Reading...
Play button
Play button
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;
31 Cards in this Set
- Front
- Back
|
Sources of Law
|
US Const, Washington Law – state constitution especially for search and seizure (Art. 1 sec 7 privacy) & state statutes and rules for crim pro, especially for speedy trial and arraignment
|
|
|
Exclusionary Rule
|
Govt may not profit from its own wrongdoing and therefore may not use either the direct results or fruits of illegality
|
|
|
Scope of Exclusionary Rule
|
Evidence produced by violations of 4th, 5th, and 6th am. rights – especially confessions and physical evidence. And fruits of the poisonous tree
B. Taint/”Fruit of Poisonous Tree” – even if mirandized after illegal search C. Limitations – may use for impeaching a testifying D D. Exceptions – “cutting the causal link” 1. Independent Source/Intervening Cause – If they got the info in another lawful manner 2. Intervening act of free will – like D goes back and confesses after arrest and release 3. Inevitable discovery – THIS EXCEPTION DOES NOT APPLY IN WA |
|
|
Standing for Exclusionary Rule
|
D has standing in premises she legally owns/possesses, has a legal right to stay in, or automatic standing
A. Owns/Right to Possession of Place Searched B. Actual Home – if you are lawfully staying there like an overnight guest C. “Automatic” Standing – Automatic standing for possessory offenses in WA law. Where D is lawfully on premises, while there is a police search, and they use what they found in the search as a key element against D |
|
|
Seizure
|
Reasonable person would not feel free to go
1. Arrest – PC needed – a reasonable PO would be strongly suspicious that the D committed a crime a. Warrant Not Necessary if Public Place or exigent circumstances b. In Home only requires arrest warrant c. Third Person’s Home – requires search warrant for home d. Misdemeanor – warrant required unless committed in PO’s presence or violent misdemeanor or serious traffic offense |
|
|
Effect of Unlawful arrest (seizure)
|
no effect on legitimacy of prosecution. But could lead to suppression of fruits
|
|
|
Investigative Detentions (seizure)
|
PO may conduct temporary detentions where “Reasonable Person Feels Not Free to Leave” if they have reasonable suspicion that crime is afoot based on objective facts
a. Terry Stop Reasonable and Articulable Suspicion – no hunches, must be particularized, no sobriety or drug roadblocks, No pretextual stops. b. When is detention over – when reason for stop is complete. Any prolonged detention is unlawful and evidence that is the fruit of is will be suppressed. c. What may police do? May handcuff, put in police car, perform warrant check – if they have specific reasons for safety. May order car passengers out, or to stay in the car for safety. Passenger in traffic stop can not routinely be asked for ID or questioned w/o some specific reasons |
|
|
Searches
|
PO may only conduct search pursuant to a warrant issued by a neutral and detached magistrate upon finding PC unless the case falls under one of the seven exigent circumstances. In order to be a search and require a warrant there must be a reasonable expectation of privacy. Must have warrant, affidavit (that gives reasons for PC) and inventory
|
|
|
Non-Searches
|
No privacy in areas that can be seen
1. from the sidewalk and open window 2. By a postman or meter reader 3. By Aircraft flying overhead b. Automobiles – there is a lesser expectation of privacy c. Statements made to a third party d. Smells |
|
|
Areas of greater privacy under art. 1 sec. 7 for searches
|
Areas of greater privacy under WA art. 1 sec. 7 that PO cannot search w/o warrant
a. Open fields – PO may not climb fenses or go on prop unless public is normally allowed there b. Curbside Garbage – In WA PO cant go through garbage until comingled with other garb c. Pen Register – log of incoming and outgoing calls d. Bank Records & utility company records e. Car – installation of beepers or GPS |
|
|
Was there a valid warrant
|
Requirements
i) Based on Probable Cause – watch out for staleness or anticipatory searches ii) Neutral/Detached Magistrate – can’t by atty general, cant get paid depending on decision, cant participate in search iii) Precise Description – describe the place to be searched and what to be searched for. Watch for multiple units exception |
|
|
Was affidavit sufficient
|
Warrant based on Probable Cause (reasonable magistrate would be strongly suspicious that a 1)particular thing of evidentiary value 2)is at a particular place, 3) at a particular time
Informant “Two Prongs” i) Confidential informants (Aguilar-Spinelli) – must be a factual basis for the information and a factual basis for reliability either because of a track record or self incriminating, or has facts not normally known ii) Citizen informant – presumptively reliable b. Challenge to a facially valid affidavit i.) There was a False Statement; ii) It was Reckless/Intentional included AND iii) Material to Finding PC. iv) Judge will strike this info and see if remaining info still justified warrant c. Execution i) Knock and Announce – must do so before entering unless exegency ii) Scope – can’t search for a Buick in a bread box iii) Detention of Persons on Premises – may do this while searching, can keep people from coming in as well iv) List of seized items provided |
|
|
Exceptions to the warrant requirement
|
Search Incident to Arrest (probable cause) – validity depends on lawful arrest
i) Must be reasonably contemporaneous with arrest ii) Scope – wingspan of arrestee, where dangerous person arrested in home may do protective sweep of premises if they reasonably suspect armed person present iii) Automobile “Unfettered access” or reasonable basis to believe evidence is in there. Does not include locked containers b. Automobile Exception – need PC to suspect contraband is in vehicle i) Exigency – car must be mobile, if engine gone or on blocks exception doesn’t apply ii) Scope – depends on item, can include trunk and closed and locked containers c. Inventory Search – if impound is justified and regular impound procedures are followed i) Clear criteria to control discretion ii) No Reasonable non-Impound Options iii) Manifest Necessity for Locked Truck/Containers d. Plain View Search i) PO must be Lawfully on premises ii) Items must be Immediately Identifiable – may not move objects for identifying marks e. Consent – must be done by 1st person or 3rd person w/ actual consent – no apparent consent in WA i) Depends on Scope of Consent given and revocation ii) must be Voluntary, Intelligent, Knowing iii) Notified of Right to Refuse – Home – This is unique under WA law iv) If both occupants present and one objects, consent of other will not validate search f. Frisk – in conjunction with a lawful investigative detention. Must be reasonable and articulable fear of officer safety, limited to a pat down of exterior clothing for things that reasonably appear to be weapons i) Removal – may remove items that feel like weapons or from plain feel can immediately be recognized as contraband ii) Where investigative detention involves a car, PO may conduct limited patdown of auto interior in places where weapons might be concealed g. Hot Pursuit Evanescent Evidence/Emergency – may do for hot pursuit – chase scene, or community exigency ( a baby crying behind a closed door h. Schools and Public EE drug tests – Must be reasonable and under routine procedures |
|
|
Confessions - When may they be suppressed
|
A. Fourth amendment taint - confession is the fruit of an illegal detention, or illegally obtained evidence used to question
B. Coerced Confession - Due process violation (coerced so that will is overborne) C. Fifth Amendment Miranda |
|
|
Fifth Amendment and Miranda
|
Failure to give Miranda warnings, the following must be present
1. Custodial Interrogation – not temporary detention. At a police station, unless you go voluntarily. Must be questioning or its equivalent – not spontaneous statements 2. Warnings – Must say they had the right to remain silent, any statements made may be used against them, right to an attorney, if they cannot afford, one will be provided for them. 3. Waiver – knowing, voluntary and intelligent. If refuses to waive, but statements still made, ct will look at totality of circumstances 4. Request for Counsel – if unequivocal or unambiguous request, PO may not renew interrogation on any crimes unless suspect initiates or counsel is present 5. Right to Remain Silent – when invoked, PO must stop questioning about related charges, must not resume a. Police May Interrogate on Unrelated Charge With Fresh Warnings 6. Use of silence at trial – If PO gave D Miranda warnings, Pros. May not use. If PO did not give them, Pros may bring up silence 7. Fruits of illegal Confessions (Obtained in Violation of Miranda) – Can’t be used in case in chief, can be used to impeach D, can use the fruits of confession but not statements. Watch out for prior unmirandized confessions followed immediately by mirandized confessions part of single interrogation – this is not a lawful confession |
|
|
Sixth Amendment Right to Counsel
|
– talking to D w/o attorney after complaint filed regarding that crime and D has not waived right
1. Formally Charged – generally by filing the information and complaint 2. Can’t Question About Charge for Which Attorney (unless waives counsel) but can question about unrelated crime with proper warning |
|
|
48 hour rule for confessions
|
D not brought in front of magistrate in 48 hours, makes confession
|
|
|
Identification Procedure ID may be suppressed if any one of the three categories are present
|
Fourth Amendment Taint – Illegal detention or arrest that leads to ID. Pretrial ID will be suppressed, in court will be suppressed only if a due process violation
B. 6th Am. Right at Post-Complaint Line Up – Right to have counsel present at lineup or showup, but only after suspect formally charged. In court ID only suppressed if due process violation C. Due Process Rights - “Irreparable Misidentification” – No “Unnecessarily Suggestive Procedure” that creates a substantial risk of misidentification. Remedy is suppression of in court ID as well as evidence of pretrial ID, but not if there is independent source for witness memory |
|
|
Bail Hearing
|
Bail can only be denied in capital cases. For others, ct must apply “least restrictive alternative." Conditions can be set to secure presence at trial, prevent violent crime, or prevent interference with justice. No preventative detention. No excessive bail
|
|
|
Gerstein Hearing
|
48 Hours – If arrested w/o warrant or indictment, and constraints on liberty, hearing must happen w/in 48 hours. No right to atty, can base on hearsay and can do by video
|
|
|
Arraignment
|
14 Days – 14 days after filing an information, complaint, or first appearance. Right to counsel, D will enter plea
|
|
|
Speedy Trial Rights
|
60/90 – 60 days after arraignment if D in custody. 90 if out. Remedy is dismissal. If D
requests continuance, length of continuance is added on. Either side may obtain them through good cause, or no prejudice to the opposing party. If arraignment happens after 14 days, you use that 14 day mark as counting the speedy trial days. |
|
|
Right to Counsel
|
may waive and defend self if waiver is knowing and intelligent and the D is competent (has to understand nature of charges and proceedings
1. Ineffective Assistance – below objective measure of competency (e.g. not investigate, not enough time, not prepared). Must also show a reasonable probability that outcome would have been different. If there is a structural problem (such as rule 9 rep, or COI) automatic reversal |
|
|
Guilty Pleas
|
Knowing, Voluntary and Intelligent Waiver
2. Understands Charge, Consequences, and rights waived 3. Represented by Attorney |
|
|
Sentencing
|
1. Right to Counsel
2. Hearsay ok 3. Limit on Increase Sentence After Appeal 4. Most enhancements must be found by jury unless it is based on past criminal history 5. Defendant has right to make a statement |
|
|
Discovery
|
1. Prosecutor’s Duty – Brady – must disclose evidence that might affect guilt – reversible error only if material. Pros. For destruction of evidence only remedy is if PO acted in bad faith
2. Defense’s Duty Role of 5th Amendment – protection only applies to things D writes down or says. Fingerprints, DNA, etc are non-testimonial evidence. D must make P aware of any alibi defense they plan to raise. D may be made to turn over docs, but if the act of doing so incriminates him, P may not say that at trial |
|
|
Trial by Jury
|
for all crim cases, but not certain municipal offenses or juvenile court
1. Right to Jury – 12 in Sup ct unless parties agree to 6. 6 in Dist. Ct. Decision must be unanimous 2. “Fair-Cross-Section” – in pool, not individual jury 3. Racial/Gender-biased Preemptories – cannot do. D has to show pattern of discrimination, if pattern, burden shifts to pros to establish non-disc. Reason. Then judge decides 4. Each side has a limited number of preemptory challenges – where they may dismiss for any reason 5. Each side may dismiss an unlimited amount for cause 6. Prosecutorial misconduct – Prosecutor may not express his personal opinion, use prejudicial remarks, or comment on D not taking the stand or putting on a case |
|
|
Juvenile Court
|
1. All Rights Except Jury
2. Try older juvies, more serious crimes as adult |
|
|
Charging documents
|
Document must give notice of all essential elements of charge/can always
Amend, provided no prejudice to D. lesser-included offenses can be added till closings) |
|
|
Double Jeopardy
|
cant be tried for same crime twice
1. When Attaches – In a bench trial when first witness is sworn in or in a jury trial when jury is sworn in. Applies not to same transaction, but same elements test. 2. Exceptions – in cases of hung jury or manifest necessity (like where a witness has a heart attack), mistrial at D’s request, or retrial after successful appeal |
|
|
Joinder and Severance
|
1. Defendants – Same course of conduct/severance:Prejudice; Confession Implicating Co-defendant
2. Counts – Same course of conduct or class of crime/severance: Prejudice. May sever if there is a huge disparity in the types of crimes or if you want to testify in one and not the other |
