Crim Pro

Front 1

Eight Steps to Search and Seizure Issues

Back 1

- is there govt conduct?
- did the S/S invade an individual's reasonable expectation of privacy?
- was the search authorized by a facially valid warrant?
- does and officer's "good faith" save a defective warrant?
- was the search warrant properly executed?
- is the search valid under any of the 8 exception to the warrant requirement?
- can prosecutors use the evidence gather in an UN-constitutional S/S against the D in court?
- is there any evidence introduced by the prosecution "Fruit of the poisonous tree" and if so, is the evidence admissible?

Front 2

4 AMD Protected Areas (4)

Back 2

- persons
- houses
- papers
- effects

Front 3

Unprotected items (8)

P-A-A-G-V-O-H-O

Back 3

- paint scrapings
- account records at bank
- airspace
- garbage left at curb
- voice
- open fields
- handwriting
- odors

Front 4

Rule for Overnight Guests

Back 4

may always grant search to guest areas

Front 5

Rule for seizing a purse in a car

Back 5

the purse may not be seized ONLY if the passenger has a reasonable expectation of privacy in the item searched and seized

Front 6

Two core components for a valid warrant

Back 6

- probable cause
- particularity

Front 7

4 Exceptions where an officer's "good faith" cannot save a defective search warrant

Back 7

- eggregiously lacking in p/c
- eggregiously lacking in particularity
- district atty was lied to or misled
- magistrate was biased

Front 8

Three exceptions to "knock and announce"

Back 8

- futile
- danger
- inhibit investigation

Front 9

8 Exceptions to warrant requirement

E-S-C-A-P-I-S-T

Back 9

- exigent circumstances
- search incident to arrest
- consent
- automobile
- plain view
- inventory
- special needs
- Terry Stop and Frisk

Front 10

Five Examples of Special Needs Doctrine

Back 10

- random drug testing
- probationer's home
- govt employee's desks and files
- student effects in public school
- non-citizens

Front 11

Terry Stop

Back 11

brief detention or seizure to investigate suspicious conduct

Front 12

Terry Frisk

Back 12

pat down of body and outer clothing for weapons

Front 13

Evidentiary Std for Terry Stop and Frisk

Back 13

reasonable suspicion

Front 14

What can you seize in a Terry Stop (2)

Back 14

- weapons
- obvious contraband (without manipulating)

Front 15

When are you "seized" for 4AMD purposes?

Back 15

based on the totality of the circumstances that a reasonable person would not feel free to leave or to decline an officer's request to answer questions

Front 16

What should be considered to determine seizure (3)

Back 16

- did officer brandish a weapon
- officer's demeanor
- was the individual told he could refuse consent

Front 17

Who is seized suring a traffic stop?

Back 17

driver and all passengers

Front 18

Exclusionary Rule

Back 18

Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated

Front 19

4AMD limits to exclusionary rule (4)

Back 19

- case-in-chief cross examination (used to impeach)
- exempted proceedings (grand jury, civil trial, parole revocation hearings)
- knock and announce violations (failure to comply does not require suppression)
- officer's reasonable mistake

Front 20

How to nullify Fruit of Poisonous Tree

Back 20

show a break in the causal link between original illegality and criminal evidence discovered

Front 21

Three Doctrines which nullify Fruit of the Poisonous Tree by breaking causal connection

Back 21

- independent source
- inevitable discovery
- attenuation (D's free will has been restored by passage of time an intervening events)

Front 22

Four Major Requirements for Wire-tap Warrant

P-P-C-T

Back 22

- prob cause
- persons (named)
- conversations (particularly described)
- time (strictly limited)

Front 23

"Unreliable Ear" Doctrine

Back 23

if you speak to someone who has agreed to wiretap or some other form or electronic monitoring, you have no 4AMD claim, you have assumed the risk that the other party will not keep the conversation private

Front 24

When does ARREST occur?

Back 24

when police take a person into custody against his well

Front 25

De Facto Arrests (2)

Back 25

come to the station for:

- fingerprinting
- questioning

Front 26

What do you need to arrest a person in the home of another?

Back 26

arrest and search warrants

Front 27

"Common Enterprise" theory of a traffic stop

Back 27

where a police officer discovers evidence of a crime that it suggests a common unlawful enterprise between the driver and passenger(s), the officer may arrest any or all of them based on reasonable inference of shared dominion and control over the contraband

Front 28

Three Const Challenges brought to exclude a confession

Back 28

- Due Process (14AMD)
- Right to Counsel (6AMD)
- Miranda Doctrine (5AMD)

Front 29

What is the standard for excluding a confession under the Due Process Clause?

Back 29

involuntariness

Front 30

When does 6AMD right to counsel attach?

Back 30

when D is formally charged

Front 31

Two Core Requirements for Miranda Warnings

Back 31

- custody
- interrogation

Front 32

Two core requirements for Miranda waiver

Back 32

- knowing and intelligent
- voluntary

Front 33

Burden of Proof for Miranda Waiver

Back 33

prosecution bears BoP by a preponderance of evidence

Front 34

Difference between Miranda and 6AMD in terms of treatment

Back 34

- 6AMD all questions must cease unless initiated by suspect
- 5AMD (Miranda) scrupulously honor the earlier request

Front 35

What can statements taken against Miranda be used for?

Back 35

- impeach D on cross but not witnesses

Front 36

Does failure to give Miranda warnings exclude "physical fruits"?

Back 36

no

Front 37

Three types of pre-trial ID's

Back 37

- line ups
- show ups
- photo arrays

Front 38

Is there a 5AMD right to counsel under Miranda for pre-trial ID procedures?

Back 38

no

Front 39

Does a right to counsel exist under the 6AMD at line-ups and show-ups taking place after formal charging?

Back 39

yes

Front 40

Is there ever a 6AMD right to photo array ID procedures?

Back 40

no

Front 41

Does a pretrial ID which is so unnecessarily suggestive that there is a substantial likelihood of misidentification crease a Due Process Concern?

Back 41

yes

Front 42

What is the remedy for constitutional violations in pre-trial identifications?

Back 42

exclusion of witness ID in court

Front 43

What happens at "First Appearance"

Back 43

D is brought before a magistrate who will advise him of his rights, set bail, and appoint counsel if necessary

Front 44

Are decisions regarding bail immediately appealable?

Back 44

yes

Front 45

What must a prosecutor disclose to a criminal D

Back 45

all material exculpatory evidence

Front 46

When does a criminal D have a right to a jury trial?

Back 46

when max sentence CAN BE > 6 months

Front 47

Fewest number of jurors in a criminal trial

Back 47

6

Front 48

Must jury trial verdict be unanimous?

Back 48

only if 6 jurors are used

Front 49

What is the meaning "cross-sectional" requirement regarding jurors?

Back 49

jury pool represents cross section of the community

Front 50

Two prong test for ineffective assistance of counsel

Back 50

- counsel's performance was deficient
- but for the deficiency the outcome would be different

Front 51

Four requirements for plea taking colloquy

Back 51

- nature of charge
- max authorized sentence and any mandatory minimum
- D has right to plead not guilty and proceed to trial
- by pleading guilty, D is waiving trial and going directly to sentencing

Front 52

When may a D withdraw a guilty plea after sentencing (4)

Back 52

- problem with colloquy
- jurisdictional defect
- D prevails on ineffective assistance of counsel claim
- prosecutor fails to fulfill his part of the bargain

Front 53

What does the 8AMD prohibit?

Back 53

criminal penalties that are grossly disproportionate to seriousness of offense committed

Front 54

Three categories of people who may not be sentenced to death

Back 54

- mentally retarded
- presently insane
- under 18 when relevant offense occurred

Front 55

When does double jeopardy attach?

- jury trial
- bench trial
- guilty plea

Back 55

- when jury is sworn
- when first witness is sworn
- when CT accepts plea, unconditionally

Front 56

Does double jeopardy apply to civil proceedings?

Back 56

no

Front 57

Requirement for two offenses to not be the "same" offense for purpose of double jeopardy?

Back 57

each has a element the other does not

Front 58

Same Sovereign

State v. Fed
State v. State
Stave v. City

Back 58

- no
- no
- yes

Front 59

Four exceptions for double jeopardy rule that permit retrial

Back 59

- hung jury
- mistrial for manifest necessity
- retrial after appeal
- breach of plea bargain by D

Front 60

If "taking the fifth" is not asserted at the first opportunity, is it forever lost?

Back 60

yes

Front 61

Three ways to eliminate the Self-Incrimination privilege

Back 61

- prosecutorial grant of "use and derivative use" immunity
- D takes stand
- SoF runs on underlying crime