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14 Cards in this Set
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- 3rd side (hint)
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CRIMINAL PROCEDURE
Level 1 - (4) |
1. Fourth Amendment (Search and Seizure)
2. Fifth Amendment (3) 3. Sixth Amendment (6) 4. Eighth Amendment (3) |
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CRIMINAL PROCEDURE
Level 2 - Fourth Amendment - (Search & Seizure) |
1. HEADNOTE EVIDENCE TO BE SUPPRESSED
2. DEFINE 4th AMEND. - applicable to states via 14th, protects against unreasonable searches, seizures, and arrests. Warrantless search is per se invalid. 3a. IF SEARCH - REQS. WARRANT (unless exception) ⇛WARRANT - (2) ⇰⇰(1) Valid (P.C.; Particularity; Detached Mag.) ⇰⇰(2) Properly Executed (Knock & Announce + must be within scope) ⇛EXCEPTIONS - (7) ⇰⇰(1) STOP & FRISK - right to detain & question based on articulable, reasonable suspicion that criminal activity is afoot) "Terry Stop" ⇨⇨⇨Standard for stopping - reasonable suspicion ⇨⇨⇨If belief might be armed, then pat down ⇰⇰(2) CONSENT - (4) ⇨⇨⇨Must Be - (3) ↠↠↠↠Voluntary (but police have no obligation to warn) ↠↠↠↠W/in intended scope of consent ↠↠↠↠Untainted by illegal detention/arrest ⇨⇨⇨Consent by one with only apparent authority - (3) ↠↠↠↠Ownership not required ↠↠↠↠Police belief in authority must be objectively reasonable ↠↠↠↠Good faith mistake by police okay ⇨⇨⇨Consent by one with equal rights of voice & control generally valid unless non-consenter present & objects ⇰⇰(3) EXIGENT CIRCUMSTANCES - delay would result in destruction/loss of evidence or danger to life & property ⇰⇰(4) AUTOMOBILE - (2) ⇨⇨⇨If police have PC, can search whole car & trunk + open any packages that can reasonably contain the item. ⇨⇨⇨Inventory Search - lawful if it meets two requirements - (2) ↠↠↠↠Must be part of routine or standard police practices, & ↠↠↠↠Not a pretext - no inventory search for sole purpose of criminal investigation - (but mixed motives okay as long as crim. investigation is not the sole purpose) ⇰⇰(5) SILA - (2) ⇨⇨⇨NON-AUTO - (3) ↠↠↠↠(1) Lawful arrest (requires warrant or P.C. of felony or misd. in presence) + ↠↠↠↠(2) Contemporaneous search + ↠↠↠↠(3) Grabbable area (exception = protective sweep) ⇨⇨⇨AUTO - same as non-auto & (2) ↠↠↠↠(OLD RULE) - anything in car & containers (but NOT trunk) ↠↠↠↠(NEW RULE) - car & containers only if reasonable to believe - (2) ⇶⇶⇶⇶⇶ D might access vehicle at time of search - OR - ⇶⇶⇶⇶⇶ vehicle contains evidence of offense ⇰⇰(6) PLAIN VIEW - (2) ⇨⇨⇨(1) Legitimately on the premises ⇨⇨⇨(2) Evidence obviosly incriminating ⇰⇰(7) SCHOOL CHILD - based on reasonable grounds: school rule/criminal misconduct - warrantless searches OK. 3b. IF ARREST, P.C. ⇛HOME - (2) ⇰⇰(1) Warrant needed ⇰⇰(2) Knock and Announce ⇛PUBLIC - (3) ⇰⇰(1) PC Felony ⇰⇰(2) Misdemeanor in presence ⇰⇰(3) Within 48 hours, judge must establish PC 4. STANDING --> to challenge, must have standing which requires reasonable expectation of privacy in the thing seized or area searched ⇛NO reasonable expectation of privacy in - (7) ⇰⇰(1) Bank records ⇰⇰(2) False confidence ⇰⇰(3) Garbage ⇰⇰(4) Handwriting ⇰⇰(5) Open fields ⇰⇰(6) Voice exemplars ⇰⇰(7) Disclaimer of Ownership 5. EXCLUSIONARY RULE: ⇛FRUITS OF POISONOUS TREE DOCTRINE: Excludes all evidence obtained or derived from illegal police act as tainted ⇛EXCEPTIONS - (3) ⇰⇰(1) DISSIPATION OF TAINT - (evid. would have been obtained thru some other purpose or time) ⇰⇰(2) INDEPENDENT SOURCE RULE ⇰⇰(3) INEVITABLE DISCOVERY RULE - (eg., Christian burial case) ⇛ILLEGALLY OBTAINED EVIDENCE CAN BE USED - (2) ⇰⇰(1) when in good faith reliance on search warrant, - or - ⇰⇰(2) for other purposes - (6) ⇨⇨⇨Grand Jury ⇨⇨⇨Preliminary Hearings ⇨⇨⇨Impeachment ⇨⇨⇨Sentencing ⇨⇨⇨Parole decisions ⇨⇨⇨Immigration proceedings |
1. Headnote Evidence to be Suppressed
2. Define 4th Amend. - applicable to states via 14th, protects against unreasonable searches, seizures, and arrests. Warrantless search is per se invalid. 3a. If Search - Reqs warrant (unless exception) --->Warrant: --->Valid (P.C.; Particularity; Detached Mag.) --->Properly Executed (Knock & Announce + must be within scope) --->Exceptions: ---> Stop & Frisk ---> Consent (waives 4th Amend rights) ---> Exigent Circumstances ---> Automobile ---> SILA - Search Incident to Lawful Arrest ---> Plain View ---> School Child 3b. If arrest, P.C. --->Home: --->Warrant needed --->Knock and Announce --->Public: --->PC Felony --->Misdemeanor in presence --->Within 48 hours, judge must establish PC 4. Standing --> to challenge, must have standing which requires reasonable expectation of privacy in the thing seized or area searched 5. Exclusionary Rule: --->Fruits of Poisonous Tree Doctrine: Excludes all evidence obtained or derived from illegal police act as tainted --->Exceptions: --->Dissipation of Taint --->Independent Source Rule --->Inevitable Discovery Rule |
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CRIMINAL PROCEDURE
Level 2 - Fifth Amendment (3) |
CONFESSIONS - (3)
⇛(1) FIFTH AMEND., applicable to the states via 14th Amend., protects against compelled testimonial self-incrimination (requires govt. action.) ⇛(2) MIRANDA - Protects against custodial interrogation - (6) ⇛(3) OTHER APPROACHES TO EXCLUDE CONFESSIONS - (3) DOUBLE JEOPARDY - (3) SELF-INCRIMINATION - (4) |
1. Confessions - (3)
--->(1) Fifth Amend., applicable to the states via 14th Amend., protects against compelled testimonial self-incrimination (requires govt. action.) --->(2) Miranda - Protects against custodial interrogation - (6) --->(3) Other Approaches to exclude confessions - (3) 2. Double Jeopardy - (3) --->Fifth Amendment, applicable to States via the 14th, protects against double jeopardy. ------>(a) Issues (3) ---------->(i) Same Offense - (2) --------------->(1A) Greater or lesser bars - crimes same if all elements of one are in the other (e.g., larceny & robbery) --------------->(2A) Conspiracy always separate ---------->(ii) When Attaches - (2) --------------->(1A) Jury Trial - swearing in --------------->(2A) Non Jury Trial - swearing in first witness ---------->(iii) Does Not Attach - (5) --------------->(1A) Mistrial --------------->(2A) Hung Trial --------------->(3A) Separate Sovereigns --------------->(4A) Successful Appeal unless grounds for reversal - insufficient evidence --------------->(5A) Breach of Agreed Upon Plea Bargain by Deft. ------>(b) Appeal --> waives the bar against double jeopardy, but if D wins a reversal for insufficiency of evidence, double jeopardy will bar re-prosecution even if state gets more evidence. ------>(c) Collateral Estoppel --> ultimate fact/issue by valid final judgment in earlier criminal trial by same sovereign cannot be re-litigated. 3. Self-Incrimination - (4) ------>(a) Taking the 5th - applies only to testimonial communications ------>(b) Does not apply to - (5) ---------->(i) Blood ---------->(ii) Saliva ---------->(iii) Hair ---------->(iv) Voice ---------->(v) Appearance ------>(c) 5th Amend. may protect a person from complying with a subpeona for the production of personal records because the very act of production may constitute a compulsory admission of incriminating information. ------>(d) 5th Amendment protection is inapplicable where - (3) ---------->(i) Immunity ---------->(ii) Waiver ---------->(iii) No possibility of Incrimination |
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CRIMINAL PROCEDURE
Level 2 - Sixth Amendment (6) |
1. Pre-Trial Identification - (4)
2. Right to Counsel - (4) 3. Right to Confrontation - (2) 4. Pleas - (4) 5. Right to Jury - (3) 6. Speedy Trial - (2) |
1. Pre-Trial Identification - (4)
--->(1) 6th Amendment right to counsel - (2) ------>(a) Post charge line-ups - 6th Amend. right to counsel attaches after formal charges are brought ------>(b) Not photo showings --->(2) Denial of due process - (2) ------>(a) Unnecessarily suggestive, and ------>(b) Substantial likelihood of misidentification --->(3) Remedy - can't use evidence --->(4) Defenses - Independent source for in-court ID, such as ample opportunity to observe at scene of crime 2. Right to Counsel - (4) --->(1) 6th Amend. Rt. - applied to all felonies and any sentences that may result in actual loss of liberty --->(2) Applices at Critical States (only if Dft has rt. to counsel) - (6) ------>(a) Adversarial preliminary hearing ------>(b) Post indictment interrogation (after accusation in writing by grand jury) ------>(c) Post indictment line-up ------>(d) Arraignment / Accused brought into court to plead ------>(e) Plea stage ------>(f) Sentencing --->(3) Waiver - (2) ------>(a) Knowing, Voluntary, & Intelligent ------>(b) Trial judge must determine competency --->(4) Claim of ineffective assistance of counsel - (3) ------>(a) Claimant must - (2) ---------->(i) Point out specific deficiency ---------->(ii) Cannot be - (7) --------------->(1A) Lack of experience --------------->(2A) Lack of time to prep --------------->(3A) Gravity of charges --------------->(4A) Complexity of defense --------------->(5A) Accessibility of witnesses --------------->(6A) Trial tactics --------------->(7A) Rejection of D's request for continuance ------>(b) Standard - (2) ---------->(i) Deficient performance, + ---------->(ii) But for deficiency, result would be different ------>(c) Joint - (3) ---------->(i) To be ineffective, must show conflicting interest adversely affects L's performance ---------->(ii) Not invalid per se ---------->(iii) If L advises trial court of a resulting conflict of interest before trial & court refuses to appoint separate counsel, D entitled to reversal on minimal showing he/she may have been prejudiced. 3. Right to Confrontation - (2) --->(1) If two or more persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement (because D has right to confront adverse witnesses) --->(2) Exception - (2) ------>(a) Eliminate implicating factors (redact the non-confessor's name) ------>(b) Confessor takes the stand (so D gets to confront) 4. Pleas - (4) --->(1) Must be voluntary --->(2) Judge must - (3) ------>(a) Address personally and explain - (4) ---------->(i) Nature of charge ---------->(ii) Maximum sentence possible ---------->(iii) Right to plead not guilty ---------->(iv) Plea waives rights - (3) --------------->(1A) to jury trial --------------->(2A) to confront adverse witnesses --------------->(3A) 5th Amend. right against compelled self-incrimination ------>(b) Ensure voluntariness ------>(c) On the record --->(3) Attacking plea after sentence - (3) ------>(a) Procedural error ------>(b) Ineffective assistance of counsel ------>(c) Failure of prosecutor to keep plea bargain --->(4) Effect: May withdraw plea, plea again, may not be given a harsher sentence (note: former plea inadmissible as evidence) 5. Right to Jury - (3) --->(1) 6th Amend. guarantees right to jury trial --->(2) Elements - (3) ------>(a) Possibility of over 6 months of jail time ------>(b) Jury pool is cross-section of community ------>(c) At least six members --->(3) Right to impartial jury - (2) ------>(a) Juror opposed to death penalty: excluded? - (3) ---------->(i) If opposed to death penalty, and ---------->(ii) Views substantially impair duties, and ---------->(iii) Then can be excluded for cause ------>(b) Mere scruples against death penalty - Not excluded for cause 6. Speedy Trial - (2) --->(1) In all criminal prosecutions, the accused shall enjoy the right to a speedy trial - attaches at time of arrest or formal charge. --->(2) Balancing test - (4) ------>(a) Length of the delay (8 months or longer is "presumptively prejudicial"; 5 months or less is not) ------>(b) reason for delay ------>(c) Dft's responsibility to assert the right (in a timely motion to dismiss) ------>(d) Prejudice to dft. ------>(e) ------>(f) |
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CRIMINAL PROCEDURE
Level 2 - Eighth Amendment (3) |
1. Bail
2. Cruel & Unusual Punishment - (3) 3. Death Penalty |
1. Bail ---> Right to bail hearing, but no right to have bail set. No excessive bail allowed.
2. Cruel & Unusual Punishment - (3) --->(1) Cruel - Intent to cause pain --->(2) Unusual - No other State does it --->(3) Disporportionate Sentence 3. Death Penalty - Death penalty statutes are constitutional if meet all the following - (5) --->(1) Mitigating / Aggravating factors (fed law calls them departure factors) must be admissible and heard by jury --->(2) No automatic death penalty - sentence must be individualized (e.g., law cannot impose automatice death penalty for killing a police officer) --->(3) Procedure for review --->(4) Under 18 at time of crime - no death penalty --->(5) Mental retardation - no death penalty (because cruel and unusual) |
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CRIMINAL PROCEDURE: Sixth Amendment - Confessions
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CONFESSIONS - (3)
(1) FIFTH AMEND., applicable to the states via 14th Amend., protects against compelled testimonial self-incrimination (requires govt. action.) (2) MIRANDA - Protects against custodial interrogation - (6) ⇰CUSTODY - (2) ↠↠(1) Not free to leave & in custody ↠↠(2) Exceptions - (2) ⇨⇨⇨Traffic Violations/Traffic Stop ⇨⇨⇨Public Safety ⇰INTERROGATION - (2) ↠↠(1) Any conduct where police knew, or should have known, they might elicit a damaging statement ↠↠(2) Not spontaneous (must be response to interrogation) ⇰EFFECT - (4) ↠↠(1) Find both, must Miranda - (4) ⇨⇨⇨(i) Silent ⇨⇨⇨(ii) Can be Used ⇨⇨⇨(iii) Atty/Appointed ⇨⇨⇨(iv) Can Terminate ↠↠(2) Need not be perfect ↠↠(3) Suspect asserts - (2) ⇨⇨⇨(i) Rt. to Silence: must leave: can reopen ⇨⇨⇨(ii) Rt. to Atty: cannot reopen unless suspect initiates. ↠↠(4) No Fruits Doctrine ⇰WAIVER - (4) ↠↠(1) Voluntary & ↠↠(2) Knowing & ↠↠(3) Intelligent ↠↠(4) But not simply silence (b/c you have the right to remain silent) ⇰DEFENSE - (4) ↠↠(1) Waiver ↠↠(2) Spontaneous (not interrogation) ↠↠(3) Not custodial - (2) ⇨⇨⇨(i) Traffic Stop ⇨⇨⇨(ii) Public Safety ↠↠(4) Used for Other Purposes ⇰STANDING - Rights are Personal to the Accused (3) OTHER APPROACHES TO EXCLUDE CONFESSIONS - (3) ⇰14TH Amend. Voluntariness (Totality of Circumstances) ⇰6th Amend. Rt. to Counsel (Critical Stage) ⇰Fruits of Illegal Conduct - 4th Amend. |
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CRIMINAL PROCEDURE: Sixth Amendment - Double Jeopardy
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DOUBLE JEOPARDY - (3)
Fifth Amendment, applicable to States via the 14th, protects against double jeopardy. (a) ISSUES (3) ⇰SAME OFFENSE - (2) ↠↠Greater or lesser bars - crimes same if all elements of one are in the other (eg., larceny & robbery) ↠↠Conspiracy always separate ⇰WHEN ATTACHES - (2) ↠↠(1) Jury Trial - swearing in ↠↠(2) Non Jury Trial - swearing in first witness ⇰DOES NOT ATTACH - (5) ↠↠(1) Mistrial ↠↠(2) Hung Jury ↠↠(3) Separate Sovereigns ↠↠(4) Successful Appeal unless grounds for reversal - insufficient evidence ↠↠(5) Breach of Agreed Upon Plea Bargain by Dft. (b) APPEAL - Waives the bar against D.J., but if D wins a reversal for insufficiency of evid., D.J. will bar re-prosecution even if state gets more evid. (c) COLLATERAL ESTOPPEL - Ultimate fact/issue by valid final judgment in earlier criminal trial by same sovereign cannot be re-litigated. |
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CRIMINAL PROCEDURE: Sixth Amendment - Self-Incrimination
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SELF-INCRIMINATION - (4)
(A) TAKING THE 5TH - applies only to testimonial communications (B) DOESN'T APPLY - (5) ⇰(i) Blood ⇰(ii) Saliva ⇰(iii) Hair ⇰(iv) Voice ⇰(v) Appearance * 5th Amend. may protect a person from complying with a subpeona for the production of personal records because the very act of production may constitute a compulsory admission of incriminating information. (C) 5th Amendment protection is inapplicable where - (3) ⇰Immunity ⇰Waiver ⇰No possibility of Incrimination - (e.g., CV trial where already found not guilty in CR trial) |
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CRIMINAL PROCEDURE: Sixth Amendment - Pre-Trial ID
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PRETRIAL IDENTIFICATION - (4)
(1) 6th AMEND. RIGHT TO COUNSEL - (2) ⇛(a) Post charge line-ups - 6th Amend. right to counsel attaches after formal charges are brought ⇛(b) Not photo showings (2) DENIAL OF DUE PROCESS - (2) ⇛(a) Unnecessarily suggestive, and ⇛(b) Substantial likelihood of misidentification (3) REMEDY - can't use evidence (4) DEFENSES - Independent source for in-court ID, such as ample opportunity to observe at scene of crime. |
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CRIMINAL PROCEDURE: Sixth Amendment - Right to Counsel
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RIGHT TO COUNSEL - (4)
(1) 6th AMEND. Rt. - applied to all felonies and any sentences that may result in actual loss of liberty (2) APPLIES AT CRITICAL STAGES (only if Dft has rt. to counsel) - (6) ⇰⇰(a) Adversarial preliminary hearing ⇰⇰(b) Post indictment interrogation (after accusation in writing by grand jury) ⇰⇰(c) Post indictment line-up ⇰⇰(d) Arraignment / Accused brought into court to plead ⇰⇰(e) Plea stage ⇰⇰(f) Sentencing (3) WAIVER - (2) ⇰⇰(a) Knowing, Voluntary, & Intelligent ⇰⇰(b) Trial judge must determine competency (4) CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL - (3) ⇰⇰(a) CLAIMANT MUST - (2) ⇛⇛⇛(i) Point out specific deficiency ⇛⇛⇛(ii) Cannot be - (7) ↠↠↠↠(1A) Lack of experience ↠↠↠↠(2A) Lack of time to prep ↠↠↠↠(3A) Gravity of charges ↠↠↠↠(4A) Complexity of defense ↠↠↠↠(5A) Accessibility of witnesses ↠↠↠↠(6A) Trial tactics ↠↠↠↠(7A) Rejection of D's request for continuance ⇰⇰(b) STANDARD - (2) ⇛⇛⇛(i) Deficient performance, + ⇛⇛⇛(ii) But for deficiency, result would be different ⇰⇰(c) JOINT - (3) ⇛⇛⇛(i) To be ineffective, must show conflicting interest adversely affects L's performance ⇛⇛⇛(ii) Not invalid per se ⇛⇛⇛(iii) If L advises trial court of a resulting conflict of interest before trial & court refuses to appoint separate counsel, D entitled to reversal on minimal showing he/she may have been prejudiced. |
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CRIMINAL PROCEDURE: Sixth Amendment - Right to Confront
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RIGHT TO CONTRONTATION - (2)
(1) If two or more persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement (because D has right to confront adverse witnesses) (2) EXCEPTION - (2) ⇛(a) Eliminate implicating factors (redact the non-confessor's name) ⇛(b) Confessor takes the stand (so D gets to confront) |
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CRIMINAL PROCEDURE: Sixth Amendment - Pleas
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PLEAS - (4)
(1) MUST BE VOLUNTARY (2) JUDGE MUST - (3) ⇛(a) Address personally and explain - (4) ⇰⇰(i) Nature of charge ⇰⇰(ii) Maximum sentence possible ⇰⇰(iii) Right to plead not guilty ⇰⇰(iv) Plt. waives Rts. - (3) ⇛⇛⇛(1A) to jury trial ⇛⇛⇛(2A) to confront adverse witnesses ⇛⇛⇛(3A) 5th Amend. right against compelled self-incrimination ⇛(b) Ensure voluntariness ⇛(c) On the record (3) ATTACKING PLEA AFTER SENTENCE - (3) ⇛(a) Procedural error ⇛(b) Ineffective assistance of counsel ⇛(c) Failure of prosecutor to keep plea bargain (4) EFFECT: May withdraw plea, plea again, may not be given a harsher sentence (note: former plea inadmissible as evidence) |
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CRIMINAL PROCEDURE: Sixth Amendment - Right to Jury
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RIGHT TO JURY - (3)
(1) 6th AMEND. GUARANTEES RIGHT TO JURY TRIAL (2) ELEMENTS - (3) ⇛(a) Possibility of over 6 months of jail time ⇛(b) Jury pool is cross-section of community ⇛(c) At least six members (3) RIGHT TO IMPARTIAL JURY - (2) ⇛(a) Juror opposed to death penalty: excluded? - (3) ⇰⇰(i) If opposed to death penalty, and ⇰⇰(ii) Views substantially impair duties, and ⇰⇰(iii) Then can be excluded for cause ⇛(b) Mere scruples against death penalty - Not excluded for cause |
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CRIMINAL PROCEDURE: Sixth Amendment - Speedy Trial
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SPEEDY TRIAL - (2)
(1) In all criminal prosecutions, the accused shall enjoy the right to a speedy trial - attaches at time of arrest or formal charge. (2) BALANCING TEST - (4) ⇛(a) Length of the delay (8 months or longer is "presumptively prejudicial"; 5 months or less is not) ⇛(b) reason for delay ⇛(c) Dft's responsibility to assert the right (in a timely motion to dismiss) ⇛(d) Prejudice to dft. ⇛(e) ⇛(f) |
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