at the lineup if they know you have a lawyer AND you ask for the lawyer
Does NY use the grand jury system?
YES
Why are grand jury proceedings so sketchy?
1) They are conducted in secret and D has no access;
2) Witnesses subpoenaed have no right to counsel or miranda warnings;
3) Evidence that would be inadmissible at trial may be used;
4) No right to challenge a subpoena.
What is an indictment?
A charging document to find probable cause to believe that the individual has committed the crime in question
What is the NY special indictment rule?
The indictment must establish all elements of the crime, and it has to provide reasonable cause to believe that the accused committed the crime in question
What is the standard to determine whether the 6th A right to a speedy trial has been violated?
Totality of the circumstances
1) Length of the delay
2) Reason for the delay
3) Whether D asserted his rights
4) Prejudice to the defendant.
When does the right to speedy trial does attach?
Does not attach until D has been arrested or charged.
What is the difference between competency and insanity?
1) Insanity is a defense to crimes based on mental condition that existed at the time the crime was committed.
2) Incompetency to stand trial, is a bar to trail based on D's condition at the time of trial.
When is a D incompetent to stand trial?
If he either
1) lacks rational, as well as factual understanding of the charges and proceedings, or
2) lacks sufficient present ability to consult his lawyer with a reasonable degree of understanding.
What are D's basic trial rights?
1) Right to a fair and public trial
2) Right to trial by jury
3) Right to counsel
4) Right to confront witnesses
5) Right to sufficiency of evidence.
If a person does not invoke his self incrimination right in civil trial, is that privilege deemed waived in a later criminal prosecution?
YES
How may a person invoke his right against self incrimination?
1) In criminal trial, the D has the right not to take the stand.
2) Otherwise, the person must take the stand and invoke the privilege in response to specific questions.
When may a person be force to testify in spite of his prilivege?
1) If he is granted immunity from prosecution
2) If he is given guarantees that his testimony and evidence derived from it won't be used against him.
When is due process violated for lack of right to a fair trial? (4 ways)
1) The judge has actual malice against D or financial interest;
2) Trial is conducted in a manner making it unlikely the jury gave evidence reasonable condsideration;
3) The state compels D to stand trial in prison garb; or
4) The jury exposed to influence favorable to the prosecution.
How many people must be on a jury?
At least 6
What is an unbiased judge?
A judge that has no financial stake in the outcome or no ACTUAL malice towards D
Must a 6-person jury make a unanimous guilty finding?
YES
If you use 12 jurors, must they be unanimous?
NO, but kind of close
What is the cross-sectional requirement to juries?
The jury must represent the community that is putting D on trial
What are peremptory Challenges?
Limited # of Challenges to strike any juror without cause
Can you strike a juror without cause for any reason?
NO, not on race or gender
Who has the burden of proof?
The prosecutor, who must prove each and every element of the charge beyond a reasonable doubt
Who has the burden for an affirmative defense?
D has the burden of persuasion
What is the defendant's right to counsel?
D his right to be represented by counsel at the following stages:
1) custodial police interrogation;
2) post-indictment interrogation whether or not custodial;
3) preliminary hearings to determine probable cause to prosecute;
4) arraignment;
5) post-charge lineups;
6) plea and sentencing;
7) felony trials;
8) misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed;
9) overnight recesses during trial; and
10) appeals as a matter of right.
What is the effect of a violation of the right to counsel?
1) Violation at trial requires reversal
2) Violation at non-trial level is evaluated under the harmless error test
What circumstance will constitute ineffective assitance?
1) Deficient performance by counsel (so bad, you are not acting like a lawyer); and
2) But for the deficiency, the result would have been different

** Must point out specific deficiencies and cannot base the claim on inexperience, lack of time to prepare, or complexity of defenses
What is the effect of taking a guilty plea?
It is a waiver of the 6th A right to a jury trial.
What must the judge advise during the ceremony before a guilty plea can be accepted? (4 things)
1) Judge has to describe the nature of the charge to which the plea is offered;
2) The max possible penalty and of any mandatory min (failure to explain a parole term is not fatal);
3) That D has a right not to plead guilty; and
4) That by pleading guilty D waives his right to a trial.
What is the remedy where the judge fail to properly advise P of a guilty plea?
The plea is withdrawn and a new plea is entered.
When may a plea be set aside after D is sentenced?
1) For involuntariness or problem with the plea-taking ceremony;
2) For lack of jurisdiction to take the plea;
3) For ineffective assistance of counsel; or
4) Failure to keep up the terms of the plea bargain deal by the prosecutor.
Is plea involuntary where P threatens to charge D with a more serious crime if he does not plead guilty?
NO
Does D have a right to counsel during sentencing?
YES
What is cruel and unusual punishment?
A penalty imposed that is so grossly disproportionate to the seriousness of the offense committed

** The state cannot impose this under the 8th A
Can a death sentence be based in any part on prior convictions?
If the death sentence is partly based on D's prior conviction, it must be reversed
What is Double Jeopardy?
Being put twice in jeopardy for the same offense
When does Double Jeopardy attach during a jury trial?
When the jury is sworn in (at the empaneling and swearing of the jury)
When does Double Jeopardy attach during a bench trial?
When the first witness is sworn in
What are the exceptions for double jeopardy?
1) Hung jury
2) Retrial after Successful appeal that wasn't grounded on insufficient evidence
3) D breaches his plea bargain (charges may be reinstated)
4) Mistrial for Manifest Necessity (like when D gets sick in the middle of the trial)
When do 2 crimes equal the same offense?
2 crimes are the same offense unless each crime requires proof of an additional element that the other doesn't

**even thought some of the facts may be necessary to prove both crimes.
What is the NY standard for determining if 2 offenses are the same?
The transactional test;

You have to charge all offenses together that arise out of a single event unless they:
- have substantially different elements, OR
- each contains an element that the other does not, and they vindicate different harms, OR
- one is for criminal possession, and the other use, OR
- for each involved harm to a different victim
After one trial, can D be later tried for a lesser or greater offense?
Generally no. Except that D may be retried for murder if V dies after attachment of jeopardy for battery.
When must you take the 5th A?
In any proceeding where the testimony is under oath, you have to take the 5th A the first time that you are presented with the opportunity or you forever waive the right to assert it
What are 3 ways that the prosecutor can get rid of the 5th A privilege?
1) Immunity
2) Statute of Limitations
3) Waiver
When may police frisk someone in conjunction with an investigatory stop?
If the police also have reasonable suspicion that the detainee is armed and dangerous.
How long may an investigatory stop last?
The detention must be no longer than necessary to conduct a limited investigation to verify the suspicion.
What is the first question to ask when determining if it was a lawful S&S?
Is there government conduct?

**You need government conduct because S&S is rooted in the 4th A
Where can you find government conduct? (3 types)
1) Publicly paid police on or off duty
2) Private citizens acting at the direction of the police
3) Privately paid police only if they are deputized with the power to arrest
Do private security guards constitute government conduct?
NO
Does university police constitute government conduct?
YES
What Amendment is Miranda warning associated with?
5th A, protection against self incrimination
What does the 6th A give?
Right to council