Crim Pro

Front 1

For a warrant to issue:

Back 1

A detached disinterested magistrate must find that the government has demonstrated by oath or affirmation, a substantial basis for probable cause.

Front 2

For an arrest or search warrant the gov't must show:

Back 2

The government must be able to show objectively, that taking into account the experience and expertise of the officer:

1- For an arrest warrant, it is more probable than not, that a crime has been committed and the person arrested committed that crime, OR

2- For a search warrant, that it is more probable than not, that evidence of a crime or contraband presently is located in a certain place.

They can be based on hearsay.

Front 3

To assert a 4th amend the suspect must:

Back 3

Be able to demonstrate a “reasonable expectation of privacy” (REP) in the area searched or the thing to be seized.

Front 4

Expectation of privacy of an overnight guest or family member:

Back 4

An overnight guest or family member has an expectation of privacy in a dwelling and has standing to contest its search

Front 5

The police entered a cornfield fences in with a closed gate and no trespassing signs. They discovered marijuana plants and a homicide victim’s clothes on a scarecrow in the middle of the field

Back 5

MBE- The Supreme Court held that violation of the property laws was a trespass but did not require suppression of the evidence.

In NY however, D may be able to demonstrate a subjective REP in the open field if D abided by NY property laws in establish an REP.

Front 6

- The police cannot record or listen to conversations by means of an instrument, device or equipment without:

Back 6

1- A court order, or

2- The consent of one party to the conversation.

Front 7

Warrant exceptions

Back 7

BACH’S PIES
o B-BORDER SEARCHES
o A-AUTOMOBILE SEARCHES
o C-CONSENT
o H-HOT PURSUIT
o S-SCHOOL SEARCHES
o P-PLAIN VIEW
o I-searches INCIDENT to arrest
o E-EMERGENCY searches
o S-Proper STOP and SEIZURE

Front 8

To stop an auto there must exist either:

Back 8

1- Probable cause that a traffic violation has occurred, or

2- Reasonable suspicion of criminal activity.

Front 9

When no arrest is made the officers may:

Back 9

Search the passenger compartment if they reasonably believe that the suspect is dangerous and may gain control of weapons.

Front 10

Once probable cause exists that contraband or evidence of a crime is concealed in a vehicle:

Back 10

A warrantless search of the vehicle as well as the trunk and any closed containers that might conceal the contraband is permitted.

Front 11

: X and Y were passengers in D’s car when it was legally stopped by police for going through a red light. The police illegally searched the glove compartment and trunk where they found a shot gun and shells. This evidence was used to charge D, X, and Y with armed robbery. What can D, X, and Y do?

Back 11

Passengers in a vehicle have standing to challenge the legality of a stop of a vehicle but they cannot assert the illegality of a search of the car eventhough they were legitimately present therein because the court no longer recognizes the automatic standing rule.

D’s have standing to challenge the admissions of evidence only if their own constitutional rights were violated.

Here, X and Y could not show that they had any REP in D’s glove compartment or trunk, thus the illegally seized evidence will not be suppressed as to X and Y but it will be suppressed as to D.

In NY, where the criminal inference of possession (that we were all in dominion in control of drugs in a car for example) is the sole reason for charging D with unclaimed drugs or weapons, the NY D has automatic standing to challenge the legality of the search.

Front 12

What must the police have before requesting consent to search?

Back 12

In MBE, even when officers have no suspicion, they may request consent to search.

In NY, the police must first have “founded suspicion” that D is engaged in criminal activity before requesting consent to search.

Front 13

Key factors in considering whether consent is voluntary and valid are:

Back 13

1 The number of police officers present.

2 Whether the consenter was under arrest and handcuffed.

3 The consenter’s past experience with law enforcement.

Front 14

Post arrest strip searches for misdemeanor suspects at a pre-arraignment stage are

Back 14

Impermissible unless a reasonable “individualized suspicion” exists that the arrestee may be hiding a weapon or contraband. Such searches of pre-arraignment felons are permitted however.

Front 15

Factors considered for a warrantless hot pursuit are:

Back 15

P- Clear showing of PROBABLE CAUSE.

A- Consider whether or not the suspect is HARMED.

G- GRAVITY of the offense.

E- Likelihood that suspect will ESCAPE.

Front 16

Search incident to arrest:

Back 16

In MBE, the search may even be made incident to an illegal arrest that was made in good faith.

In NY, to search a closed container, the police must be able to show that exigent circumstances to defined as reasonable belief that the suspect may gain possession of a weapon or be able to destroy evidence located in the container existed at the time of the arrest and that the search was not “significantly divorced” in time or place from the arrest.

Front 17

Related protective sweep or ambush exception:

Back 17

When the police have specific and articulable facts that the arrest area may harbor additional dangerous suspects, then, as an accident to the arrest the police may sweep the entire home but only into those areas where a person could hide.

Front 18

Emergency aid doctrine:

Back 18

The police may constitutionally enter protected areas without a search warrant, provided:
1. The police have reason to believe there is an emergency and an immediate need for police aide to protect life or property and

2. There is a reasonable connection between the emergency and the area searched.

In MBE, the officer’s subjective motive for entering the premises is not relevant if an objective emergency exists.

In NY however, the search may not be primarily motivated by an intent to seize evidence.

Front 19

A D claiming improper police seizure must:

Back 19

MBE: Show either physical force or a submission to a show of authority in which D yields to the police.

NY: D need not show physical force or a submission to authority but rather must show a “significant interruption of liberty of movement.”

Front 20

The 4 types of stops

Back 20

F- STOP AND FRISK

A- A warrantless stop and arrest.

I- common law INQUIRY

R- REQUEST for information

Front 21

Request for information

Back 21

Least intrusive stop

Involves general non-threatening questioning such as asking for identity or the D’s destination.

These questions need only be supported by an articulable reason to justify a stop and need not necessarily be related to criminal activity.

Front 22

Common law inquiry

Back 22

Level 2 (NY Only)

Arises where questioning leads a RPP to believe that he is suspected of wrong-doing or has become the focus of a police investigation.

This stop and questioning may be upheld only if there was “founded suspicion” that criminal activity was afoot.

Front 23

Stop and frisk

Back 23

Level 3

In order to forcibly stop and detain a suspect, the police must have reasonable suspicion to believe that the suspect is engaged in criminal activity.

Reasonable suspicion is acting suspiciously under circumstances that indicate a crime has been committed but the circumstances are less convincing than those giving rise to probable cause.

Front 24

Plain feel doctrine

Back 24

If ever during the MBE frisk for weapons, the officer “immediately recognized” drugs or other contraband by their “plain feel,” then the evidence may be used against the MBE D.

NY has rejected the plain feel doctrine because it does not further the goal of police safety.

Front 25

Warrantless stop and arrest

Back 25

Requires facts and circumstances that would lead an RPP to conclude that a crime has been or is being committed and that the person arrested is the perpetrator.

Front 26

Probable cause to arrest exists where:

Back 26

1. The police observe the commission of the crime, OR
• E.g. speeding, no seat belt, or smoking on the subway.

2. Circumstances exist giving rise to probable cause.

Front 27

To establish probable cause based on hearsay:

Back 27

NY:
Anguilar-Spinelli test based on the reliability of:

1. The informant’s veracity or reliability, AND

2. The source of the informant’s information.

MBE:
The Gates’ totality of the circumstances test, i.e. whether the evidence viewed as a whole provides a substantial basis for the magistrate’s finding of probable cause.

Front 28

After an illegal arrest in the home, if incriminating statements are subsequently obtained:

Back 28

MBE will not suppress the statements because it is the entry into D’s home without a warrant that is illegal, not the probable cause arrest.

NY would suppress these statements because under NY law, if an arrest warrant had been obtained, D’s right to counsel would’ve attached, thus prohibiting any police interrogation on that crime without the presence of counsel.

Front 29

Doctrine of inevitable discovery:

Back 29

Derivative evidence illegally obtained is nevertheless admissible provided the DA can establish by a very high degree of probability that even without the police 4th amendment misconduct, the same evidence inevitably would’ve been uncovered in the normal course of the police investigation.

Front 30

Grand jury immunity:

Back 30

In NY, any witness subpoenaed to appear before the NY Grand Jury is automatically granted full transactional immunity and cannot be prosecuted for any crime for which the witness testifies.

The MBE standard is not as broad and only affords use immunity which simply prohibits the government from directly or derivatively using compelled GJ testimony against a witness.

Front 31

Double Jeopardy protects against two abuses:

Back 31

1. A 2nd prosecution by the same sovereign for the same offense after an acquittal or a conviction, AND

2. Multiple punishments for the same offense by the same sovereign.

Front 32

DJ generally prevents a judge from declaring a mistrial and ordering a new trial without the consent of D except:

Back 32

1. Where D requested it because the jury was exposed to unfair prejudicial evidence.

2. Due to some absolute necessity, e.g. a serious illness or death of a necessary juror or where bribery of one of the juror’s is discovered, but not because the judge has been assigned to another part or goes on vacation.

3. Because the jury was hopelessly deadlocked.

Front 33

NY criminal SOL:

Back 33

o For a class A felony m,r,k,a1, no SOL
o For other felonies, 5 years
o For misdemeanors, 2 years
o For violations, 1 year

Front 34

The criminal SOL is tolled but not for more than 5 years beyond the original SOL:

Back 34

For each day the D is outside NY, or

While the whereabouts or the identity of the D is continuously unknown and unascertainable by due diligence.

Front 35

What does the court consider in a motion to dismiss for violating a speedy trial?

Back 35

P – Prejudice in the form of loss of witnesses
R – Reason for the delay
I – Whether D is Incarcerated during delay
C – Severity of the Charge
E – Extent of the delay

Front 36

What actions will require a dismissal?

Back 36

An unreasonable delay in bringing the indictment without good cause which results in actual prejudice to an MBE D, requires dismissal of the indictment.

NY requires dismissal without any showing of an actual prejudice to D.

Front 37

Under the 6th amendment, a criminal D is entitled to demand a jury trial for:

Back 37

A “serious crime” which the Supreme Court has defined as one with a possible punishment could exceed 6 months.

Front 38

Brady exculpatory material

Back 38

Any admissible evidence materially favorable to the accused (exculpatory or impeachment material), in the prosecutor’s or police custody, must be turned over to defense counsel.

Front 39

There are 2 types of Brady demands:

Back 39

Specific Requests

General Requests for any and all exculpatory material.

NY continues to follow this test but if the NY DA fails to disclose Brady material that was specifically requested, reversal is required if there exists a reasonable possibility that non-disclosure contributed to the guilty verdict.

Front 40

Confrontation Clause

Back 40

The 6th amendment confrontation clause provides the D the right to be present at any stage of the trial where witnesses or evidence is being offered against him or where there are any communications between judge and jury.

Front 41

Right to Counsel

Back 41

The 6th amendment guarantees effective assistance of counsel from the time of D’s arraignment on any charge in which D could be incarcerated through D’s criminal trial.

Front 42

If the trial judge predetermines that no incarceration will be imposed:

Back 42

Then the MBE D is not entitled to counsel.

NY preserves D’s right to insist on counsel eventhough the judge won’t but could impose a jail sentence.

Front 43

Example to note

Back 43

In MBE, there is no right to counsel if the only sentence imposed is a fine. But if a jail term is imposed, eventhough it is immediately suspended and the D placed on probation, D’s right to counsel is violated because D’s possible future violation of probation could reinstate the sentence arising from an uncounseled conviction.

Front 44

In MBE, to obtain a new trial on the ground that D’s counsel was “ineffective,” D must overcome the presumption of effective representation by proving that:

Back 44

1. The lawyer’s performance was deficient, i.e. it fell below “prevailing professional norms.”

2. Counsels errors were so serious as to prejudice D and render the trial results unreliable, the proceedings fundamentally unfair, and a reasonable probability exists that but for counsels errors, D would’ve been acquitted.

Front 45

In NY, to obtain a new trial on the ground that D’s counsel was “ineffective,” D must:

Back 45

NY’s standard is less stringent and more favorable to D. It considers the fairness of the trial as a whole rather than counsels impact on the outcome of the case, i.e. the prejudice.

NY’s meaningful representation standard still requires that D proves that counsel’s actios were truly ineffective but does not require D to prove that but for counsel’s error, the outcome probably would’ve been different.

Front 46

The right to counsel on the 1st criminal appeal is guaranteed:

Back 46

By the due process and equal protection clauses of the 14th amendment and not by the 6th amendment right to counsel.

Front 47

A criminal D’s right to the assistance of counsel attaches:

Back 47

o 1-NY and MBE, when a suspect in custody clearly and unambiguously asks for the assistance of an attorney to invoke the 5th amendment right against self-incrimination (usually in response to Miranda warnings). A suggestion or query as to whether counsel may be desired or may exist is not sufficient.

2a. In MBE, the 6th amendment right to counsel attaches when D appears before a judicial officer and hears the charges against him (usually at the arraignment). D must however, request or affirmatively accept the assistance of counsel for the right to indelibly attach.

2b. In NY, regardless if D has requested counsel, the right automatically attaches under the 6th following the commencement of formal judicial proceedings, i.e. the point at which the gov’t has committed itself to prosecute.

3. In NY, prior to the commencement of formal judicial proceedings when counsel (and not just a family member), notifies the police that D is represented by counsel and may no longer be questioned.

Front 48

Eventhough formal criminal charges are pending and a suspect has counsel, the police may question the suspect without the presence of her counsel on any crime other than that with which she was charged unless:

Back 48

A. The NY or MBE D has requested counsel after being read Miranda warnings on the new charges, OR

B. The NY D is incarcerated and is represented by counsel.

Under NY’s more protected constitutional rights, if the D is in custody and has an attorney, he may not be questioned on any related or unrelated criminal matter and cannot waive Miranda rights without his counsel being present.

If he is not incarcerated, then he may be questioned and may waive his Miranda rights on unrelated criminal matters.

Front 49

- Counsel is not constitutionally required at a line-up at the pre-indictment, pre-arraignment investigatory stage unless in NY:

Back 49

1. The police are aware that D has counsel on this matter and counsel has requested to be present or has asked that her client not be questioned, OR

2. D has counsel or any matter and D requests that counsel be present in which case counsel must be given notice and a reasonable opportunity to appear.

Front 50

Miranda warnings:

Back 50

Anyone subjected to custodial interrogation must be given Miranda warnings regardless of the severity of the crime.

Front 51

Custodial interrogation:

Back 51

Custodial interrogation is questioning initiated by law enforcement officers after a person has been taken into custody, i.e. under circumstances in which an RPP objectively would believe she was not free to go.

Front 52

A confession made in confession of Miranda is nevertheless admissible

Back 52

1. To impeach D if D takes the stand to testify, but not as evidence in chief or to impeach other D witnesses.

2. Under the public safety exception, the police may question a suspect in custody without Miranda warnings about the location of a missing gun or kidnap victim for the protection of the public.

3. If Miranda warnings are not properly given or are inadvertently omitted by police and the MBE D incriminates himself, that 1st confession is not admissible. If the police promptly correct their error and then properly administer Miranda warnings, the MBE D’s 2nd confession may be used against him proved neither was coerced.

Front 53

Cat out of the bag theory:

Back 53

Under the cat out of the bag theory, NY considers confessions close in time to be a single, continuous, chain of events so that the illegality of the first confession taints the 2nd confession and both are suppressed.

Front 54

To determine whether there is a single, continuous chain of events, NY considers:

Back 54

1. The time between the two confessions

2. Whether the same police were present for both confessions

3. Whether there was a change in location

4. Whether prior to the Miranda violation, D had indicated a willingness to speak

Front 55

Something to remember

Back 55

An un-mirandized interrogation is a 5th amendment violation thus prohibiting D’s testimony from being offered at the trial. However the 5th amendment is not violated by introducing evidence derived from D’s voluntary statements. Thus, if the illegal confession leads to another witness’ testimony or to real evidence, this evidence will be admitted unlike a 4th or 6th amendment violation where the derivative evidence rule (fruit of the poisonous tree) is fully applied, a 5th amendment Miranda violation results only in suppression of the statement itself.

Front 56

In MBE, the only way to invoke the derivative rule based on Miranda violations, there must be a finding that:

Back 56

1. A 4th amendment violation led to the confession, OR

2. Actual coercion or improper tactics were used by the police in obtaining the involuntary statement and not merely a failure to administer Miranda.

Front 57

In NY, the criminal D is limited to making one pre-trial omnibus motion within 45 days from D’s arraignment, but the court has discretion in the interest of justice, to allow a late motion. An omnibus motion may request:

Back 57

1. A Sandoval order

2. Suppressoin of evidence based on a 4th, 5th, or 6th amendment violation.

3. The dismissal of a Grand Jury indictment.

4. Suppression of an improper line-up, show-up, or photo identification.

5. A separate trial where multiple D’s have been indicted and one D’s defense is irreconcilably in conflict with the other D.

6. A constitutional challenge to a penal statute.

7. Pre-trial discovery.

Front 58

A NY D now has a right to demand discovery of:

Back 58

A) Any written, tape recorded, or other oral statement of the D or co-D who is to be tried jointly with D.

B) Any written report of a physician or mental exam or any scientific test made by a public servant

C) Any photograph or drawing by a public servant or inventory of property taken from a D or co-D

D) Any exculpatory or impeachment material that could be used to impeach prosecution witnesses.