Criminal Procedure-Mbe

Front 1

4th Amendment

Back 1

Prohibits unreasonable searches and seizures

Front 2

5th Amendment

Back 2

i) privilege against compulsory self-incrimination

ii) prohibits double jeopardy (The act of putting a person through a second trial for an offense for which he or she has already been prosecuted or convicted)

Front 3

6th Amendment

Back 3

i) right to speedy trial
ii) right to public trial
iii) right to trial by jury
iv) right to confront witnesses
v) right to compulsory process for obtaining witnesses in Δ’s favor
vi) right to assistance of counsel in felony cases, and in misdemeanor cases in which imprisonment is imposed

Front 4

8th Amendment

Back 4

Prohibits cruel and unusual punishment

Front 5

Exclusionary Rule

Back 5

Prohibits the introduction of evidence obtained in violation of a Δ’s 4th, 5th, and 6th Amendment rights, at a CRIMINAL trial

Front 6

Limitations of The Exclusionary Rule

Back 6

The Exclusionary Rule is does NOT apply to:

i) Grand Juries: witnesses may be compelled to testify even if the questions are based on evidence from illegal search and seizures.

ii) Civil Proceedings

iii) Internal Agency Rules: the exclusionary rule applies ONLY if there’s a violation of the Constitution or Federal law.

iv) Parole Revocation Proceedings

v) Good Faith Reliance of Police (3 Circumstances):
(1) Case law later changed by another judicial opinion.
(2) Facially valid statute as it then existed, even if the statute was later declared unconstitutional
(3) Defective search warrant

Front 7

Four exceptions to Good Faith Defense based on Defective Search Warrant

Back 7

i) Affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it

ii) Warrant is invalid on its face

iii) Police officer getting the warrant lied to the magistrate

iv) Magistrate has wholly abandoned his judicial role

Front 8

How can Excluded Evidence be used for Impeachment Purposes?

Back 8

i) Voluntary Confessions in Violation of Miranda is admissible to impeach.

ii) Truly involuntary confession is never admissible.

iii) ALL Illegally Seized evidence may be used to impeach a criminal defendant on cross.
(1) Ex: Prosecution had an illegally obtained shirt that the Δ cut holes out of to make pockets to smuggle drugs. Δ took the stand and said he never smuggled drugs with a shirt. Prosecution brought in the shirt.
(2) Illegally obtained evidence is never admissible to impeach a witness other than the Δ.

Front 9

Harmless error test

Back 9

It is the standard for reviewing improperly obtained evidence to admit at trial.

Definition: A conviction can be upheld if the conviction would have resutled despite the improper evidence (govt. carries the burden to show harmless beyond a reasonable doubt)

Front 10

Fruit of the Poisonous Tree

Back 10

Illegally obtained evidence and all evidence obtained from that evidence must be excluded.

Front 11

What are the three ways gov’t CAN break chain between original unlawful police action and piece of evidence--to nullify the fruit of the poisonous tree doctrine?

Back 11

i) Independent Source: Evidence obtained from a source independent of the original illegality.

ii) Intervening Act of Free Will: Δ's will breaks the causal chain (Ex: Δ was illegally arrested and released but then returned to the station house later to confess).

iii) Inevitable Discovery: Police would have discovered the evidence whether or not they had acted constitutionally.

Front 12

What constitutes a seizure of the person?

Back 12

When a reasonable person would believe that he is NOT free to leave (requires a physical application of force or a submission to show of force)

Front 13

To detain for a Stop and Frisk police must have

Back 13

- Stop: Reasonable suspicion supported by articulable facts of criminal activity
- Frisk: reasonable suspicion detainee is armed and dangerous

Front 14

Authority to use roadblocks

Back 14

1. Must stop cars on the basis of some neutral, articulable standard (every third car)
AND
2. Be designed to serve purpose closely related to a particular problem related to autos and their mobility

Front 15

Validity of pretextual stops

Back 15

Valid to stop where traffic law violated even where ultimate motive is to investigate whether some other law violated

Front 16

Public Place Arrest: 4th Amendment Rights

Back 16

Police do not need a warrant to arrest a Δ in a public place.

Front 17

Home Arrests: 4th Amendment Rights

Back 17

Police must have an arrest warrant to do a non-emergency arrest in someone’s own home.

Front 18

Station House Detention: 4th Amendment

Back 18

Police officers must have full probable cause for arrest to bring a suspect to the station house for questioning or fingerprinting.

Front 19

When does a Δ have a 4th Amendment right?

Back 19

1. Was there govt. conduct?

2. Did D have a reasonable expectation of privacy?

3. If so, did police have a valid warrant?

4. No valid warrant - did police make a valid warrantless search/seizure subject to the Good Faith Defense?

Front 20

Government conduct

Back 20

(a) Either the publicly paid police or

(b) Citizens acting at the direction of the public police or

(c) Private security guards/privately paid police is not gov’t conduct UNLESS they’re deputized as officers of the public police w/ the power to arrest.

Front 21

What else is needed besides a reasonable expectation of privacy to claim a 4th Amendment right?

Back 21

It is not enough to have a reasonable expectation of privacy, a Δ must also have standing to object to legality of search/seizure.

Front 22

Automatic Categories of Standing (always has standing)

Back 22

(1) Δ owns or has a right to possession of the place searched, including their own body.

(2) Place searched was in fact the Δ's home, whether or not she owned or had a right to possession of it (Ex: Grandson who lived at Grandparent’s house)

(3) Δ was an overnight guest of the owner of the place searched

Front 23

“Sometimes” Categories of Standing

Back 23

(1) Δ owns the property seized
(2) Δ legitimately present when the item or area was searched

Front 24

Past exam situations dealing with standing (3 examples)

Back 24

(1) Overnight guests—DO have standing

(2) Passengers in cars who don’t claim to own the car OR the property taken out of the car. –Do NOT have standing just because they were present when search took place

(3) Individual (in this case drug dealer) briefly on premises of someone else solely for business purpose of cutting up drugs for sale---does NOT have standing

Front 25

Things Held Out to the Public (No REOP) (9 Examples)

Back 25

(1) Sound of one’s voice
(2) One’s handwriting
(3) Paint on the outside of a car
(4) Smell of one’s luggage and other odors (i.e., drug dogs)
(5) Account records held by bank
(6) Garbage set out on the curb for collection
(7) Automobile’s movement on public roads and arrival at a private residence, even if detection of movement requires a tracking bug
(8) Open Fields Doctrine—anything that can be seen across the open field or by
(9) Fly-over

Front 26

Requirements of a Valid Warrant

Back 26

(1) Issued by a neutral and detached magistrate
(2) Based on probable cause
(3) Particularly describes the place to be searched and the items to be seized

Front 27

Neutral and Detached Magistrate

Back 27

(1) Magistrate must be neutral and detached from business of law enforcement

(2) No good faith defense
available if magistrate is not neutral and detached

(3) Example: Court Clerk issuing warrants for violations of city ordinances is neutral & detached

Front 28

NOT Neutral and Detached Magistrate

Back 28

(a) State attorney general

(b) A Magistrate who doesn’t get paid unless she issues warrants

(c) A Magistrate who comes along in the search

Front 29

Use of informers to establish probable cause - sufficiency established by

Back 29

(a) If affidavit of probable cause is based on information obtained from informers (even if informer is anonymous), its sufficiency is determined by the totality of the circumstances.
(b) Warrant may be based on hearsay

Informer's reliability and/or credibility NOT a prerequisite

Front 30

Identity of informer

Back 30

May remain anonymous

Front 31

A search warrant will be invalid where Δ establishes (3)

Back 31

1. Affidavit included False Statment of officer filing
2. Affiant Intentionally or Recklessly include such statement
AND
3. False statement was Material to finding probable cause

Front 32

Warrant Must Be Precise on Its Face

Back 32

Warrant must state with reasonable precision the place to be searched AND the things to be seized

Front 33

Execution of a Warrant (6)

Back 33

1. By police
2. Without unreasonable delay
3. Must knock and accounce
4. May seize any contraband product of search
5. CANNOT search persons on premises not named in warrant (unless probable cause arises)
6. Implicit authority for limited detention of persons on premises

Front 34

"Knock and Announce" Rule and exception

Back 34

Officers must wait 15-20 seconds after knocking and announcing their presence before entry may be made.

UNLESS:
Iit would be dangerous, futile, or it would inhibit the investigation

Front 35

Exceptions to the warrant requirement (6)

Back 35

1. Search incident to a lawful arrest
2. Automobile exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Hot Pursuit, Evanescent evidence, and other Emergencies

Front 36

Search incident to a lawful arrest

Back 36

i) Lawful arrest
ii) Search must be contemporaneous in time and place with the arrest
iii) Scope is the person and his wingspan (area within Δ’s reach)
iv) For automobiles: Wingspan includes interior of car, compartments BUT NOT the trunk

Front 37

Automobile Exception (Search of Auto without warrant)

Back 37

i) Probable cause it contains contraband (same level as needed to get a search warrant)
ii) PC can arise after the car is stopped but MUST arise BEFORE anything or anyone is searched
iii) Scope of search is entire car, interior, compartments, trunk, and all packages/luggage or other container that could reasonably contain the item for which they had PC to look (i.e., drugs--> search the container; TVs-->can’t search the container).
iv) Containers—can be owned by passenger or driver

Front 38

Plain View Doctrine

Back 38

i) Officer must legitimately be there
AND
ii) Item must be in plain view

Front 39

Authority to Consent

Back 39

Where two or more people have an equal right to the property or premises ANY one of the two can consent to the warrantless search.

Police need not warn you that you have a right not to consent

Front 40

Consent to false announcement of a warrant

Back 40

Negates the consent - no authority to search

Front 41

Scope of search based on consent

Back 41

Limited to those areas to which a reasonable person under the circumstances would believe it extends

Front 42

Scope of search incident to Stop and Frisk

Back 42

Pat down of outer clothing

Front 43

Evanescent Evidence

Back 43

EE is evidence that might go away if police were required to get a warrant (i.e., blood alcohol might go down; scrapings under fingernails--Δ might wash his hands, etc.), thus no warrant required

Front 44

Hot pursuit exception

Back 44

Officers in hot pursuit of a Fleeing Felon may make a warrantless search and seizure (even into a dwelling)

Front 45

Wiretapping & Eavesdropping

Back 45

-Both require a warrant. However, EVERYONE assumes the risk that the person to whom one is speaking is wired or working for the police. (Unrealiable ear exception)

Front 46

When is Miranda warning required (two-part test)?

Back 46

The Miranda warning is only required prior to "custodial interrogation."

1) Δ is held in custody—at the time of interrogation person is not free to leave, and

2) Δ subject to interrogation —More than the asking of questions; it is any conduct where police knew or should’ve known that they could get a damaging statement from Δ.

Front 47

What the Miranda warning says:

Back 47

1. You have the right to remain silent.

2. Anything you say can be used against you in a court of law.

3. You have the right to have an attorney present now and during any future questioning.

4. If you cannot afford an attorney, one will be appointed to you free of charge if you wish.

Front 48

When Miranda is NOT required:

Back 48

i) Spontaneous Statements

ii) Probation Interviews & Routine Traffic Stops (i.e., not custodial)

Front 49

Waiver of Miranda Rights must be:

Back 49

i) Voluntary
ii) Intelligent
iii) Knowing
iv) NOTE: Where Δ says nothing or just shrugs his shoulders, NO WAIVER

Front 50

When does the 5th Amendment Right to Counsel arise?

Back 50

Arises ONLY when Δ asks for attorney after hearing Miranda warning.

-At any time during interrogation, Δ may assert right to terminate the interrogation and request attorney.

- Once asserted, police cannot reinitiate interrogation without presence of the attorney

- Covers any topic that may come up in interrogation, not a specific offense

Front 51

When does the 6th Amendment Right to Counsel attach?

Back 51

A suspect acquires a right to counsel under the Sixth Amendment when a “prosecution is commenced” against him. And this occurs when either of the following
happens: (1) a prosecutor files a complaint against him, or (2) he is indicted by a grand jury.

- Offense specific
- Lawyer needs to be present only if Δ is asked about that lawyer’s case.

Front 52

Three categories of pre-trial identifications:

Back 52

1. Photopack
2. Showup (a one-person lineup)
3. Lineup

Front 53

Two ways to attack pre-trial identifications:

Back 53

1) Denial of Right to Counsel:
-Post-charge lineups and show ups ALWAYS give rise to a right to counsel
- No right to counsel for photographs

2) Denial of Due Process
- Substantial likelihood of misidentification
- Unnecessarily suggestive

Front 54

Remedy if a pre-trial identification is successfully attacked:

Back 54

The prosecution will not be permitted to introduce evidence at trial that the defendant was identified at a showup or lineup;

and

excludes any in-court identifications.

-EXCEPTION: Independent source—where prosecution can show ample opportunity apart from faulty lineup to identify Δ at time of the crime (i.e., victim spent 40 minutes with the Δ at gunpoint)

Front 55

When are bail issues appealeable?

Back 55

Immediately

Front 56

Is it constitutional to detain someone for preventative measures?

Back 56

Yes

Front 57

Are states required by the Constitution to use Grand Juries?

Back 57

No

Front 58

Does a Δ have a right to be present at a Grand Jury Hearing?

Back 58

No. Proceedings are secret;
-Δ has no right to appear or send witnesses.
-No right to silence either if Δ herself is called as witness.

Front 59

In that GJs are secret proceedings, who is allowed to be present?

Back 59

-Jurors
-Prosecutor
-Witness (if any)
-No court reporter

Front 60

May Δ refuse to testify at a GJ?

Back 60

No. She may refuse to answer certain questions, but must testify if called as witness.

Front 61

Do the FR of Evidence apply at GJ hearings?

Back 61

No.

-A grand jury witness may be compelled to testify based on illegally seized piece of evidence

-Hearsay admissible

Front 62

How is a party charged of a crime?

Back 62

Once the grand jury decides there’s probable cause, the prosecutor can issue an indictment, a document specifying the felony charge(s) against a particular defendant.

Front 63

Right to Unbiased Judge

Back 63

i) No financial interest in the outcome
ii) No actual malice toward the Δ (i.e., “next time I see you, you’re getting the max” is not malice)

Front 64

Right to Jury Trial

Back 64

i) Whenever maximum authorized sentence exceeds 6 months = right to jury trial

ii) Up to and including 6 months = no right to jury trial

iii) Sum of sentences for criminal contempt exceeds 6 months = right to jury trial

Front 65

Under what constitutional provision does the prohibition of excessive bail fall under?

Back 65

8th Amendment

Front 66

Jury requirements

Back 66

i) At least six and must be unanimous
-However Sup Court has recognized non-unanimous jury trials
ii) No right to jury of 12
iii) Right to have jury pool reflect cross-section of the community BUT no right to have your own cross-section of the community

Front 67

Must a verdict be unanimous to be upheld?

Back 67

No. The Supreme Court has recognized non-unanimous jury trials (11-1, 10-2 or 9-3) if the respective state law provided, but the court did not specify how low the ratio could constitutionally go.

Front 68

Voir Dire

Back 68

A preliminary examination of a witness or a juror by a judge or counsel.

Front 69

Discrimination in Voir Dire

Back 69

It is unconstitutional for prosecutor or defense to exercise preemptive challenges to exclude perspective jurors on account of their race or gender.

Front 70

Ineffective Assistance of Counsel

Back 70

It is an issue raised in legal malpractice suits and in appeals in criminal cases where a criminal defendant asserts that their criminal conviction occurred because their attorney failed to properly defend the case.

i) Deficient performance by counsel
ii) But for such deficiency the Δ would NOT have been convicted

Front 71

How are plea bargains evaluated?

Back 71

Under Contract theory

Front 72

What is colloquy?

Back 72

It is a highly formalized conversation among judges and lawyers (as opposed to testimony under oath), that takes place when a D enters into a plea bargain.

Front 73

Colloquy requirements

Back 73

(1) Court must address the Δ personally ON THE RECORD about:

(a) Nature of the charge (it’s sufficient that attorney has explained nature of charges) but

(b) Court must state maximum authorized sentence and any mandatory minimum sentences; and

(c) Right of Δ to plead not guilty and demand a trial

(d) Guilty plea is a waiver of trial

(2) If not, Δ is entitled to withdraw plea and plea all over again

Front 74

Four basis for withdrawing guilty plea after sentencing:

Back 74

(1) Plea was involuntary (i.e., mistake)

(2) Lack of jurisdiction

(3) Ineffective assistance of counsel

(4) Failure of prosecution to keep an agreed upon plea bargain

Front 75

Resentencing after successful appeal and reconviction

Back 75

As a general rule, Δ may not be given a harsher sentence on retrial after successful appeal.

Front 76

Facts on the death penalty:

Back 76

a) Any death penalty statute that does not give the Δ a chance to present mitigating facts and circumstances is unconstitutional.

b) There can be no automatic category for imposition of the death penalty.

c) The state may not, by statute, limit mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.

d) Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.

Front 77

Double Jeopardy Clause (5th Amendment):

Back 77

Prohibits state and federal governments from prosecuting individuals for the same crime on more than one occasion, or imposing more than one punishment for a single offense.

Front 78

When does jeopardy attach?

Back 78

i) At Jury trial: when jury is sworn

ii) At Judge trial: when first witness is sworn

iii) Does NOT attach when proceedings are civil (it is possible to try a defendant in criminal court and then try the same defendant again in civil court, for the same event).

Front 79

Retrial -vs- Mistrial

Back 79

In a retrial, a completed trial has been set aside and tried again from scratch as opposed to a mistrial which is terminated prior to its conclusion and then tried again.

Front 80

Exceptions Permitting Retrial - (Do not constitute double jeopardy)

Back 80

i) Jury cannot agree on verdict

ii) Mistrials for manifest necessity

iii) Retrial after successful appeal is not double jeopardy.

iv) When Δ breaches agreed-upon plea bargain
- Plea and sentence is vacated
- Original charges reinstated

Front 81

Manifest Necessity

Back 81

A circumstance (as an incurable pleading defect, the unavailability of an essential witness, juror misconduct, or illness of counsel) which is of such an overwhelming and unforeseeable nature that the conduct of trial or reaching of a fair result is impossible and which necessitates the declaration of a mistrial.

If there is a manifest necessity for the declaration of a mistrial, the defendant may be retried without violation of the prohibition on double jeopardy.

Front 82

Dual Sovereignty Doctrine

Back 82

1) When a Δ's conduct violates both federal and state law, a DJ problem will not arise if he is prosecuted by both the federal and state government.

2) Rationale: the federal government and every state is a separate sovereign, and the DJ Clause is intended to prevent multiple prosecutions of a Δ for the same offense by the same sovereign.

3) Likewise, DJ does not prevent different states from trying the same offense

Front 83

Lesser Included Offenses

Back 83

A lesser crime whose elements are encompassed by a greater crime.

Two or more offenses can be charged together, regardless of whether they are misdemeanors or felonies, provided that the crimes are of a similar character and based on the same act or common plan.

Although the offenses can be charged together, the accused cannot be found guilty of both offenses because they are both parts of the same crime (the lesser offense is part of the greater offense).

Similarly, Jeopardy for lesser offense bars retrial for greater offense UNLESS:
(a) Δ charged with battery
(b) Victim dies; then
(c) Δ can be retried for murder

Front 84

5th Amendment Privilege against Self-Incrimination

Back 84

Guarantees that no person shall be compelled by the government in any criminal case to be a witness (must be testimonial in nature) against himself (it is strictly personal).

Front 85

What does the 5th Amendment Privilege protect against?

Back 85

i) The 5th Amendment protects against compelled testimony (E.g., lie detector; custodial interrogation)

ii) It does NOT protect us from having the state use our bodies in lots of ways to incriminate us (E.g. state can order us to submit hair, urine, blood, or handwriting samples).

Front 86

When does the 5th Amendment Privilege against Self-Incrimination apply?

Back 86

1. Privilege applies not only to criminal cases, but to any proceeding in which a future criminal prosecution may occur.

2. In civil cases where a witness faces no potential criminal charges (i.e., been tried and acquitted, SOL runs out, etc.), he may be forced to testify.

3. Civil cases—party must assert privilege the first time they’re asked a question, or they waive privilege for all subsequent criminal prosecutions

Front 87

What persons are protected by the 5th Amendment Privilege against Self-Incrimination?

Back 87

Only natural -not legal- persons.

i) The 5th Amendment protects against compelled testimony (E.g., lie detector; custodial interrogation)

ii) It does NOT protect us from having the state use our bodies in lots of ways to incriminate us (E.g. state can order us to submit hair, urine, blood, or handwriting samples).

Front 88

Elimination of 5th Amendment Privilege by Waiver

Back 88

If a criminal defendant takes the witness stand, she waives her 5th Amendment privilege as to all legitimate subjects of cross-examination