Crim Pro

Question 1

Seizure: General

Answer 1

When an officer, by means of physical contact or show of authority intentionally terminates or restrains the person’s freedom of movement

Test: whether a reasonable person would feel free to disregard the officer.

Question 2

Seizure: Traffic Stops

Answer 2

Need reasonable suspicion to stop car. Checkpoints: don’t need Reasonable Suspicion (RS) if pull over everyone

Question 3

Seizure: Arrest

Answer 3

Probable cause to believe arrested individual has committed a crime

Pretext arrests: irrelevant whether officer stopped person for which Probable Cause (PC) for s/other crime (Equal Protection issues)

Question 4

Seizure: Arrest Warrants

Answer 4

Issued by neutral and detached magistrate based on finding of PC; needs name and offense. Authorizes officers to enter individual’s home, but not T’s home or business and still need search warrant for search.

Can arrest inside dwelling if exigent circumstances or consent to enter.

Question 5

Seizure: Warrantless Arrests

Answer 5

Public place for crime committed in officer’s presence or based on PC that individual committed felony. Illegal arrest doesn’t prevent prosecution, but could result in exclusion of evidence.

Question 6

Seizure: Searches Incident to Arrest

Street, Home, Car, DNA

Answer 6

Searches Incident to Arrest; can search area immediately surrounding the person. (1) street: wingspan, (2) home: immediate arrest area, (3) car: passenger compartment if person still has access to the vehicle.

DNA samples may be collected

Question 7

Seizure: Stop and Frisk

Answer 7

Terry Stop: officer has reasonable suspicion based on articulable facts to believe suspect is or is about to engage in criminal behavior. Can pat down for weapons, but not frisk for evidence.

If initial stop unlawful but officer develops basis for lawful arrest during stop, evidence seized during arrest can be used at trial

If arrest unlawful, evidence seized can’t be used at trial

Question 8

Searches and Reasonable Expectation of Privacy (REP)

Answer 8

Government conduct (physical/non-physical) violates a reasonable expectation of privacy

Reasonable Expectation of Privacy – homes, hotel room, offices, luggage, curtilage; NOT public streets, open fields, garbage cans on street, abandoned property

Ask: Who’s claiming the search?

Question 9

Search Warrant Requirements (3)

Answer 9

(1) Issued by a neutral magistrate
(2) based on PC items sought are fruit, instrumentalities, or evidence of a crime.
(3) must describe property and place to be searched w/particularity.

If warrant is invalid then exclusion of items seized

Wiretapping: specifically ID whose convos, end date, and minimization

Question 10

Search Warrant Exceptions: Exigent Circumstances

Answer 10

“hot pursuit” or “immediate danger” Doesn’t apply if police create exigency

Question 11

Search Warrant Exceptions: Consent

Answer 11

Doesn’t require officer to warn right to refuse; can involve deception. Officers can’t search over objection of present occupant.

Question 12

Search Warrant Exceptions: Automobiles

Answer 12

Can SIA if arrestee w/in reach of passenger compartment; if have PC car contains contraband, then can search parts that might have it, even w/o arrest.

Question 13

Search Warrant Exceptions: Plain View

Answer 13

If legally present, then can seize any item in plain view/smell, even if not named in warrant

Question 14

Search Warrant Exceptions: Evidence Obtained from Administrative Searches

Answer 14

2 kinds: (1) Administrative warrants, (2) warrantless administrative searches to ensure compliance w/various admin regs.

Question 15

Fifth Amendment

Answer 15

No person shall be compelled in any criminal case to be a witness against themselves

Scope: natural persons, testimonial evidence, testimony that would be link in chain leading to prosecution or conviction, if s/one given immunity –> can’t refuse to answer

Statements made by individual: must be made to gov during custodial interrogation (arrested or not otherwise free to leave. If custodial –> Miranda.

Question 16

Miranda Rights

Answer 16

You have the right to remain silent; any statement you make may be used against you in court; you have the right to consult an attorney and have them present during questioning; you have the right to an attorney appointed if you can’t afford one.

Question 17

Miranda Rights: Silence

Answer 17

Must affirmatively say invoking right. After substantial period of time, police can give warnings again and seek to talk to them.

Question 18

Miranda Rights: Counsel

Answer 18

Must invoke affirmatively –> questioning must stop until (i) lawyer is present; or (ii) D affirmatively initiates contact. Police don’t have to say lawyer trying to reach D

Question 19

Miranda Rights: Exceptions and Tactics

Answer 19

Public Safety Exception: don’t have to give Miranda b/f questioning

Tactics: confession must be voluntary, threats inadmissible, can use deceit

Question 20

Fifth Amendment Violations

Answer 20

Involuntary confession: Never admissible. Whether overturn conviction depends on harmless error.
Evidence obtained as result = fruit of the poisonous tree = presumptively inadmissible.

Miranda Violation: Inadmissible in P’s case in chief but can be used to impeach D. Evidence obtained as result of voluntary statement is still admissible.

Question 21

Sixth Amendment

Answer 21

Right to lawyer and trial by jury. Automatically attaches when indictment, info, or other formal charges unless knowingly and intelligently waived. Offense-specific. Applies to felony prosecutions and misdemeanors where jail imposed. All critical stages of prosecution.

Right to jury trial attaches to all serious offenses –> authorized punishment for more than 6 months

Question 22

Identification Procedures and their Admissibility (2 Types)

Answer 22

PHOTO ARRAYS
Neither D or lawyer has right to be present, but police must turn over array to D

LINE-UP
Pre-indictment: D no right to counsel; Post-indictment: D has right to counsel present. If violated, witness must be excluded

ADMISSIBILITY
At trial: If D moves to suppress evidence that witness picked up D out of lineup, court considers whether it was impermissibly suggestive –> yes: testimony excluded

In-court Identification: P must estb by clear and convincing evidence witness would’ve ID D even w/o suggestive lineup.

Question 23

Exclusionary Rule and Fruit of the Poisonous Tree

Answer 23

Rule: Illegally obtained evidence, either physical obtained by illegal search or statement obtained through illegal interrogation, is inadmissible at criminal trial of person whose rights were violated

Applies only at Trial: Evidence obtained in violation of 4A, 5A, or 6A can’t be introduced at trial to prove D’s guilt

Standing: Must be D’s rights, not s/one else’s

Fruit of the Poisonous Tree: Exclusionary rule applies to evidence obtained as result of initial violation

Question 24

Exclusionary Rule Exceptions: Knock and Announce

Answer 24

Officers executing arrest warrant at residence have to knock and announce. If no, then evidence doesn’t have to be suppressed

Question 25

Exclusionary Rule Exceptions: Inevitable Discovery

Answer 25

If evidence would’ve been discovered anyway through lawful means then admissible

Question 26

Exclusionary Rule Exceptions: Independent Source

Answer 26

Relevant evidence discovered on basis of independent source admissible

Question 27

Exclusionary Rule Exceptions: Attenuation in Causal Chain

Answer 27

Intervening events and passage of time can remove taint of unconstitutional conduct

Question 28

Exclusionary Rule Exceptions: Good Faith

Answer 28

Officers rely on (a) existing law later declared unconstitutional; or (B) warrant, while facially valid, later found to be defective;

Can’t rely on warrant if obtained by fraud, obtained reliance on unacceptably bare-bone affidavit, or magistrate wholly abandoned judicial role

Question 29

Fifth Amendment Presentment Clause

Answer 29

all fed felony charges must be initiated by indictment by grand jury unless D waives

Question 30

Grand Jury

Answer 30

Can consider evidence obtained illegally and hearsay; Ds don’t have right to testify or call witnesses; Witnesses no right to counsel w/in grand jury room; held in secret; doesn’t have to be unanimous

Question 31

Competence to Stand Trial

Answer 31

Whether D comprehends nature of proceedings against him and can assist lawyer in defending

If yes then can plead guilty and waive right to trial.

Question 32

Guilty Plea

Answer 32

Waives various trial rights
D must knowingly and intelligently waive

Question 33

Bail

Answer 33

8A forbids excessive bail
Bail available unless D poses flight risk or danger; presumption in favor of bail

Question 34

Right to Speedy Trial

Answer 34

Statute of limitations normally begin to run when crime occurs (end of offense)

Due process (pre-accusation delay) and speed trial clause of 6A (protects Ds against delay btwn time of arrest or indictment and time of trial)

(1) length of delay; (2) reason; (3) whether D asserted right; and (4) risk of prejudice to D

Question 35

Sixth Amendment Confrontation Clause

Answer 35

Crawford
If statement testimonial, then 6A bars admission if declarant unavailable and D had no opportunity to cross-examine

Burton
D’s statements always admissible against D; if co-Ds, then non-testifying co-D’s statements not admissible against other D

D’s right to present witnesses
D has right to testify on own behalf and right to compulsory process to obtain witnesses

Question 36

Duty of Prosecutors

Answer 36

Brady Doctrine
P must turn over all material exculpatory evidence – (1) showing D isn’t guilty; and (2) evidence D can use to impeach credibility of prosecution

Testimony
P may not knowingly present false testimony

Contact
P can’t contact D w/o D’s counsel present

Failure to Testify
P can’t comment on D’s failure to testify or make unfair remarks abt D to jury

Prosecutorial Misconduct
If it has reasonable possibility of affecting verdict then may require mistrial or reversal of conviction

Question 37

Effective Assistance of Counsel

Answer 37

Strickland test:

(1) performance: did counsel’s performance fall below reasonable conduct lawyers might engage in;

(2) There’s a reasonable probability that had counsel performed effectively, result would’ve been different

Case that goes to trial – D must show reasonable probability wouldn’t have been convicted if lawyer did proper job

Guilty plea – D must show wouldn’t have pleaded guilty if lawyer hadn’t given bad advice or performed ineffectively.

Question 38

Eighth Amendment

Answer 38

Length of Prison Sentence
Gov has free reign to authorize virtually any length sentence for virtually any crime: LWOP for crimes committed while juvenile are unconstitutional

Capital Punishment
Victim dies; Can’t be imposed on D’s under 18 when crime committed, Ds w/cognitive impairment, or Ds who are insane at time of execution

Other
Cruel or unusual/degrading punishments: extended to conditions of confinement; have to be convicted of crime for 8A to apply

Question 39

Double Jeopardy

Answer 39

Protections
(1) prosecution for same offense after acquittal;
(2) prosecution for same offense after conviction;
(3) multiple prosecutions or punishments for punishments for same offense

Same Offense
Blockburger test: Ask whether each statutory provision requires proof of element that other doesn’t.

Not double jeopardy for 2 victims, different sovereigns w/jurisdictions can try D separately

Question 40

Attachment

Answer 40

Jury sworn in. When it’s a bench trial then it’s when first witness is sworn in

Question 41

Acquittal

Answer 41

D can’t be re-tried by same jurisdiction for same offense

Question 42

Conviction

Answer 42

If D doesn’t appeal conviction or conviction affirmed, then end; if reversal then can be retried unless reversal based on finding of insufficiency of evidence

Question 43

Mistrial

Answer 43

Two kinds:

(1) Manifest necessity: D can be retried;

(2) No manifest necessity: D can’t be retried by that jurisdiction

Question 44

Apprendi Doctrine

Answer 44

6A prohibits judges from enhancing criminal sentences based on facts other than those decided by jury beyond reasonable doubt, except for prior criminal convictions

Question 45

Exceptions to Search Warrant Requirement (Think ESCAPES)

Answer 45

Exigent circumstances
Search incident to arrest
Consent
Automobiles
Plain view
Evidence obtained from admin searches
Stop and frisk

Question 46

What is an Interrogation?

Answer 46

Interrogation involves official asking questions/engaging in words or conduct police know or should know will elicit response. Doesn’t include volunteered statements or routine booking questions