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100 Cards in this Set
- Front
- Back
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In Va criminal procedure, what are the 2 non-waivable rights?
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a. Appearance (right not to be tried in one’s absence, unless def disrupts)
b. Failure of indictment to state offense (indictment must state all elements) |
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In Va criminal procedure, what are the 3 rights waivable only by affirmative action?
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a. Right to counsel
b. Miranda rights c. Right to jury trial --All other waivable rights are waived by failure to assert |
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What is wrong with this sentence: “The state officer violated the 4th Amendment."
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a. The first 8 amendments apply against the states only because of the 14th Am’s due process clause
b. Language: “The state officer violated the 4th Am <b>as incorporated by the 14th Am</b>” |
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What is required for an arrest in a public place?
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No warrant is needed; just probable cause
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Is a warrant required for an arrest in one's own home? Can police enter the home to arrest, or do they need a search warrant?
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An arrest warrant is needed, but a search warrant is NOT needed.
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If police have an arrest warrant for X, can they enter Y's home to get X?
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No. To get into another person’s home, they need a search warrant.
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In Va, when can state officers make an arrest without a warrant?
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a. Felonies: police can make an arrest for a felony even if NOT in their presence
b. Misdemeanors: police can ONLY make an arrest for a misdemeanor in his presence |
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Is the probable cause standard objective or subjective?
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Objective standard: from the perspective the reasonable law enforcement officer
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When will due process block a search?
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Due process special cases: search cannot be “shocking to the conscious”
1) Stomach pumps: not allowed 2) Compelled surgeries: not allowed |
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What is required in a search warrant (what must it say)?
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Reasonable detail as to the place to be searched, thing to be seized
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What must the affidavit that requests a search warrant demonstrate?
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On its face it must demonstrate probable cause
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Under what circumstances can a def invalidate a warrant?
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To invalidate the warrant, the def must show: an intentional lie relating to a material fact by a govt official
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What is the good faith exception to exclusionary rule?
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If police officers act in good faith—i.e., reasonably believe the warrant is valid—the evidence will not be excluded even if the warrant is faulty
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True or false: a warrant must be issued by a neutral magistrate
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True
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While executing a warrant, can police detain people?
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Police can detain people during the search (but cannot search them during that)
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What is the knock-and-announce requirement for warrant execution?
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Generally must knock and announce before executing a search warrant
--Exception: exigencies (case-by-case; no blanket exception for drug search cases) |
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Will violation of the knock-and-announce requirement for warrant execution trigger the exclusionary rule?
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No, violation does NOT trigger exclusionary rule (the police had a valid warrant)
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What is the rule regarding searches incident to arrest?
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Police officers making a lawful arrest can search the person automatically and the area under her control
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Can a search incident to arrest on an arrestee's person be conducted long after the arrest?
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Yes
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Can a search incident to arrest on the area under an arrestee's control be conducted after the arrestee is moved from that area?
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No. Area must be searched while within her control (I.e., once they lock the person in the squad car, they have no right to search the person’s car.
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If police have probable cause to think a vehicle contains evidence, can it be searched without a warrant?
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Yes ("movable vehicle exception").
i) This includes any containers in the vehicle that might contain the evidence ii) I.e., you can’t search for a shotgun in a change purse |
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Under the movable vehicle exception, can a search be conducted after towing the vehicle back to the station?
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Yes. It does not need to take place on the open road. They can tow the car back to the station and search it there.
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What is the rule regarding inventory searches?
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Police can conduct a routine inventory so long as it is a standard operating procedure so long as the car is lawfully in custody
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What is the rule regarding sobriety checkpoints?
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Allowed if
i) Routinely done, ii) Specific car-related purpose (breath test, ask drivers if they’d seen a recent hit and run) iii) Limited intrusion: short time only |
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What is the plain view doctrine?
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If the officer is in a place where has a lawful right to be, he can testify to all that is plainly open to the public.
--Limits: On a warrant for specific items, they cannot search areas they cannot possibly contain the evidence. Called “exceeding the scope of the warrant.” |
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What is the general rule regarding consensual searches?
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Fine as long as consent was voluntarily given
--Voluntariness: Determined by totality of circumstances (show of force --> usually involuntary) --Note: Police do NOT have to give you a warning as your right to decline consent |
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Generally, can your agent give consent to search your property?
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Yes, and apparent authority is enough
--E.g., police can infer that the person coming to the door with an apron lives there |
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What are the 3 exceptions to the general rule regarding an agent's ability to consent to a search of a principal's property? (I.e., what people CANNOT give consent despite being agents?)
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The following CANNOT give authority to search:
i) Hotel operators ii) Landlords iii) Spouse: where both are present the spouse against whom the search is directed can deny consent and thus trump the other's spouse's consent |
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In criminal procedure, can 2 people living in the same place can generally give authority to search the area?
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Yes
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When can police conduct a stop-and-frisk search?
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Terry: Police may conduct a stop-and-frisk if:
1) Reasonable articulable suspicion (less than PC) that a crime is about to take place and def is armed and dangerous 2) Officers can stop the person and ask questions, and if answers do not dispel suspicion, 3) The officers can pat down outer garments |
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In criminal procedure, is flight enough by itself to constitute reasonable suspicion?
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No
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What is the general rule regarding a search under exigent circumstances?
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Allows for search without a warrant in an emergency. Scope of the search is limited to the emergency.
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In criminal procedure, what is the doctrine of hot pursuit?
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If police are chasing the guy, they can follow him into a house without a search warrant (exigency)
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In police arrive to the scene of a homicide, can they enter the house without a warrant?
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Yes (exigency)
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If police arrive at the scene of a crime, can they secure the premises without a warrant?
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Yes they can search area be sure of no danger (exigency)
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Is there an expectation of privacy to garbage bags on the street?
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NO
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What is the standard for searches of public school children?
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Reasonable suspicion, not PC
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What is the standard of proof for showing a confession to be voluntary?
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Preponderance of the evidence (must be more likely than not voluntary)
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Who determines the voluntariness of a confession: judge or jury?
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Judge
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When are Miranda warnings required? Describe fully.
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Warnings are required for statements given in response to <b>custodial interrogation</b>
1) Interrogation: any police action reasonably likely to elicit a response (e.g., showing a photo to a suspect) 2) Custody: Would a reasonable person believe their freedom of movement was substantially limited (i.e., are you free to leave?) |
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Does Miranda apply to routine traffic stops?
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No
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What is the actual wording required for Miranda warnings?
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You have a right to remain silent. Anything you say may be used against you. You have a right to an attorney, and one will be provided if you cannot afford one.
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What is the standard for evaluating a waiver of Miranda warnings?
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1) The only question is was it a voluntary and knowing waiver
--Waiver need not be express 2) We do NOT presume a waiver just because the person spoke |
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If a person invoked his Miranda rights, can he later waive it and talk after being read the Miranda rights again?
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Yes. I.e., interrogation can resume after being read Miranda again and waiver.
--Exception: If a person asks for a lawyer, he cannot later waive it. |
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If a person invoked his Miranda rights by asking for a lawyer, can he later waive it and talk after being read the Miranda rights again?
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No. But the request for a lawyer must be clear (e.g., “do you think I need a lawyer?” is not enough)
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What is the "public safety" exception to Miranda?
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Where the purpose of the questioning is public safety, not merely trying to develop the case against the def, then no Miranda warnings are required
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If Miranda is violated, will fruits of that poisonous tree be admissible?
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Yes, they WILL be admissble unless Miranda violation was intentional
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If a pretrial identification is illegal in some way, will a subsequent identification at trial be allowed?
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Despite an illegal pretrial notification, a later identification of the def at trial may be admissible IF it is independent from the pretrial identification
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Under what circumstances can a trial identification be allowed despite an invalid pretrial identification--even though the two were NOT independent?
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If not independent, is there are two constitutional questions
1) Was the pretrial identification reliable? 2) 6th Am Right to Counsel: If the def has been formally charged—i.e., there is in an adversary judicial proceeding—he is entitled to have his lawyer present during the lineup. |
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When is a def entitled to a lawyer at a lineup?
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a) Only after the formal charge (which is often after the lineup)
b) And only for a real human being line up (not photo line-up) --Remedy: exclusion |
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Standing: In criminal procedure, when will a person have standing to challenge the search of a home that is not his own?
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Def must show that she has sufficient privacy interests that were invaded by the search.
--Guests would have to show a “sufficient privacy interest” through, e.g., routinely being at the house, having a key, spending the night regularly, etc. |
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What is the test for whether evidence is fruit of the poisonous tree?
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Test: Was the ultimate piece of evidence still tainted by the underlying illegality, or has the taint been attenuated?
1) Parallel to proximate cause in tort law 2) Note: it's NOT a but-for test |
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From what amendment do we get the right to a speedy trial?
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6th
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What factors should be considered when evaluating whether a trial was "speedy" for constitutional purposes?
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Generally:
a. Length of delay: no set period of time in con law b. Reasons for delay: was the delay innocent or an intentional ploy by the govt c. Cause of delay: which party is responsible for the delay? d. Prejudice: what will the impact be on the trial? |
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Timing: In Va, within how long must a criminal defendent go to trial or else risk dismissal because the trial was not speedy?
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Two key time periods:
i) Defendant in custody: 5 months from formal charge ii) Defendant NOT in custody: 9 months from formal charge |
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In Va, when must a speedy trial issue be raised?
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Issue must be raised in a timely manner (before verdict/judgment)
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What is the remedy for violating the right to a speedy trial?
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Acquittal
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Can the state legislature extend the time period required to try criminal defendant while the person is in custody?
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No
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Can the time periods for a right to a speedy trial be tolled?
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Yes, tolling can occur for special reasons, like insanity, def’s continuance, interests of justice, etc
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What are the judge's possible remedies for publicity issues--i.e., factfinder is not impartial?
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Three main options
1) Delay the trial 2) Sequester the jury 3) Change of venue |
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If there is too much publicity surrounding a trial, can the judge close the trial?
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No. 1st Am means judge must leave trial open unless there is a compelling interest and no less restrictive alternative. Circuit courts routinely find a less restrictive alternative
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Can the court allow cameras in the trial? What if the parties object?
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a. It is not per se unconstitutional to have cameras, even if the parties object
b. Question is whether the trial will be adversely affected by the cameras |
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When is a criminal defendant entitled to a trial by JURY?
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a. Sentencing law with a statutory maximum: if the maximum is more than 6 months, you have a right to jury
b. Sentencing law with no statutory maximum: entitled to a jury trial if the actual sentence imposed is > 6 months (an after-the-fact determination) --I.e., if the judge gave no jury, he can’t give you more than 6 months |
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Must a jury in a federal criminal trial reach its verdict unanimously? What about under virginia law?
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1) Federal law does NOT require a unanimous verdict
2) Virginia juries MUST be unanimous |
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How many jurors are required in a federal criminal trial?
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1) Federal law does NOT require 12. It requires 6 or more.
2) But if there are 6, it must be unanimous |
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What is "cause" in a juror challenge for cause?
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Cause to believe the juror will not be impartial.
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How many preemptory challenges are allowed in Va in a FELONY criminal trial?
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Felony trial:
a) Size of pool: the pool must be down to 20 jurors to start preemptories b) Four preemptory challenges per side c) Final jury: 12 members |
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How many preemptory challenges are allowed in Va in a MISDEMEANOR trial?
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Misdemeanor trial:
a) Size of pool: the pool must be down to 13 b) Three preemptory challenges per side c) Final jury: 7 members |
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When must a jury be involved in criminal sentencing... in a federal trial? ... a Va trial?
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a. Federal: If key facts are necessary to increase a sentence, then you need a jury (Booker)
b. Virginia: juries make the complete sentencing recommendation (judges usually follow them) |
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How must a waiver of the right to counsel be done to be valid?
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Must explicitly waive right on the record
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In a criminal case, when does the right to counsel attach?
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Once formerly charged, if the def is being interrogated by a police/agent of police, he has a right to counsel and must be told of this right.
--E.g.: Def is formerly charged and released on bail. Though Miranda doesn’t apply, the Sixth Amendment does, so he can't be questioned. |
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In the post-trial following a criminal case, when does the right to counsel attach?
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Def has right to a lawyer at sentencing and at his automatic appeal
--Right to lawyer for discretionary appeal is based on discretion of court |
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What is the test for showing ineffective assistance of counsel?
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Test: Def must show (a) attorney was not reasonably competent, and (b) the lack of competence affected the outcome of trial
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Can a jury be instructed that “the def must prove heat of passion by a preponderance”?
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No.
a. Voluntary manslaughter is NOT a defense; it’s a special crime defined in the negative b. So to prove murder, govt must show the elements of a murder AND must show that there was NO heat of passion, all BARD |
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If the government breaches a guilty plea agreement, what is the remedy?
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Remedy: If the govt breaches, the def can “rescind,” i.e., withdraw the plea of guilty and proceed to trial.
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What is a plea of nolo contendre?
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No Contest: You’re not denying guilt, but you’re also not admitting it.
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What is the significance of a plea of nolo contendre for a later civil trial?
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A guilty plea can be used against you in a civil case. A plea of nolo condendre usually can’t, but in Virginia, this plea CAN be used against you in civil cases.
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When does the limitation on double jeopardy attach in a jury trial?
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Not until the jury is sworn (I.e., if the jury hasn’t been sworn in, there can be no double jeopardy issue)
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When does the limitation on double jeopardy attach in a bench trial?
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No double jeopardy problem until the first witness is sworn in
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When can a defendant be tried despite the double jeopardy?
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Manifest necessity: If (1) it is necessary to have a new trial and (2) it was not the govt’s fault, there is no double jeopardy problem. (I.e., judge dies halfway through)
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In criminal procedure, what is the dual sovereignty rule?
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Double jeopardy applies to multiple trials for the same offense by the same jurisdiction (i.e., you can be tried in two states, or state and fed ct, for single crime)
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What is the test for whether 2 crimes are sufficiently similar to trigger double jeopardy?
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Test: Does each crime require proof of an additional element that the other crime does not require?
--Strategy: bar exam nearly always asks about conspiracy and underlying substantive offense. No double jeopardy there. |
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If a defendant's conviction is overturned on appeal, will double jeopardy attach?
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Generally not. If the def appeals his conviction, he waives the double jeopardy claim and can be retried.
b. Murder Exception: if you are charged with an offense (murder), and convicted only of the lesser-included offense (manslaughter), and then your conviction if overturned on appeal, you can be retried ONLY for the lesser offense (manslaughter) |
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In Va, will a prosecution for a substantive offense bar a later prosecution for related conspiracy (or vice versa)?
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YES. This is a special Va rule.
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In Va, will being prosecuted for federal crime bar later state prosecution under equivalent state statute?
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YES. This is a special Va rule.
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Under federal law, will being prosecuted for state crime bar later federal prosecution under equivalent federal statute?
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No. (But the opposite is true in Va.)
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Under federal law, will a prosecution for a substantive offense bar a later prosecution for related conspiracy (or vice versa)?
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No. (But the opposite is true in Va.)
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Is a state law stop-and-identify statute constitutionally valid?
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Depends on the lawfulness of the stop.
1) If the stop is lawful, there is NO 5th Am problem (“mere ministerial info”) 2) if the stop is unlawful, the 4th Am will bar the identification as fruits of the poisonous tree |
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Does the 5th Amendment apply to line-ups, DNA tests, and voice identifications (i.e., can a defendant refuse them)?
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No, the def cannot refuse them under the 5th Am.
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Can a defendant who has been granted immunity nonetheless refuse to testify by invoking his 5th Amendment right?
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No. He must testify or be held in contempt.
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In Va, where must a prisoner file his habeas petition?
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Def must file for habeas in the original sentencing court, not where he is being held
--Exception for capital cases: habeas is filed directly with Va Supreme Court |
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In Va, what occurs at the preliminary appearance for a misdemeanor?
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Usually the full trial occurs at the same time as the preliminary hearing
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In Va, in what court is the preliminary hearing for a felony held?
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GDC
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In Va, in the preliminary hearing for a felony charge, what are the judges 3 options?
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Judge has 3 options at PC hearing:
i) Judge can find PC and send to circuit court for trial ii) Judge can find no PC and dismiss iii) Judge can find no PC for the felony but find PC for a misdemeanor, and can then dismiss the felony and hold trial for the misdemeanor on the spot. |
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In Va, what are the 2 kinds of grand juries?
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a. “Charging grand jury”: determines if there is PC for a particular charge (indictment)
b. “Special, investigative grand jury”: limited power, issues a report (cannot indict for crimes) |
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What is the consequence for an improper indictment?
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Usually, irregularities and errors in indictment is harmless (can be corrected)
--Two common problems: (a) failure to state offense; (b) systematic exclusion from grand jury on basis of race |
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In Va, for a felony charge, is the defendant entitled to an indictment? To a probable cause hearing? Can these be waived?
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1) For a felony charge, def is entitled to an indictment (waivable)
2) For felonies, def is entitled to a PC hearing (waived; can be waived through silence) |
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What is the rule of discovery for criminal trials in Va?
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Reciprocal discovery: if def makes a motion for discovery and it’s granted, govt can usually get the same from the def (i.e., copies of each’s expert report)
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In Va, when is a criminal defendant entitled to bail?
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A def in custody is entitled to be admitted to bail UNLESS either
1) PC to believe the def will not appear at later proceeding, OR 2) PC to believe the def at liberty would present an unreas danger to public (“preventative detention”) --Note: violent crime=rebuttable presumption of danger. |
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In Va, to which court do you appeal a conviction in a capital case?
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Directly to the Va Supreme Court
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