26. Criminal Procedure and Evidence Flashcards

Question

Officer's Knowledge Requirement for Arrest

Answer 1

officer must have knowledge of **reasonably trustworthy facts and circumstances** sufficient to warrant a **reasonably prudent person to believe the suspect has committed a crime** which arrest is authorized by law

Answer 2

to invalidate warrant issued on the basis of a affidavit, claimant must prove: 1. a **false statement** was included in the affidavit by the affiant 2. the affiant **intentionally or recklessly** included that false statement AND 3. the false statement was **material** to the finding of probable cause

Answer 3

limited to what is **reasonably necessary to discover the items described in the warrant** does NOT authorize police to search PERSONS found on the premises who are NOT NAMED in the warrant *(can search those incident to arrest)* + *limited authority to detain occupants on the premises when the search is being conducted*

Answer 4

police have authority to briefly detain a person **for investigative purposes** EVEN IF THEY LACK PROBABLE CAUSE must have **reasonable suspicion supported by ARTICULABLE facts** of criminal activity or involvement in a completed crime may conduct a frisk to ensure there are no weapons

Answer 5

police can reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its **“plain feel”**, is a weapon or contraband

Answer 6

- only police can execute a warrant - officer must **knock and announce** and wait for admittance for a reasonable time OR be refused admittance to use force to enter

Answer 7

if officer has **reasonable suspicion based on facts** that knock/announce would be **dangerous or futile** or would **inhibit** the investigation

Answer 8

If police have probable cause to believe the suspect has hidden drugs in his house, they can prohibit him from going into the house unaccompanied to prevent him from destroying drugs while they obtain a warrant

Answer 9

stopping car = seizure for 4th amendment purposes Police officers may NOT stop a car without **reasonable suspicion the law has been violated** - can seize occupants or order occupants out - may only search the areas in which a **weapon might be placed or hidden** _AND_ the officer has **reasonable belief that the occupant is dangerous**

Answer 10

to be admissible, DPC of 14th am requires confession is **VOLUNTARY**

Answer 11

assed by **totality of circumstances**: - suspects age/ education/ mental & physical condition AND - setting/ duration/ manner of police interrogation

Answer 12

product of threats/ coercion/ other duress

Answer 13

= **express questioning** or words and actions on the part of police that police should know are **reasonably likely to elicit an incriminating response** from the suspect

Answer 14

*Miranda* does not apply to spontaneous statements **not made in response to interrogation** *officers must give Miranda Warnings before asking follow-ups*

Answer 15

*Miranda* Warnings + **valid waiver** = prerequisites to admissibility of any statement made by the accused during **custodial interrogation** ## Footnote *A statement obtained through a custodial interrogation may not be used against a suspect in a criminal trial unless the suspect waives his right to remain and silent and right to counsel after being so informed by the police — officer must read the Miranda rights in full for any statements made thereafter to be admissible*

Answer 16

Anyone **in police custody AND accused of a crime**, no matter how minor, must be given Miranda warnings PRIOR to interrogation by the police

Answer 17

After receiving Miranda warnings, a detainee can: 1. do nothing 2. waive his rights 3. assert the right to remain silent OR 4. assert the right to consult with an attorney

Answer 18

- court will not presume waiver of rights - court will also not presume detainee has asserted right to remain silent or consult attorney [so police can continue to question]

Answer 19

to be valid, gov must show by a **preponderance of the evidence** that the waiver was **VOLUNTARY AND KNOWING**, looking at totality of the circumstances

Answer 20

invocation must be **explicit, unambiguous, and unequivocal** *(mere refusal to speak is not enough)*

Answer 21

- can be invoked at any time - questioning related to that particular cirme must immediately stop and they must **SCRUPULOUSLY HONOR** the request (can't badger) - can reinitiate after, so long as they WAIT a significant time before reinitiating questioning (scrupulously honoring)

Answer 22

determining custody is a **TWO-STEP** inquiry: 1. whether a reasonable person under the circumstances would feel that he was **free to terminate the interrogation and leave** AND 2. whether the relevant environment presents the same **inherently coercive pressures** as the type of station house questioning at issue in Miranda *test depends on the OBJECTIVE circumstances of the interrogation*

Answer 23

- ANY TIME prior to or during interrogation, the detainee can invoke a right to counsel. - request must be **unambiguous and specific**

Answer 24

**sufficiently clear** that a reasonable police officer in the same situation would **understand the statement to be a request for counsel**

Answer 25

ALL questioning must CEASE until the detainee is provided with an attorney or initiates further questioning himself - cannot question the detainee about an unrelated crime.

Answer 26

judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of a defendant’s 4th/ 5th/ 6th am Rights **fruit of the poisonous tree** = not only must illegally obtained evidence be excluded, but also all evidence obtained or derived from exploitation of that evidence *in application, balance rule's purpose against costs*

Answer 27

Involves either: - the use of a **single suspect** OR - distracter/fillers who have a **very different appearance from the suspect**

Answer 28

"_NECESSARILY"_ SUGGESTIVE and will **NOT** be excluded

Answer 29

suspect has a right to the presence of an attorney at any **POST CHARGE** lineup

Answer 30

it is a denial of due process when the identification is **unnecessarily suggestive** and there is a **substantial likelihood of misidentification**

Answer 31

6th Am. Confrontation Clause prior TESTIMONIAL evidence may NOT be admitted UNLESS: 1. the declarant is **unavailable** AND 2. the defendant had an **opportunity to cross-examine the declarant at the time the statement was made** *ask, is it non-testimonial? did the defendant MAKE the witness unavailable?*

Answer 32

- **NON-TESTIMONIAL** = primary purpose of the police interrogation is to enable the police to help in an ongoing emergency (e.g. calling 911) - **TESTIMONIAL** = made to establish or prove past events potentially relevant to a later criminal investigation

Answer 33

judge must determine the plea is **VOLUNTARY AND INTELLIGENT** - must be done **personally** in **open court, on the record** - court must ensure the defendant KNOWS: - nature of the charge + crucial elements - max possible penalty + mandatory minimum - right NOT to plead guilty and go to trial

Answer 34

provides that in all criminal prosecutions, the defendant has a **right to the assistance of counsel**, which applies at all CRITICAL stages of a criminal prosecution

Answer 35

under **dual sovereignty doctrine**, Double Jeopardy clause of the 5th Am applies ONLY to prosecutions of the **same criminal act by the same SOVEREIGN** *federal gov and state are separate sovereigns so can bring separate prosecutions*

Answer 36

LA Rule of Evidence 615 "on request of a party the court shall order that the witnesses be excluded from the courtroom ... and refrain from discussing the facts of the case with anyone other than counsel in the case" certain witnesses (e.g., parties and victims) may not be excluded

Answer 37

evidence of prior criminal CONVICTIONS = generally admissible for impeachment purposes evidence of **UNCONVICTED crimes/ wrongs/ acts** is NOT admissible to prove the character of a person to show he acted in CONFORMITY therewith

Answer 38

if the relationship whether by blood/ marriage/ employment/ friendship/ enmity between juror and the defendant is such that it is **REASONABLE to conclude that it would influence the juror in arriving at a verdict** *mere **casual acquaintance** = not sufficient ground for a challenge for cause*

Answer 39

In Louisiana, the state may charge two or more offenses in the same indictment in a separate count for each offense if: 1. they are of the **same or similar character**, or 2. they are **based on the same act or transaction or two or more acts or transactions connected together or part of a common scheme**, and 3. they are **triable by the same mode of trial** IF NOT = QUASH FOR MISJOINDER OF OFFENSES

Answer 40

- when he has **been employed or consulted as an attorney in the cause,** or - has been **associated with an attorney during the latter’s employment in the cause**

Answer 41

*obtain leave of court to amend the indictment* When there is a **VARIENCE between the allegations of an indictment/ bill of particulars which state the particulars of the offense, AND the evidence offered in support thereof**, the court may order the indictment or bill of particulars amended in respect to the variance, and then admit the evidence.

Answer 42

Probative of a fact or consequence

Answer 43

*trial judge has BROAD DISCRETION to exclude relevant evidence if its **probative value is substantially outweighed** by the danger of:* - unfair prejudice - confusion of the issues - misleading jury - undue delay - waste of time

Answer 44

When a person is charged with a crime, **extrinsic evidence of other crimes or misconduct** is INADMISSIBLE to **PROVE THE CHARACTER** of the person to show they acted in conformity

Answer 45

only admissible if INDEPENDENTLY relevant for _other purposes_: - motive - intent - absence of mistake / accident - identity - common plan or scheme - res gestae MIMIC-R

Answer 46

A statement **offered in evidence to prove the TRUTH of the matter asserted**

Answer 47

- NOT being used to prove the truth of the matter asserted! - **prior statement by testifying witness** IF witness was subject to cross-examination about the statement - **admissions of party-opponent** (statement made by opposing party and offered against that party) - events speaking for themselves under the immediate pressure of the occurrence

Answer 48

The testimony of a now unavailable witness, given at another hearing or a different proceeding, is admissible if: 1. the party **against** whom the testimony is offered was a party in the former action; 2. the former action involved the **same subject matter**; AND 3. the party against whom testimony is offered had an opportunity at the prior proceeding to develop the declarant’s testimony

Answer 49

- former testimony - against pecuniary/ proprietary interest - dying declarations - statements of personal/ family history

Answer 50

*unavailable declarant hearsay exception* statement of a person may be admissible if it was **AGAINST that person’s _pecuniary or proprietary interest_ when made**, OR would **expose him to CRIMINAL or CIVIL liability** such that a reasonable person in the declarant’s situation would have only made the statement if true

Answer 51

*unavailable declarant hearsay exception* speaker **believed death was imminent** and the statement **concerned the cause or circumstances** of what he believed to be his impending death

Answer 52

*unavailable declarant hearsay exception* statements concerning births, marriages, divorces, relationship, genealogical status, etc.

Answer 53

- present sense impression (explaining event while happening/ immediately after) - excited utterance - state of mind - physical condition - records - memo to revive memory - medical treatment

Answer 54

A statement of a declarant’s then-existing state of mind, emotion, sensation, or physical condition is admissible.

Answer 55

An out of court statement related to a startling event, made while under the stress or the excitement from the event, is admissible.

Answer 56

A statement is admissible if it explains an event or condition while it is happening or immediately thereafter.

Answer 57

Declarations of physical condition, including a present bodily condition or past bodily condition, are admissible.

Answer 58

Any records of **regularly conducted activity** are admissible, as are **public records and reports**, **ancient documents affecting property**, and other records.

Answer 59

If witness’s memory cannot be revived, a party can introduce a memo that the witness made at or near the time of the event.

Answer 60

The prosecution CANNOT initiate evidence of the **bad character** of the defendant to show he is **more likely to have committed the crime he is accused of**. Evidence of other crimes, wrongs, or acts is NOT generally admissible to **prove the character of a person to show he acted in CONFORMITY therewith**.

Answer 61

- **ACCUSED** is permitted to offer reputation evidence of a **pertinent trait** of his own character - **witness** CANNOT testify to **his own personal opinion** of the D OR to **specific acts** of D to prove trait in issue if D does this... PROSECUTION CAN REBUT by cross-examining witness's knowledge of D's bad reputation OR by **calling witnesses** to testify to D's **BAD REPUTATION FOR THE PERTINENT TRAIT**

Answer 62

If the defendant can show a **hostile demonstration or overt act** by the victim _at the time of the offense charged_, the defendant can introduce reputation evidence of a pertinent trait of the victim’s character or evidence of prior threats by the victim against the defendant. Once the defendant has introduced reputation evidence of a bad character trait of the victim, the prosecution can counter with reputation evidence of the victim’s GOOD character for the same trait.

Answer 63

In a HOMICIDE prosecution where the defendant pleads self-defense, evidence that the **victim was the first aggressor** OPENS THE DOOR to **reputation evidence that the victim had character for peacefulness**. This can be introduced REGARDLESS if the defendant introduced the victim’s character for violent propensity.

Answer 64

To prove the TERMS of a writing, the **original writing MUST be produced _if the terms of the writing are MATERIAL_**. *Secondary evidence* of the writing is admissible ONLY if the original is UNAVAILABLE.

Answer 65

- presumed until proof of contrary is demonstrated - PERSONAL knowledge is required - witness must declare he will testify truthfully

Answer 66

witness CANNOT READ her testimony from a prepared memo. memo MAY be used to: - **refresh** the recollection of the witness - to **substitute for the witness’s forgotten testimony upon authentication** of the memo - in **cross-examination** of the witness

Answer 67

Louisiana allows **"WIDE OPEN”** cross-examination, meaning a witness may be cross-examined on ANY matter relevant to any issue in the case (not just matters raised on direct!)

Answer 68

ANY matter than **tends to prove or disprove the credibility of the witness** will be admitted to impeach the witness’s testimony. In criminal cases, evidence of a conviction of ANY CRIME is admissible to impeach the credibility of the witness, including the accused.

Answer 69

Under the “any crime, any time” principle, any witness who testifies in a criminal case may be cross-examined as to ANY prior CONVICTION, regardless of when it occurred.

Answer 70

admissible if the subject matter is where **scientific, technical, or other specialized knowledge** would help the trier of fact understand the evidence or determine a fact at issue

Answer 71

- MUST be **relevant** and the methodology underlying the opinion must be **reliable** - MUST be supported by a **proper factual basis** and **MAY embrace the ULTIMATE issue** - *in a _criminal case_ an expert may NOT express an opinion as to the **guilt or innocence of the accused***

Answer 72

generally inadmissible EXCEPT FOR: 1. the **general appearance or condition** of a person 2. the **state of emotion** of a person 3. matters involving **sense recognition** 4. **voice or handwriting identification** 5. the **speed** of a moving object 6. the **value of his own services** 7. the **rational or irrational nature** of another’s conduct 8. **intoxication** of another

Answer 73

allows the introduction of statements relating to **”general” information that is “reasonably pertinent” to treatment or diagnosis** DOES NOT INCLUDE THE PRECISE IDENTITY of the individual who inflicted an injury

Answer 74

counsel must offer **evidence sufficient to support a finding that the thing is what the proponent claims it to be** *call someone to stand to testify to its authenticity/ "fair and accurate representation*

Answer 75

In Louisiana, a probationer has a **REDUCED expectation of privacy** — allows a probation officer to conduct unannounced visits to verify that the probationer is in compliance with the provisions of his probation as condition of probation probationer agrees to searches of: - his person - his property - residence - his vehicle, - his personal effects at any time by the probation officer or the parole officer assigned to him, with or without an arrest warrant or search warrant, **when the officer has reasonable suspicion to believe that the probationer is engaged in or has been engaging in criminal activity** NOT a Fourth Amendment violation to conduct a warrantless search of a probationer’s home under these circumstances

Answer 76

A person does NOT have a reasonable expectation of privacy in objects held out to the public. *entry to a home is within the curtilage protected by the 4th Am against unreasonable searches*, a police officer MAY approach a home in hopes of speaking to its occupants, just like a private citizen *+ talk about plain view exception*

Answer 77

1. if they become adverse/ hostile witness 2. wit fails to respond to proper questioning 3. questions necessary to develop testimony (e/g/ background/ uncontroverted issues)

Answer 78

- can come in if it is a felony and that is an ELEMENT of the offense - can use to impeach if D testifies even if not an element - cannot use as evidence of D's bad character and he acted in conformity with

Answer 79

*file motion to sever* granted where justice requires (i.e. where Ds will blame each other)

Answer 80

applicant must prove by reason of prejudice existing in the public mind—or for any other reason—a fair and impartial trial cannot be obtained in the present parish prejudice: judged from a quantitative and qualitative standpoint

Answer 81

The defense lawyers should request that the clerk **poll the jury to determine whether each juror, in fact, voted to find each defendant “guilty” of each count**. If the number required to reach a verdict do not answer “yes,” the court may remand the jury for further deliberation or declare a mistrial.

Answer 82

if start, but do not finish, statements are not admissible and must be suppressed

Answer 83

The Fourth Amendment’s “particularity” requirement mandates that a warrant must specify the places to be searched AND the things to be seized. A search warrant authorizes police to search ONLY in places where they might reasonably find the items described with particularity in the warrant. Any search broader than that is “unreasonable.”

Answer 84

deceptive tactics are permissible so long as they are not "COERCIVE" — may not give the “third degree” / threaten with physical violence

Answer 85

involuntary = under circumstances that undermined the accused’s free will - sedative - incoherent "totality of circumstances" INADMISSABLE

Answer 86

*Miranda* DOES NOT apply if not in custody

Answer 87

Any evidence obtained as the result of an arrest made in violation of the Fourth Amendment must be suppressed as a “fruit of the poisonous tree." *NOT a bar to subsequent prosecution*

Answer 88

*Birchfield* held that the Fourth Amendment requires the issuance of a search warrant from a neutral and detached magistrate prior to drawing blood to collect evidence for a DWI arrest or prosecution—“unless exigent circumstances exist in a particular case.” “Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test.”

Answer 89

NO STANDING Applied this principle when one co-defendant or co-conspirator seeks to suppress evidence incriminating him that was obtained from a co-participant in crime without proper compliance with the procedural requirements of Miranda or otherwise in violation of that party’s Fifth or Sixth Amendment rights. LA Supreme Court: “The failure of the 1974 Louisiana constitution to provide for such standing, while explicitly granting any person adversely affected by a search or seizure conducted in violation of the constitution standing to raise its illegality in the appropriate court, indicates that the framers did not consider that the additional benefit of extending the exclusionary rule to persons adversely affected by others’ involuntary confessions would justify further encroachment upon the public interest in having criminal cases decided on the basis of relevant evidence.”

Answer 90

even if procedure was “unnecessarily” suggestive, it would still be admissible if it were “reliable.” Given that the witness “looked directly at” the perpetrator during the crime, then gave a “detailed description” of the perpetrator, and finally, was reasonably certain in his identification (“absolutely yes”), it is likely that the identification was “reliable.”

26. Criminal Procedure and Evidence Flashcards

(115 cards)