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134 Cards in this Set

  • Front
  • Back
What does the Fourth Amendment guarantee?
Prohibition against unreasonable searches and seizures
What does the Fifth Amendment guarantee? (2)
1) privilege against compulsory self-incrimination
2) no double jeopardy
What does the Sixth Amendment guarantee? (6)
1) speedy trial
2) public trial
3) trial by jury
4) right to confront witnesses
5) compulsory process for obtaining witnesses
6) assistance of counsel in felonies and misdemeanors where prison time is imposed
What does the Eighth Amendment guarantee?
prohibition against cruel and unusual punishment
What is the exclusionary rule?
Any evidence obtained in violation of the 4th, 5th, and 6th amendments are inadmissible at trial as well as all "fruits of the poisonous tree."
What are exceptions to the fruit of the poisonous tree doctrine?
1) fruits obtained from statements obtained from an unintentional failure to give Miranda warnings
2) evidence obtained from independent source
3) intervening act of free will by the defendant
4) inevitable discovery
5) violations of the knock and announce rule
What are some limitations of exclusionary rule?
- otherwise voluntary statement may be used to impeach the defendant
- when officers arrest in good faiht
What is the harmless error test?
If illegal evidence is admitted, a resulting conviction should be overturned unless govt can show beyond a reasonable doubt that the error was harmless
How is the admissibility of evidence decided?
By a judge outside the jury's presence proven by the govt by a preponderance of the evidence.
What constitutes a seizure?
When a reasonable person would believe he is is not free to leave or terminate an encounter with the govt.
What is an arrest?
When the police take a person into custody against her will for criminal prosecution or interrogation.
What does the Fourth Amendment provide?
That people should be free of unreasonable searches and seizures.
What is required of a proper arrest?
Probable cause + warrant if made at home
What is probable cause?
trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime
When may police detain a person for investigation?
1) reasonable suspicion of criminal activity
2) supported by articulable facts
When may a person frisk someone?
if police have a reasonable suspicion that the detainee is armed and dangerous
When may the police stop automobiles?
- if there is reasonable suspicion that the law has been violated
- during a proper roadblock
What is required of a valid roadblock?
1) stops cars on the basis of a neutral, articulable standard
2) designed to serve purposes closely related to a particular problem pertaining to autos and their mobility
Who has standing to challenge the validity of an auto stop?
1) driver
2) all passengers
Are pretextual stops okay?
Yes! An officer may stop a car if violated traffic law even if for ulterior motive.
Does valid warrant allow detention of those on the premises?
Yes, officers may detain occupants of premises while conducting a proper search.
What are the steps to determine whether there is a valid search and seizure?
1) search and seizure by a government officer?
2) Is there a reasonable expectation of privacy--to trigger 4th amendment?
3) is there a valid warrant?
4) if no valid warrant, is there a valid warrantless search?
What is a valid warrant?
Issued by a neutral and detached magistrate on showing of probable cause and reasonably precise location to be searched and items to be seized.
What does "reasonable expectation of privacy" mean?
look at the totality of circumstances

1) he owned or had a right to possession
2) the place searched was in fact his home
3) he was an overnight guest of the owner of the place searched
4) whether or not it was held out to the public
When can an informant give probably cause?
Must look at totality of circumstances. Reliability and credibility of informer need not be established.
When can an affidavit NOT offer probably cause?
1) false statement in the affidavit -AND-
2) affiant intentionally or recklessly included the false statement -AND-
3) false statement was material to the finding of probable cause
When may police use a warrant not supported by probable cause?
If the police used the warrant with good faith.
How is a warrant used?
1) Police must be the ones executing
2) executed without reasonable delay
3) must knock and announce and wait reasonable time for admittance (unless futile)
What happens if the police violate the knock and announce rule?
Violations of the knock and announce rule WILL NOT result in suppression of evidence under the exclusionary rule.
What are the warrantless search exceptions?
Automobile exception
Plain sight
Incident to a valid arrest
Stop and frisk
Hot pursuit
With a valid warrant, what can the police do with persons found on the premises?
May detain for questioning but may NOT search them.
What may police do during a search incident to a valid arrest?
1) search the person
2) search areas which he might reach to obtain weapons or destroy evidence (wingspan)
3) protective sweep of the area if belief of present accomplices
What are the requirements of a search incident to a valid request?
1) must be a valid arrest
2) search must be done contemporaneous (not necessarily simultaneously) with the arrest
When may police search the arrested person's auto?
1) arrestee is unsecured and still may gain access to the interior of the vehicle
2) police reasonably believe that evidence of the offense may be found in the auto
What is the automobile exception?
If the police have reason to believe that a vehicle contains evidence of a crime, they may search the whole vehicle and any container which may reasonably contain the evidence for which they have probably cause to search.
What is the plain view exception?
1) police are legitimately on the premises
2) they discover evidence of a crime or contraband
3) such evidence is in plain view
4) police have probable cause to believe that the items are evidence of crime
What is the consent exception?
Valid if police have a voluntary and intelligent consent.
Knowledge that person may refuse consent is not required.
Who may give consent?
Any person with apparent equal right to use or occupy the property may consent, but not against a co-owner's objection.
What is the stop and frisk exception?
1) stop without probable cause if there is a reasonable suspicion of criminal activity
2) frisk if reasonable belief person armed and dangerous
When is evidence from a frisk admissible?
When during a frisk, the "plain feel" is of a weapon or contraband.
What are the hot pursuit, evanescent, or emergency exceptions?
1) police in hot pursuit of a fleeing felon
2) evidence is likely to disappear before a warrant can be obtained
3) contaminated food or drugs, persons injured, burning fires
When may inspectors make warrantless searches?
1) to seize spoiled or contaminated food
2) searches of a business within a highly regulated industry
3) inventory searches of arrestees pursuant to department procedure
4) airline passengers before boarding
5) parolees and their homes
6) govt workers' desks and file cabinets
7) drug tests of railroad employees involved in an accident
8) drug tests of persons seeking customs employment
9) drug tests of students involved in extracurricular activities
When may a public school official search public school students or their possessions?
If there are "reasonable" grounds:

1) moderate chance of finding evidence of wrongdoing
2) measure adopted are reasonably related to the objectives of the search
3) search is not excessively intrusive in light of age and sex of student
How does the Fourth Amendment apply to foreign related issues?
- no Fourth Amendment guarantee with searches involving aliens
- no warrant needed in border searches
- international mail if reasonable suspicion
- Immigration services may do a "factory survey" to determine citizenship of employees
- Reasonable suspicion of traveler may be detained
When may a valid warrant be used to authorize a wiretap search?
1) probable cause
2) persons to be overheard are named
3) warrant describes what conversations are to be overheard
4) wiretap limited to a short period of time
5) terminated when information has been obtained
6) results given to the court
When is a self incriminating statement admissible under the Due Process Clause?
If the statement was given voluntarily, as determined by the totality of the circumstances.
What does the Sixth Amendment guarantee with regard to right to counsel?
- The right to counsel in all criminal proceedings which include all AFTER judicial proceedings have begun
- Prohibits police from deliberately eliciting an incriminating statement from D outside presence of counsel after D has been charged
At what stages does an arrested person have right to counsel under the Fifth Amendment?
1) custodial police interrogation
2) post-indictment interrogation (custodial or not)
3) preliminary hearings to determine probable cause to PROSECUTE
4) arraignment
5) POST charge line-ups
6) guilty plea and sentencing
7) felony trials
8) misdemeanor trials when imprisonment or jail time are involved
9) overnight recesses during trial
10) appeals
At what stages does an arrested person NOT have right to counsel under the Fifth Amendment?
1) blood sampling
2) taking of handwriting or voice samples
3) PREcharge or investigative lineups
4) photo id
5) preliminary hearings to determine probable cause to DETAIN
6) brief recesses during D's testimony at trial
7) discretionary appeals
8) parole and probation revocation proceedings
9) post conviction proceedings
When can a right to counsel be waived?
If D waived voluntarily, knowingly, and intelligently. Determined by the judg.
What happens if the D doesn't get a lawyer at nontrial proceedings?
Harmless error rule applies.
What happens if the D doesn't get a lawyer at trial proceedings?
Automatic reversal of conviction, even without finding of prejudice or harm.
May a statement obtained in violation of the Sixth Amendment ever be used?
Yes, for impeachment of the defendant.
What is required for a confession or admission to be admissible under the Fifth Amendment right against self incrimination? (Miranda warnings)
Miranda Warnings must be offered before interrogation:
1) right to remain silent
2) anything he says may be used against him in court
3) right to presence of an attorney
4) if can't afford one, an attorney will be appointed if he wants
When is Miranda required?
1) if interrogation by a govt agent
2) if person in custody (freedom restrained)
3) interrogation
What is interrogation?
Words or conduct by the police that they should know likely would elicit a response from the defendant.
When may a person terminate the interrogation?
at any time--before or during
What if the person wishes to remain silent?
If person wished to remain silent the police must honor it scrupulously, but may question about another unrelated crime.
What if the person requests counsel?
If a person requests counsel, all questioning must cease until counsel provided.
What happens generally if Miranda is violated?
- generally the evidence is suppressed
- may be used for impeachment of defendant
- may be admissible if failure to give Miranda warnings was not on purpose
When does a suspect have right to counsel during a lineup?
- only during a POST charge lineup
- not during a lineup because doesn't involve testimony
Any alternatives to getting a lineup in if the pretrial id was unconstitutional?
If an independent source (e.g. a witness to the crime) exists who can do an in-court id.
How is the constitutionality of id evidence determined?
- during a pretrial hearing away from a jury

Govt must prove:
1) counsel was present OR
2) counsel was waived OR
3) there is an independent source
When is it determined whether or not probable cause to detain?
During an informal pretrial hearing given within a reasonable amount of time.
What right does a person have regarding bail?
- Most states give right to be released on bail unless charge is capital.
- denial of bail may be appealed immediately
- usually denial of bail is a violation of Due Process since the right to bail is usually in the state constitution
What is a grand jury?
- a jury that determines whether there is sufficient evidence for trial
- not all states require a grand jury (e.g CA doesn't)
What rights do witnesses at a grand jury trial have?
- no Miranda rights
- no right to counsel
- no right to have evidence excluded (even if it will likely be excluded for the criminal trial)
When may a grand jury decision be reversed?
If the a minority group has been excluded from the grand jury.
How does one determine whether D has been afforded right to speedy trial?
Look at the totality of the circumstances:
1) length of delay
2) reason for delay
3) whether defendant asserted his right
4) prejudice to the defendant

If not met --> dismissal with prejudice
When does the right to a speedy trial attach?
At the time of arrest or charge.
When is the prosecutor's duty to disclose exculpatory evidence violated?
If D can prove:
1) evidence if favorable to him for impeachment or exculpatory purposes
2) D has been prejudiced and reasonable probability that result would have been different with disclosure
For what must the D give the govt notice?
1) if they plan to use an alibi or insanity defense
2) must give witness list
Other than exculpatory evidence, what must govt provide to the D?
1) witness list
2) no comment on D's failure to take the stand
What is the difference between insanity and mental competency?
- mental insanity is a defense to the crime
- mental incompetency is a defense to stand trial
When is a person incompetent to take the stand?
1) lack a rational and factual understanding of the charges and proceedings OR
2) lacks sufficient present ability to consult with his lawyer with understanding

Prove with clear and convincing standard
When may a person be entitled to a change of venue or a retrial?
excessive pretrial publicity prejudicial to the defendant
What rights are involved in a "fair trial?"
1) Right to a public trial--pretrial and the trial itself
2) Right to unbiased judge
3) No violation of due process:
- trial conducted in way that makes it unlikely th ejury fully considered the evidence
- state compels D to wear prison uniform
- state compels D to wear visible shackles
- just exposed to influence favorable to the prosecution
What must a person prove to show a biased judge?
That judge has actual malice against the defendant or financial interest in the trial result.
When is a jury trial guaranteed?
- for serious offenses--punishment is imprisonment for 6 mo or more
- re: juvenile delinquency
- if aggregate contempt penalties are more than 6 mo
What type of jury is a person guaranteed?
At least a 6 person jury.
When is a person's right to a jury of a representative cross section violated?
When atty uses peremptories for race or gender:
1) D must show facts or circumstances that raise an inference that race or gender was basis for exclusion
2) P must then give race or gender neutral explanation for choices
3) judge determines whether P was genuinie
What are some topics that a D has a right to ask?
1) racial bias
2) opposition or favor of death penalty
Who determines sentencing enhancements?
the jury decides facts for jury enhancement by a preponderance of the evidence.
What does a right to "effective counsel" mean?
Effective counsel presumed, and may be rebutted:
1) deficient performance
2) but for the deficiency, result would have been different

(note: lack of time to prepare and inexperience are not valid "deficiencies")
What rights to support services does the defense have?
Right to have the state provide a psychiatrist if D plans on bringing insanity defense.
Does a defendant have a right to consult with her attorney while testifying?
May a defendant use drug money to pay attorney's fees?
If co-defendant gives confession that implicated the other, when may that person's statement be used?
Usually can't be used b/c of witness' right to not self incriminate. Exceptions:
1) all portions referring to D are eliminated
2) confessing D takes the stand and subjects himself to cross
3) confession used to rebut the d's claim that his confession was coerced out of him
When may prior testimonial be admitted?
Usually can't because of the confrontation clause unless
1) declarant unavailable
2) D had a chance to cross examine declarant.
What types of evidence are testimonial?
- statements made at pretrial hearing, grand jury, hearing, police interrogation to prove past conduct, lab testing results
- NOT emergency response convo
When is a guilty plea valid?
If given voluntarily and intelligently and on the record. Judge must determine that D understands:
1) nature of the charges
2) the max possible penalty and mandatory minimum
3) that he has a right to not plead guilty and if he does he waives right to trial
When can a plea be set aside?
1) involuntary
2) lack of jurisdiction
3) ineffective assistance of counsel
4) failure to keep the plea bargain
What collateral effects does a guilty plea have?
- may be used as a conviction when relevant (e.g. sentence enhancement)
- may not be used to show legality of incriminating evidence
What must a judge do when a great punishment is imposed after an appeal?
The judge must set forth on the record the reasons for a harsher punishment.
What does the 8th Amendment protect?
Protects a person against cruel and unusual punishment--a grossly disproportionately penalty to the seriousness of the offense.
How may a death penalty be imposed?
Only under a statute that gives the judge and jury reasonable discretion, full information regarding defendant, and guidance. Must be clear and not vague.
What happens if the death sentence is based on a prior conviction and that prior conviction is invalidated?
The sentence must be reversed.
May a felony murder defendant get the death penalty?
Person cannot be sent to death unless his participatin was major and he acted with reckless indifference to the value of human life.
May a rapist get the death penalty?
Not if the rape was neither intended to result in death.
May an insane person get the death penalty?
Not if he was insane at the time of the execution, even if he was sane at the time of the crime.
May a mentally retarded person get the death penalty?
May a person under 18 years get the death penalty?
May a person's status make him eligible for the death penalty?
Is there a constitutional right to an appeal?
What rights in appeal are indigents given?
They are given the right to counsel at the state's expense during the first appeal granted as a matter of right, but not for a second discretionary appeal (if applicable).
What is the burden of proof for a writ of habeas corpus and when may it be brought?
Must prove unlawful detention by a preponderance of the evidence and only if D is in custody.
Is defendant entitled to counsel if after probation revocation an imposed sentence springs into application?
Only if it is necessary for a fair hearing.
When do prison regulations impose upon a prisoner's due process rights?
only if they impose atypical and significant hardship
Do prisoner's have fourth amendment rights in prisons?
No--no reasonable expectation of privacy in prisons
What First Amendment rights are prisoners given?
Freedom of speech, association, and religion may be burdened by regulations reasonably related to interests of running a safe prison.
What is double jeopardy?
Under the 5th amendment a person may not be retried for the same offense once jeopardy has attached.
When does jeopardy attach?
Jury trials: at the empaneling and swearing of the jury.

Bench trial: at the swearing in of the first witness

Commencement of juvenile proceeding bars subsequent criminal trial.
When is a crime different from another crime?
When each crime requires proof of an additional element that the other one doesn't need.
When are cumulative punishments allowed?
When there is a legislative intent to have cumulative punishments.
What is the effect of attachment of jeopardy for a greater offense?
It bars retrial for a lesser offense.
What is the effect of attachment of jeopardy for a lesser offense?
It bars a greater offense.
What is the exception to the double jeopardy bar against being charged for a subsequent greater offense?
Despite a previous attachment of jeopardy, unlawful conduct may be used to prove a greater offense if:
1) the conduct had not occurred at the time of the prosecution OR
2) it had not been discovered despite due diligence
To what type of crime does double jeopardy attach?
- to criminal cases only
- may bring similar civil action or if it was a civil action, may bring similar criminal action
May separate sovereigns try a defendant for the same offense?
Yes! Remember though that municipalities are part of the state, so can't try same offense in the city and in the state.
Who may assert the privilege against compelled self-incrimination?
Only persons, not corporations or partnerships.
When may the privilege against self incrimination be claimed?
Whenever his response might furnish a link in the chain of evidence needed to prosecute him.

Must be claimed in civil proceedings to later claim in criminal proceedings.
How does one invoke the privilege?
Criminal: refusal to testify

Civil: refusing to answer when a particular question comes up.
Can the 5th Amendment prevent the introduction of physical or real evidence?
No--only applies to testimonial or communicative evidence. This means that incriminating documentation is not protected.
When does a 5th Amendment violation occur?
When a person's compelled statements are used against him in a criminal case.
May the prosecutor comment about defendant's silence or failure to testify?
No! Defense counsel may ask for instruction telling jury not to infer anything from lack of testimony. May only refer to D's lack of testimony to rebut defense counsel's statement that D not allowed to tell his story.

Harmless error applies though.
What is "use and derivative use" immunity?
It guarantees that a witness' testimony and evidence from the testimony won't be used against the witness. (doesn't mean prosec can't get evidence form elsewhere though)
How is testimony obtained via promise of immunity treated?
It is considered to be involuntary testimony and therefore may not be used for to impeach D's testimony.

Can be used for perjury though.
How far does immunity of testimony extend?
only to the offense to which the testimony relates
What rights must be given to juvenile delinquents during a trial?
1) written notice of charges
2) assistance of counsel
3) chance to confront and cross examine witnesses
4) right not to testify
5) right to have "guilt" established by burden of beyond a reasonable doubt

No right to trial by jury.
What rights does a person have when personal property is seized?
- not entitled to a hearing or notice during forfeiture proceeding
- entitled to hearing and notice before final forfeiture
What rights does a person have when real property is seized?
notice and an opportunity to be heard unless govt has other compelling reasons not to
What is the Excessive Fines Clause of the 8th amendment?
prohibits a penal forfeiture (aka penalty) that is grossly disproportionate to the gravity of the offense.
What is an innocent owner defense?
In some states, a valid defense against property crimes is that the owner took all reasonable steps to avoid having the property used by another for illegal purposes.

This statutory offense is not required under Due Process.