Crim Pro

Question 1

Crim Pro

What is the general Fourth Amendment idea?

Answer 1

People should be free from unreasonable searches and seizures

Question 2

Crim Pro

What is a seizure?

Answer 2

Any exercise of control by a government agent over a person or thing

Question 3

Crim Pro

When does a seizure of a person occur?

Answer 3

A seizure occurs when, under the totality of the circumstances, a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter

Question 4

Crim Pro

What is an arrest/when does it occur?

Answer 4

An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation

Must be based on probable cause

Probable cause: trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law, based on the totality of the circumstances

Warrant generally not required for arresting in public place

But must generally have a warrant before arresting someone in their home

May only enter home if there is reason to believe the suspect is within it

Must also have full probable cause for arrest before bringing someone to the station for questioning or fingerprinting against the person’s will

Question 5

Crim Pro

What must an arrest be based on?

Answer 5

Probable cause: trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law, based on the totality of the circumstances

Question 6

Crim Pro

When is a warrant required for an arrest?

Answer 6

Warrant generally not required for arresting in a public place

But must generally have a warrant before arresting someone in their home unless you have an exigent circumstance and have reason to believe the suspect is fleeing or destroying evidence or something

Question 7

Crim Pro

What is probable cause?

Answer 7

Probable cause: trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law, based on the totality of the circumstances

Question 8

Crim Pro

What belief do you have to have before you can bring someone to the station for questioning against their will?

Answer 8

Must have full probable cause for arrest before you can bring someone to the station for questioning

Question 9

Crim Pro

What belief do you have to have before you can bring someone to the station to fingerprint them against their will?

Answer 9

Must have full probable cause for arrest before you can bring them in

Question 10

Crim Pro

What is a Terry stop?

Answer 10

Police have authority to briefly detain a person even if they lack probable cause to arrest

If police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (more than a hunch), they may detain a person

If police also have reasonable suspicion that the detainee is armed and dangerous, they may frisk detainee for weapons

Reasonable suspicion: more than just a vague suspicion but less than probable cause, based on the totality of the circumstances

When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability to be sufficient (can include predictive info but doesn’t have to)

A Terry stop is not subject to a specific time limit

Police must act in diligent and reasonable manner in confirming or dispelling their suspicions

Police may ask the person to identify themselves and may arrest the detainee for failure to comply

Can turn into an arrest if during the detention, probable cause for arrest arises

Brief property seizures are valid if based on reasonable suspicion

Question 11

Crim Pro

What are “articulable facts” in terms of Terry stops?

Answer 11

Articulable facts are far less than probable cause but more than a mere hunch - there must be something to go on - add up to reasonable suspicion, then probable cause

Police may briefly detain a person even if they lack probable cause to arrest, so long as they have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts

Question 12

Crim Pro

When can an officer frisk someone for weapons during a Terry stop?

Answer 12

Terry stop is the brief detention when an officer has a reasonable suspicion based on articulable facts of criminal activity

If police also have reasonable suspicion that the detainee is armed and dangerous, they may frisk detainee for weapons

Question 13

Crim Pro

What is “reasonable suspicion”?

Answer 13

More than a vague suspicion but less than probable cause, based on the totality of the circumstances

When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability to be sufficient (can include predictive info but doesn’t have to)

Question 14

Crim Pro

What is the standard for when reasonable suspicion is based on an informant’s tip?

Answer 14

When reasonable suspicion is based on an informant’s tip, must be an indicia of reliability to be sufficient (can include predictive info but doesn’t have to)

Reasonable suspicion = more than vague suspicion but less than probable cause, based on totality of the circumstances

Question 15

Crim Pro

Are Terry stops required to be a certain time limit?

Answer 15

No, they are not subject to a specific time limit

Police must act in a diligent and reasonable manner in confirming or dispelling their suspicions

Question 16

Crim Pro

Can an officer arrest a detainee for not providing their name during a Terry stop?

Answer 16

Yes, police may ask the person to identify themselves and may arrest the detainee for failure to comply

Question 17

Crim Pro

Can a Terry stop turn into an arrest?

Answer 17

Yes, although a Terry stop starts out as a brief detention based on reasonable suspicion supported by articulable facts - if they discover things so that probable cause arises, then they can arrest because arrests are based on probable cause

Question 18

Crim Pro

Are brief property seizures valid during a Terry stop?

Answer 18

Yes, if they are based on a reasonable suspicion, like a normal Terry stop

Question 19

Crim Pro

Can police make an automobile stop?

Answer 19

Yes, if they have at least reasonable suspicion to believe that a law has been violated

Question 20

Crim Pro

During a routine traffic stop, can the police use dogs to sniff around?

Answer 20

Yes, during a routine traffic search, a dog sniff is not a search, as long as the police doesn’t prolong the stop for longer than is necessary to write a ticket, ask a few questions, etc.

If they prolong it, then that would be unreasonable and a search and would not be allowed without a warrant per the Fourth Amendment

A dog “alert” to the presence of drugs can form basis for probable cause for an actual search

Question 21

Crim Pro

Does police’s mistake of law invalidate an automobile stop?

Answer 21

No, generally, police may stop a car if they have at least reasonable suspicion to believe that a law has been violated

Police’s mistake of law doesn’t invalidate that seizure as long as the mistake was reasonable

Question 22

Crim Pro

Who is seized during an automobile stop?

Answer 22

The driver but also any passengers

This means passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop

Question 23

Crim Pro

Are informational roadblocks constitutional?

Answer 23

Yes, if set up for purposes other than seeking incriminating information about the drivers stopped

If special law enforcement needs are involved, police can set up roadblocks to stop cars without individualized suspicion that the driver violated some law

To be valid, roadblock must stop cars on the basis of some neutral, articulable standard (for ex: every car, or every other car - you’re not seeking out certain cars)

And be designed to serve purposes closely related to a particular problem pertaining to cars and their mobility (for ex: drunk driving)

Question 24

Crim Pro

What are the two requirements for a valid informational roadblock?

Answer 24

A roadblock must stop cars on the basis of some neutral, articulable standard; and be designed to serve purpsoes closely related to a particular problem pertaining to cars and their mobility

Question 25

Crim Pro

After stopping a car, can the police order the occupants to get out?

Answer 25

Yes, if the police have lawfully stopped a car, in the interest of officer safety, the officer may order the occupants to get out

And if the officer reasonably believes the detainees are armed, officer may frisk the occupants and search the passenger compartment for weapons, even after the officer has ordered the occupants out

Question 26

Crim Pro

As part of an automobile stop, can the officers frisk the occupants?

Answer 26

Yes, if the officer reasonably believes that the detainees are armed, officer may frisk the occupants and also search the passenger compartment for weapons, even after the officer has ordered the occupants out

Question 27

Crim Pro

As part of an automobile stop, can the officer search the passenger compartment of the car?

Answer 27

Yes, if the officer reasonably believes that the detainees are armed, they can search the passenger compartment for weapons, even if the occupants have already been ordered out of the car

Question 28

Crim Pro

Does an officer’s ulterior motives invalidate an automobile stop?

Answer 28

No, pretext doesn’t matter as long as there was probable cause to believe the driver violated a traffic law - then they can pull you over even if the real reason is they think you were shady or dealing drugs or something - as long as the police believe you violated a traffic law, they can pull you over even if their real motivation is something else

Question 29

Crim Pro

What effect does an invalid arrest have on subsequent criminal prosecution?

Answer 29

An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution

But evidence that is gathered as a result of an unlawful arrest may not be able to be used at trial as fruit of the poisonous tree

Question 30

Crim Pro

If police have a warrant for your arrest, can they enter your home no matter what?

Answer 30

No, they have to have reason to believe the suspect is in the home to be able to go in it, or there needs to be an exigent circumstance - the arrest warrant itself doesn’t give you free reign to go into the suspect’s home

Question 31

Crim Pro

What are the general steps for analyzing search and seizure?

Answer 31

(1) Is there government conduct?
(2) is there standing (a reasonable expectation of privacy)?
(3) Is there a valid warrant?
(4) If not, are there exceptions ot the warrant requirement?

Question 32

Crim Pro

What is governmental conduct per the Fourth Amendment?

Answer 32

The Fourth Amend generally protects only against gov’t conduct

Police officers, other government agents, or private individuals acting at the direction of the public police

Fourth Amend doesn’t protect against searches by privately paid police unless they are deputized as officers of the public police - store security guards, subdivision police, and campus police

Question 33

Crim Pro

What are the two ways in which searches and seizures can implicate an individual’s Fourth Amend rights?

Answer 33

(1) search or seizure by a gov’t agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; OR

(2) physical intrusion by the government into a constitutionally protected area to obtain information

Question 34

Crim Pro

What are the six warrantless search exceptions?

Answer 34

(1) Incident to constitutional arrest

(2) Automobile search

(3) Plain view

(4) Consent

(5) Stop and frisk

(6) Hot pursuit, exigent circumstances, evanescent evidence, emergency aid

Question 35

Crim Pro

What makes a warrant proper?

Answer 35

Based on probable cause, precise on its face, and issued by a neutral and detached magistrate

Question 36

Crim Pro

What makes a warrant properly executed?

Answer 36

Without unreasonable delay; after announcement (unless officers or evidence would be endangered); person or place searched or seized within scope of warrant

Question 37

Crim Pro

What gives a person standing to bring a Fourth Amendment claim?

Answer 37

A person must have their own reasonable expectation of privacy with respect to the place searched or the item seized

Based on the totality of the circumstances

But a person always has a reasonable expectation of privacy any time:

• The person owned or had a right to possession of the place searched
• The place searched was in fact their home, whether or not they owned or had a right to possession of it (for ex: a grandchild living at a grandparent’s home); OR
• The person was an overnight guest of the owner of the place

And sometimes: when the person owns the property seized; if a person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched

Question 38

Crim Pro

What are the three situations where a person pretty much always has a reasonable expectation of privacy?

Answer 38

Right to possession; their home; overnight guest

The person owned or had a right to possession of the place searched

The place searched was in fact their home, whether or not they owned or had a right to possession of it (for ex: a grandchild living at a grandparent’s home); OR

The person was an overnight guest of the owner of the place

Question 39

Crim Pro

Does a person have a reasonable expectation of privacy in things seen across open fields?

Answer 39

No, anything that can be seen across open fields is a thing held out to the public and you have no standing to bring a claim if someone sees something criminal

Question 40

Crim Pro

What are the two core requirements for a facially valid search warrant?

Answer 40

Probable cause and particularity

Probable cause: a warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed

Particularity: warrant must describe with particularity the place to be searched and items to be seized; if it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail

Question 41

Crim Pro

What is the probable cause requirement for a search warrant?

Answer 41

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed

Officers have to submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions

Question 42

Crim Pro

What test is used for an affidavit based on an informer’s tip?

Answer 42

For an affidavit for a warrant based on an informer’s tip, it must meet the totality of the circumstances test

Under this test, the informant’s reliability and credibility or their basis for knowledge are relevant factors in making this determination

The informer’s identity generally need not be revealed

Question 43

Crim Pro

A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:

Answer 43

In short: false statement; intentionally or recklessly; and material

A false statement was included in the affidavit by the affiant (the officer applying for the warrant)

The affiant intentionally or recklessly included the false statement; AND

The false statement was material to the finding of probable cause

Defendant is very rarely successful with these challenges

Question 44

Crim Pro

If there ends up being a finding that a search warrant was not supported by probable cause, may the evidence still be used?

Answer 44

Yes, evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause

Good faith exception applies only if the police obtained a warrant and it is invalid

Does not apply if the police failed to obtain a warrant at all

Question 45

Crim Pro

What is the particularlity requirement for a search warrant?

Answer 45

Warrant must describe with particularity the place to be searched and items to be seized; if it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail

Question 46

Crim Pro

What is the magistrate requirement for search warrants?

Answer 46

The magistrate who issues the warrant must be neutral and detached (for ex: a state attorney general is not neutral)

Question 47

Crim Pro

Who may execute a warrant and how must they do it?

Answer 47

Only police (not private citizens) can execute a warrant, and it must be executed without unreasonable delay

Police must knock and announce their purpose, and wait a reasonable time for admittance (unless the officer has a reasonable suspicion, based on the facts, that announcing would be dangerous or futile or would inhibit the investigation)

Police may not be accompanied by any third parties unless the third parties are present to aid in identifying stolen property

Scope of search is limited to what is reasonably necessary to discover the items described in the warrant

Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not it was specified in the warrant

Violations of the knock and announce rule will NOT result in the suppression of evidence otherwise properly obtained - exclusionary rule doesn’t apply

May detain occupants of the premises during a search, but warrant doesn’t authorize the police to search persons found on the premises who were not named in the warrant

Nor does warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed

Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed

But, if a police officer has reason to believe any person present is armed and dangerous, officer may conduct a Terry pat down for weapons

Question 48

Crim Pro

May police be accompanied by third parties when executing a warrant?

Answer 48

Typically no, unless the third party is there to aid in identifying stolen property

Question 49

Crim Pro

What is the scope of the search when executing a warrant?

Answer 49

Scope of search is limited to what is rsbly necessary to discover the items described in the warrant

Police may seize any contraband, fruits, instrumentalities of crime that they discover, whether or not it was specified in the warrant

Question 50

Crim Pro

Will a violation of the knock and announce rule invoke the exclusionary rule?

Answer 50

No, violations of the knock and announce rule will NOT result in the suppression of evidence otherwise properly obtained - exclusionary rule does not apply here

Question 51

Crim Pro

When executing a warrant, what can officers do with the people on or around the premises?

Answer 51

May detain occupants of the premises during a search, but warrant doesn’t authorize the police to search persons found on the premises who were not named in the warrant

Nor does warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed

Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed

But, if a police officer has reason to believe any person present is armed and dangerous, officer may conduct a Terry pat down for weapons

Question 52

Crim Pro

What is the general line about warrantless searches?

Answer 52

All warrantless searches conducted by law enforcement officers are unconstitutional unless they fit into one of six recognized exceptions to the warrant requirement

Question 53

Crim Pro

What is the search incident to lawful arrest warrant exception?

Answer 53

Incident to a constitutional arrest (one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence

Police may make protective sweep of the area if they believe accomplices may be present

Search must be contemporaneous in time and place with the arrest

But, at least with respect to searches of cars, the term “contemporaneous” doesn’t necessarily mean “simultaneous”

Thus, for ex, police may search the interior of a car after securing a recent occupant of the automobile in a squad car if they have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested

If arrest is unconstitutional, any search incident to that arrest is also unconstitutional

Police may conduct a search of the passenger compartment of a car incident to arrest only if at the time of the search:
- The arrestee is unsecured and still may gain access to the interior of the vehicle; OR
- The police rsbly believe that evidence of the offense for which the person was arrested may be found in the vehicle

In assessing the validity of a search incident to arrest involving things that didn’t exist when Fourth Amend was created, court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legit gov’t interests

Question 54

Crim Pro

During a search incident to lawful arrest, may the police make a protective sweep of the area?

Answer 54

yes if they believe accomplices may be present

Question 55

Crim Pro

For search incident to lawful arrest, what happens if the arrest is unconstitutional?

Answer 55

Any search incident to arrest is also unlawful

Question 56

Crim Pro

When may police conduct a search of the passenger compartment of a car pursuant to an arrest (search incident to arrest - automobile exception)?

Answer 56

Police may conduct a search of the passenger compartment of a car incident to arrest only if at the time of the search:

(1) The arrestee is unsecured and still may gain access to the interior of the vehicle; OR

(2) The police rsbly believe that evidence of the offense for which the person was arrested may be found in the vehicle

Question 57

Crim Pro

How do courts assess the validity of search incident to arrest involving things that didn’t exist when the Fourth Amendment was adopted?

Answer 57

Court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legit gov’t interests

Contemporaneous with an arrest for intoxicated driving, police may administer a warrantless breath test to determine the arrestee’s alcohol levels but may not administer a warrantless blood test

Police may examine the physical attributes of a person’s cell phone upon arrest, but can’t examine the data within the phone without a warrant

Question 58

Crim Pro

As a subset of search incident to arrest, what about search incident to incarceration or impoundment?

Answer 58

At police station, police may make an inventory search of the arrestee’s belongings pursuant to established department procedure

Similarly, police may make an inventory search of an impounded vehicle

Question 59

Crim Pro

What is the automobile exception to the warrant requirement?

Answer 59

If police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might rsbly contain the item for which they had probable cause to search

If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later

However, if vehicle is parked within the curtilage of a suspect’s home, the police may not search the vehicle without a warrant

If the police have probable cause to believe that the vehicle itself is contraband, they may seize it from a public place without a warrant

Search may extend to packages belonging to a passenger

If police have probable cause only to search a container in a vehicle (for ex: luggage recently placed in the trunk), they may search only the container, not other parts of the vehicle

The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped, but the probable cause must arise before anything or anyone is searched

Question 60

Crim Pro

What is the difference between an automobile search incident to arrest exception, the automobile exception, and the stop and frisk automobile exception to the warrant requirement?

Answer 60

So the search incident to arrest revolves around the person, and the search ability arises only after there was probable cause to arrest a person and that person was arrested - then you can search - but you can only search the car in two situations: if the person is unsecured, you can search the passenger compartment; or if you have reasonable belief that you will find evidence of the crime for which the person was arrested in the car, you can search the passenger compartment - and this search incident to arrest is limited to the passenger compartment no matter what

In contrast, with the automobile exception, it’s the car that the search revolves around - the police have probable cause to believe the car itself contains evidence of criminal activity - so you have to have probable cause for a certain crime, but then you can search the whole car, not just the passenger compartment - and it technically doesn’t matter if you arrest anyone - they need probable cause of evidence of a crime being in the car, and then the search is fine, and it doesn’t matter if you ultimately arrest anyone - as long as you had that PC to search the car, the search is fine

And with stop and frisk, if a vehicle is properly stopped for a traffic violation and the officer rsbly believes that a driver or pasenger may be armed and dangerous, the police may:

(1) conduct a frisk of the suspected person, and

(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed

Question 61

Crim Pro

What is the plain view exception to the warrant requirement?

Answer 61

The police may make a warrantless seizure when they:

(1) are legitimately on the premises;

(2) discover evidence, fruits or instrumentalities of a crime, or contraband;

(3) see such evidence in plain view; AND

(4) have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or a frauit or instrumentality of crime

Question 62

Crim Pro

What is the consent exception to the warrant requirement?

Answer 62

A warrantless search is valid if the police have voluntary consent

Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent

Scope of search may be limited by scope of the consent, but generally extends to all areas to which a rsble person under the circumstances would believe it extends

If police come to your house saying they have a warrant, and then ask if they can look around, and you say yes - that is not consent - there can never be proper consent when they say they have a warrant

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants

However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant

If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal, the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent

Question 63

Crim Pro

For there to be valid consent in permitting a warrantless search, does the consenter need to know that they are not required to consent?

Answer 63

No, knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent

Question 64

Crim Pro

What is the procedure for co-occupants consenting to a search, even if a defendant doesn’t want them to?

Answer 64

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants

However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant

If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal, the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent

And be careful to check if the co-occupant has the rsbly apparent authority to consent to a certain part of the house - for ex, if the person always kept their door locked and the consentor can’t really go in there, then they don’t actually have authority to consent to a search of that room

Question 65

Crim Pro

What is the stop and frisk exception to the warrant requirement?

Answer 65

A Terry stop is a brief detention for the purpose of investigating suspicious conduct

A Terry frisk is a pat down of the outer clothing and body to check for weapons

A police officer may stop a person without probable cause for arrest if they have a rsble articulable suspicion of criminal activity

Officer may require the detainee to state their name, and if the officer also rsbly believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk

Seeing something suspicious for criminal activity justifies the stop (rsble articulable suspicion); a frisk will only be justified if the officer rsbly thinks that the suspect has a weapon

During a pat down, an officer may reach into the suspect’s clothing and seize any item that the officer rsbly believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence

So you can only frisk if you have reason to believe they are armed, but once you’re frisking, if you plain feel contraband, you can take that

If probable cause arises during an investigatory stop, the detention can become an arrest and the officer can then conduct a full search incident to that arrest

If a vehicle is properly stopped for a traffic violation and the officer rsbly believes that a driver or pasenger may be armed and dangerous, the police may:

(1) conduct a frisk of the suspected person, and

(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed

Question 66

Crim Pro

What is the automobile stop and frisk exception?

Answer 66

If a vehicle is properly stopped for a traffic violation and the officer rsbly believes that a driver or pasenger may be armed and dangerous, the police may:

(1) conduct a frisk of the suspected person, and

(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed

Question 67

Crim Pro

What is the evanescent evidence exception to the warrant requirement?

Answer 67

Evanescent evidence is evidence that might disappear quickly if the poilce took the time to get a warrant

Ex: police can scrape under a suspect’s fingernails without getting a warrant because if he waited until he had a warrant, the suspect could have washed his hands and gotten rid of the evidence

Question 68

Crim Pro

What is the hot pursuit exception to the warrant requirement?

Answer 68

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling

However, if fleeing person is a misdemeanor suspect, their flight doesn’t always justify warrantless entry into a home

Officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies warrantless entry

Rule of thumb: if police are not within 15 minutes of the fleeing felon, it is not hot pursuit that falls under the exception

If police are truly in hot pursuit of a fleeing felon, they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible

Question 69

Crim Pro

What is the emergency aid/community caretaker exception to the warrant requirement?

Answer 69

Police may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public

However, emergency aid exception doens’t permit an officer to conduct a warrantless search of a person’s home

Question 70

Crim Pro

Which of the warrant exceptions do you need probable cause for?

Answer 70

Search incident to lawful arrest (need PC for arrest) and the automobile exception

Question 71

Crim Pro

What standard is needed for public school officials to search public school students or their possessions?

Answer 71

Only reasonable grounds for the search are necessary - not a warrant or probable cause

A school search will be held to be reasonable only if:

(1) it offers a moderate chance of finding evidence of wrongdoing

(2) the measures adopted to carry out the search are rsbly related to the objectives of the search; AND

(3) the search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 72

Crim Pro

A valid warrant authorizing a wiretap may be issued if:

Answer 72

(1) there is a showing of probable cause,

(2) the suspected persons involved in the conversations to be overheard are named,

(3) the warrant describes with particularity the conversations that can be overheard,

(4) the wiretap is limited to a short period of time,

(5) the wiretap is terminated when the desired information has been obtained, AND

(6) return is made to the court, showing what conversations have been intercepted

Question 73

Crim Pro

What are the two exceptions to the privacy expectations in wiretapping?

Answer 73

The unreliable ear: speaker assumes risk that the other person to whom they are speaking consents to gov’t monitoring or is an informer

Uninvited ear: speaker has no Fourth Amend claim if they make no attempt to keep conversation private

Question 74

Crim Pro

If an involuntary confession in violation of Sixth Amend is admitted into evidence, what happens?

Answer 74

The harmless error test applies - means the conviction need not be overturned if there is other overwhelming evidence of guilt

Also while not admissible, can be used to impeach defendant’s contrary trial testimony

Question 75

Crim Pro

How is the voluntariness of a Sixth Amend self-incriminating statement determined?

Answer 75

Based on the totality of the circumstances

Question 76

Crim Pro

When does the Sixth Amend right to counsel attach?

Answer 76

All critical stages of a prosecution after judicial proceedings have begun

Prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant waived their right to counsel

Question 77

Crim Pro

What right to counsel does an arrestee who hasn’t been charged yet have?

Answer 77

Fifth Amend right to counsel

Sixth Amend comes after the defendant is charged

Question 78

Crim Pro

Is the Sixth Amend right to counsel offense specific?

Answer 78

Yes, offense specific. So even though a defendant’s Sixth Amend rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amend right to counsel

But interrogation might violate the defendant’s Fifth Amend right to counsel under Miranda

Two offenses will be considered different if each requires proof of an additional element that the other crime does not require

Question 79

Crim Pro

How can the Sixth Amend right to counsel be waived?

Answer 79

Waiver must be knowing and voluntary

Doesn’t require presence of counsel - at least if counsel has not actually been requested by the defendant but was appointed by the court

Question 80

Crim Pro

What are the remedies to a Sixth Amend violation?

Answer 80

At nontrial proceedings, the harmless error rule applies

But if defendant was entitled to a lawyer at trial, the failure to provide counsel results in an automatic reversal of the conviction

Question 81

Crim Pro

When are Miranda warnings required?

Answer 81

When a suspect is in custodial interrogation, must be given prior to interrogation

Required only if the detainee knows that they are being interrogated by a gov’t agent

When it’s a civilian or informant working for the police, may need to be given - if detainee knows of their connection with police, may need to be given

There needs to be custody which is a two-step process:

First step requires the court to determine whether a rsble person under the circumstances would feel that they were free to terminate the interrogtation and leave

If met, next step considers whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda

The more a setting resembles a traditional arrest, the more likely the Court will consider it to be custody and require Miranda

Interrogation requirement - includes any words or conduct by the police that they should konw would likely elicit an incriminating response from the detainee

So Miranda warnings are not required before spontaneous statements are made by a detainee

Question 82

Crim Pro

What needs to be included in a Miranda warning?

Answer 82

Some version of:

Person has the right to remain silent

Anything the person says can be sued against them in court

The person has the right to presence of an attorney

If the person cannot afford an attorney, one will be appointed for them if they so desire

Question 83

Crim Pro

What is the test for determining custody to see if Miranda warnings are needed?

Answer 83

In short: whether they feel free to leave; inherently coercive pressures

First step requires the court to determine whether a rsble person under the circumstances would feel that they were free to terminate the interrogtation and leave

If met, next step considers whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda

Question 84

Crim Pro

What is the interrogation requirement for Miranda?

Answer 84

Includes any words or conduct by the police that they should konw would likely elicit an incriminating response from the detainee

Question 85

Crim Pro

What are a detainee’s options are receiving Miranda warnings?

Answer 85

Do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney

Do nothing: if detainee doesn’t respond, Court won’t presume a waiver but also won’t presume a right to remain silent - police may continue to question

Waive rights: to be valid, gov’t must show by a preponderance of the evidence that the waiver was knowing and voluntary based on totality of the circumstances

Asserting right to remain silent: must be explicit, unambiguous, and unequivocal; police must scrupulously honor this request; but - police may be able to re-question detainee about a different crime after a break if fresh warnings are administered

Asserting right to counsel: if detainee unambiguously indicates they wish to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: (1) then waives their right to counsel or (2) is released from the custodial interrogation back to their normal life and 14 days have passed since release; request must be specific; allowing detainee to consult with counsel and then resuming interrogation after counsel has left generally doesn’t satisfy right to counsel

Question 86

Crim Pro

If a detainee says nothing after receiving Miranda warnings, what can police do?

Answer 86

Police may continue questioning

This is neither a waiver nor an assertion of their right to remain silent

Question 87

Crim Pro

How do you waive your Miranda rights?

Answer 87

Must be knowing and voluntary based on the totality of the circumstances

If you receive warnings and then choose to answer questions, that’s probably a sufficient waiver

Question 88

Crim Pro

How do you assert your right to remain silent after receiving Miranda warnings?

Answer 88

Must be explicit, unambiguous, and unequivocal; police must scrupulously honor this request

But - police may be able to re-question detainee about a different crime after a break if fresh warnings are administered

Question 89

Crim Pro

How do you assert your Fifth Amend right to counsel?

Answer 89

If detainee unambiguously indicates they wish to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: (1) then waives their right to counsel or (2) is released from the custodial interrogation back to their normal life and 14 days have passed since release

Request must be specific

Allowing detainee to consult with counsel and then resuming interrogation after counsel has left generally doesn’t satisfy right to counsel

Question 90

Crim Pro

What happens with evidence obtained in violation of Miranda?

Answer 90

Generally, evidence obtained in violation of Miranda is inadmissible at trial under the exclusionary rule

But may be used to impeach the defendant’s trial testimony, like with evidence obtained in violation of Sixth Amend

Subsequent confession: if police obtain a confession from a detainee without giving them Miranda warnings, and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the nature of the questioning was intentional - but a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and failure to give Miranda warnings seemed inadvertent

Nontestimonial fruits: if police don’t give Miranda warnings and during interrogation, detainee gives the police information that leads to nontestimonial evidence, evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence probably will not be suppressed

Question 91

Crim Pro

What happens with a subsequent confession obtained in violation of Miranda?

Answer 91

If police obtain a confession from a detainee without giving them Miranda warnings, and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the nature of the questioning was intentional

But a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and failure to give Miranda warnings seemed inadvertent

Question 92

Crim Pro

What happens with nontestimonial evidence found as a result of a non-Mirandized detainee’s interrogation?

Answer 92

If police don’t give Miranda warnings and during interrogation, detainee gives the police information that leads to nontestimonial evidence, evidence will be suppressed if the failure was purposeful

But if the failure was not purposeful, the evidence probably will not be suppressed

Question 93

Crim Pro

What is the public safety exception for Miranda warnings?

Answer 93

Interrogation without Miranda warnings is allowed when it is rsbly prompted by a concern for public safety

Ex: locating a hidden gun that could cause injury to innocent people

Question 94

Crim Pro

What is the Sixth Amend right regarding identifications?

Answer 94

Suspect has right to presence of an attorney at any post-charge lineup or show up

Accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints

Question 95

Crim Pro

When can a defendant attack an identification as denying due process?

Answer 95

If the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification

Question 96

Crim Pro

Can a suspect refuse to participate in a lineup on Fifth Amendment grounds?

Answer 96

No, a lineup doesn’t involve compulsion to give “testimonial” evidence, so a suspect’s Fifth Amend right against compelled self-incrimination does not apply

Question 97

Crim Pro

What is the remedy for unconstitutional identifications?

Answer 97

Exclusion of the in-court identification

But a witness may make an in-court identification even if other identifications were unconstitutional if it comes from an independent source

Ex: opportunity to observe at the time of the crime

Admissibility of ID evidence determined at suppresssion hearing - gov’t bears burden of proving that: (1) counsel was present; (2) the accused waived counsel; or (3) there is an independent source for the in-court ID; D must prove an alleged due process violation

Question 98

Crim Pro

What is the exclusionary rule?

Answer 98

Prohibits introduction of evidence obtained in violation of D’s Fourth, Fifth, and Sixth Amend rights

Unconstitutionally obtained evidence is inadmissible at trial, and all fruit of the poisonous tree must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct

Exceptions to fruit of the poisonous tree doctrine:

• The fruits derived from statements obtained in violation of Miranda
• Evidence obtained from a source independent of the original illegality
• Evidence for which the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the causal link between the police misconduct and the evidence is broken (attenuation)
• Attenuation includes intervening acts of free will on the part of the defendant
• Inevitable discovery - prosecution can show that the police would have disocvered the evidence whether or not the police acted unconstitutionally
• Violations of the knock and announce rule

Rule doesn’t apply when the police arrest someone erroneously but in good faith thinking that they were acting pursuant to a valid arrest warrant, search warrant, or law

Four exceptions to good faith reliance on a defective warrant:

(1) affidavit underlying that warrant is so lacking in probable cause that no rsble police officer would have relied on it

(2) affidavit underlying the warrant is so lacking in particularity that no rsble officer would have relied on it

(3) the police officer or prosecutor lied to or misled the magistrate when seeking the warrant

(4) the magistrate is biased and therefore has wholly abandoned their neutrality

Question 99

Crim Pro

What are the exceptions to the fruit of the poisonous tree doctrine?

Answer 99

Fruits derived from statements in violation of Miranda

Evidence obtained from independent source

Attenuation: causal link between police misconduct and evidence is broken

Defendant’s intervening act of free will

Inevitable discovery

Violations of knock and announce rule

Question 100

Crim Pro

Does the exclusionary rule apply to GJ proceedings?

Answer 100

No, doesn’t apply to grand jury proceedings unless evidence was obtained in violation of fed wiretapping statute

Also doesn’t apply to parole revocation proceedings, civil proceedings, or where evidence was obtained contrary only to state or agency laws

Question 101

Crim Pro

Does the exclusionary rule apply to arrests made in good faith?

Answer 101

Rule doesn’t apply when the police arrest someone erroneously but in good faith thinking that they were acting pursuant to a valid arrest warrant, search warrant, or law

Four exceptions to good faith reliance on a defective warrant:

(1) affidavit underlying that warrant is so lacking in probable cause that no rsble police officer would have relied on it

(2) affidavit underlying the warrant is so lacking in particularity that no rsble officer would have relied on it

(3) the police officer or prosecutor lied to or misled the magistrate when seeking the warrant

(4) the magistrate is biased and therefore has wholly abandoned their neutrality

Question 102

Crim Pro

What are the four exceptions to the good faith reliance on a defective warrant?

Answer 102

Four exceptions to good faith reliance on a defective warrant:

(1) affidavit underlying that warrant is so lacking in probable cause that no rsble police officer would have relied on it

(2) affidavit underlying the warrant is so lacking in particularity that no rsble officer would have relied on it

(3) the police officer or prosecutor lied to or misled the magistrate when seeking the warrant

(4) the magistrate is biased and therefore has wholly abandoned their neutrality

Question 103

Crim Pro

What illegally obtained evidence may be used to impeach the defendant?

Answer 103

If the defendant takes the stand at trial, an otherwise voluntary confession taken in violation of Miranda is admissible for impeachment, and evidence obtained from an illegal search may be used by the prosecution to impeach the defendants’, but not others’, statements

Question 104

Crim Pro

What is the harmless error test for illegal evidence admitted at trial?

Answer 104

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the gov’t can show beyond rsble doubt that the error was harmless

Conviction will be upheld if it would have resulted despite the improper evidence

Question 105

Crim Pro

When must a preliminary hearing be held?

Answer 105

If probable cause for arrest has not already been determined (by warrant or GJ indictment) and there are significant constraints on an arrestee’s liberty, a preliminary hearing to determine probable cause must be held within a rsble time

Question 106

Crim Pro

What is generally the only defect sufficient to quash a grand jury indictment?

Answer 106

Exclusion of minorities

Question 107

Crim Pro

What are the three main differences between grand jury proceedings and criminal trials?

Answer 107

Defendant (GJ witness) has no right to have counsel present during their GJ testimony

GJ may consider evidence that would be excluded at the criminal trial

Defendant (GJ witness) must appear if called, although they can refuse to answer specific questions on the grounds that they may incriminate them

Question 108

Crim Pro

What goes into determining if a defendant’s Sixth Amendment right to a speedy trial has been violated?

Answer 108

Made by an evaluation based on the totality of the circumstances. Factors considered are the length of delay, reason for delay, whether D asserted their right, and prejudice to the D (LRAP)

Remedy for violation is dismissal with prejudice

Right to speedy trial doesn’t attach until D has been arrested or charged

Question 109

Crim Pro

What is the remedy for a speedy trial violation?

Answer 109

Dismissal with prejudice

Question 110

Crim Pro

When does the right to a speedy trial attach?

Answer 110

Doesn’t attach until the D has been arrested or charged

Question 111

Crim Pro

What evidence must the government disclose to the defendant?

Answer 111

Gov’t has duty to disclose material, exculpatory evidence to the defendant

Failure to disclose violates the DPC and is grounds for reversing conviction if D can prove that:

(1) evidence is favorable to the D because it either impeaches or is exculpatory; AND

(2) prejudice has resulted - there is a rsble probability that the result of the case would have been different if the undisclosed evidence had been presented at trial

Question 112

Crim Pro

What must the D prove to reverse a conviction after prosecution fails to disclose evidence?

Answer 112

(1) evidence is favorable to the D because it either impeaches or is exculpatory; AND

(2) prejudice has resulted - there is a rsble probability that the result of the case would have been different if the undisclosed evidence had been presented at trial

Question 113

Crim Pro

What is the procedure for using an alibi and insanity defense?

Answer 113

If D is going to use an alibi or insanity defense, they must notify the prosecution

If an alibi is to be used, the D must give the prosecution a list of their witnesses

Prosecution must give D a list of the witnesses it will use to rebut the defense

Prosecutor may not comment at trial on the D’s failure to produce a witness named as supporting the alibi or on failure to present the alibi itself

Question 114

Crim Pro

When is a defendant incompetent to stand trial?

Answer 114

If they either (1) lack a rational as well as factual understanding of the charges and proceedings, or (2) lack sufficient present ability to consult with their lawyer with a rsble degree of understanding

The state may place on the D the burden of proving incompetency by a preponderance of the evidence, but requiring the D to show incompetency by “clear and convincing” evidence is unconstitutional

Question 115

Crim Pro

When is a D’s due process violated with judges?

Answer 115

If the judge has actual malice against the defendant or has financial interest in having the trial result in a guilty verdict

Impermissible bias also is present when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the D’s case

Question 116

Crim Pro

When is there a right to jury trial?

Answer 116

No constitutional right to jury trial for petty offenses, but only for serious offenses

Offense is serious if imprisonment for more than 6 months is authorized

No jury trial right with juvenile delinquency proceedings or civil contempt proceedings

Question 117

Crim Pro

An equal protection-based attack on peremptory strikes involves three steps:

Answer 117

(1) the D must show facts or circumstances that raise an inference that the exclusion was based on race or gender,

(2) upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike

(3) the judge then determines whether the prosecutor’s explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination

If the judge believes the prosecutor was sincere, the strike may be upheld

Question 118

Crim Pro

What is the standard for excluding a juror for cause?

Answer 118

Juror should be excluded for cause if juror’s views would prevent or substantially impair the performance of their duties in accordance w their instructions and oath

For death penalty cases, a state may not automatically exclude all those who are opposed to the death penalty (must see if that would interfere with their ability to do their juror job)

And any juror who automatically would give the death penalty upon a guilty verdict must be excluded because they can’t perform their job as juror

Question 119

Crim Pro

How can someone proceed pro se?

Answer 119

If, in the judgment of the judge, their wavier is knowing and intelligent and, based on the trial judge’s consideration of the defendant’s emotional and psychological state, the defendant is competent to proceed pro se

Question 120

Crim Pro

What Amendment contains right to effective counsel?

Answer 120

Sixth Amendment provides right to effective counsel

Question 121

Crim Pro

What must an ineffective assistance claimant show?

Answer 121

Effective assistance of counsel is generally presumed

An ineffective assistance claimant must show:

(1) deficient performance by counsel; AND

(2) but for the deficiency, the result of the proceeding would have been different

Must point out specific deficiencies and can’t base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel

Trial tactics and failure to raise a constitutional defense that is later invalidated are not ineffective assistance

Question 122

Crim Pro

What must a claimant make out in a Sixth Amendment ineffective assistance claim in a plea bargain case?

Answer 122

D must show deficient performance and a rsble possibliity that the outcome of the plea process would have been different with competent advice

An atty’s failure to notify a D of a plea offer can constitute deficient performance if the D can show that:

(1) had the plea agreement been communicated, the D likely would have accepted; and

(2) the plea likely would have been entered without the prosecutor’s canceling it

Fact that D subsequently has a fair trial after turning down a plea offer does not prevent the ineffective assistance claim

Question 123

Crim Pro

What amendment grants to a D in a crim prosecution the right to confront adverse witnesses?

Answer 123

Sixth Amendment

Question 124

Crim Pro

How can a co-defendant’s confession be admitted in accordance with the right to confrontation?

Answer 124

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the D’s own confession, which is admitted

However, such a statement may be admitted if:

(1) all portions referring to the other D can be eliminated;

(2) confessing D takes the stand and subjects themselves to cross; or

(3) confession of the nontestifying D is being used to rebut the D’s claim that their confession was obtained coercively

Question 125

Crim Pro

Under the Confrontation Clause, prior testimonial evidence may not be admitted unless:

Answer 125

(1) the declarant is unavailable, and

(2) the D had an opportunity to cross-examine the declarant at the time the statement was made

Question 126

Crim Pro

What is testimonial evidence per the Confrontation Clause?

Answer 126

At a minimum, statements from a preliminary hearing, GJ hearing, former trial, or police interrogation conducted to establish or prove past acts

However, statements from police interrogations intended to aid the police in responding to an ongoing emergency are not testimonial

If results of forensic lab testing are offered for proof of the matter asserted, they are testimonial in nature and inadmissible unless the person who did the testing is made available for cross-examination

But there is no Confrontation Clause issue when the lab test results are not offered to prove the validity of the test results (just to say that they matched another set of results, not to say that they tested positive for cocaine or something)

Question 127

Crim Pro

What must the judge determine before allowing the D to take a plea deal?

Answer 127

Must determine that the plea is voluntary and intelligent

Must be done by addressing the D personally in open court on the record

Judge must be sure that the D knows and understands things such as:

(1) the nature of the charge to which the plea is offered and the crucial elements of the crime charged

(2) the maximum possible penalty and any mandatory minimum; and

(3) that the D has a right to not plead guilty and that if they do plead guilty, they waive the right to trial

Question 128

Crim Pro

What are the main four reasons to set aside a guilty plea?

Answer 128

Pleas that are seen as an intelligent choice among D’s alternatives are immune from collateral attack

But a plea can be set aside for:

(1) involuntariness (failure to meet standards for taking a plea),

(2) lack of jurisdiction,

(3) ineffective assistance of counsel, or

(4) failure to keep the plea bargain

Question 129

Crim Pro

Does the judge have to accept the plea bargain that the prosecution and defense have agreed to?

Answer 129

No, a plea bargain will be enforced against the prosecutor and the D, but not against the judge, who does not have to accept the plea

Question 130

Crim Pro

What are the collateral effects of guilty pelas?

Answer 130

A guilty plea conviction may be used as a conviction in other proceedings when relevant (like sentencing enhancements)

But a guilty plea neither admits the legality of incriminating evidence nor waives Fouth Amend claims in a subsequent civil damages action

Question 131

Crim Pro

Does a D have a right to counsel during sentencing?

Answer 131

Yes

But does not have a right to confrontation or cross-examination

Question 132

Crim Pro

What amendment concerns double jeopardy?

Answer 132

Fifth Amendment - person may not be retried for the same offense once jeopardy has attached

Question 133

Crim Pro

When does jeopardy attach in jury and bench trials?

Answer 133

Attaches at the empaneling and swearing in of the jury

In bench trials jeopardy attaches when the first witness is sworn

Question 134

Crim Pro

What are some situations that permit retrial of a D even if jeopardy has attached?

Answer 134

Hung jury

Manifest necessity to abort original trial

Successful appeal - but D may not be tried for a greater offense (if they were convicted of manslaughter at first trial, highest charge at new trial is manslaughter)

Breaches of plea bargains

When D elects to have multiple offenses tried separately

Question 135

Crim Pro

What makes two crimes the same offense for double jeopardy?

Answer 135

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not erquire, even though some of the same facts may be necessary to prove both crimes

Question 136

Crim Pro

Can there be multiple punishments even if two crimes constitute same offense under double jeopardy test?

Answer 136

Multiple punishments are permissible if there was a legislative intent to have the cumulative punishments

Ex: D can be sentenced both for robbery and using a weapon during the commission of a crime if statutes so provide

Question 137

Crim Pro

How do separate sovereigns come into play with double jeopardy?

Answer 137

A person may be tried for the same conduct by both the state and fed gov’t’s or by two states, but not by a state and the state’s municipalities

Question 138

Crim Pro

What is the Fifth Amend privilege against self-incrimination?

Answer 138

compelled testimonial evidence is privileged

Can be asserted by any person in any type of case

Privilege is personal and so may be asserted by a D, witness, or party only if the answer to the question might tend to incriminate them

Person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them

Criminal D has right not to take the witness stand at trial and not to be asked to do so

Other witnesses have to take the stand but can invoke the privilege question by question

Protects only testimonial or communicative evidence and not real or physical evidence

To be considered testimonial, it must relate a factual assertion or disclose information

Question 139

Crim Pro

What type of evidence does the Fifth Amend right against self-incrimination concern?

Answer 139

Protects only testimonial or communicative evidence and not real or physical evidence

To be considered testimonial, it must relate a factual assertion or disclose information

Question 140

Crim Pro

If served with a subpoena, does a D have to provide documents that may contain incriminating things?

Answer 140

Yes, a person served w a subpoena requirig production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply because the act of producing the documents does not involve testimonial self-incrimination

Question 141

Crim Pro

Can a prosecutor comment on a D’s decision to stay silent or not testify?

Answer 141

A prosecutor may NOT comment on a D’s silence after being arrested and receiving Miranda warnings

But CAN comment on pre-Miranda silence

Neither may the prosecutor comment on a D’s failure to testify at trial

But prosecutor CAN comment on a D’s failure to take the stand when the comment is in response to defense counsel’s assertion that the D was not allowed to explain their side of the story

Judge may offer jury instruction about not drawing adverse inferences regarding silence either at D’s request or even over D’s objections

Harmless error test applies when prosecutor comments on these things