Criminal Procedure Flashcards
1
Q
How to approach Crim Pro question
A
Chronological order. Start with stop, then arrest, then search, and work your way through.
2
Q
Crim Pro deals primarily with:
A
- 4th Amendment - Search and Seizure
- 5th Amendment - Custodial Interrogations
- 6th Amendment - Right to Counsel & Confrontation Clause
- 8th Amendment
- Due Process Clause of the 5th and 14th Amendments
3
Q
4th Amendment
A
- Was there Government Conduct?
- Was there some type of police action?
- Does the ∆ have standing to contest the search or seizure? (Katz)
- is there a subjective expectation of privacy (did the ∆ actually expect privacy)
- Does society objectively consider there to be privacy in the thing or place to be search?
4
Q
Stop and Frisk
A
- Unde Terry, police must show a
- Reasonable suspicion
- Supported by articulable facts, of criminal activity
- The “Frisk” is a paty down of the outside of the clothing (and bags) to determine if the suspect is carrying a weapon.
- Any disclosure of any item other than weapon through frisk requires warrant or warrant exception.
5
Q
Police Checkpoints
A
- Cars are stopped on a neutral, articulable standard (every Nth car); and
- The roadblock is designed to serve purposes closely related to a particular problem related to automobiles
- Sobriety checkpoints, border checkpoints, etc.
6
Q
Searches, Warrants, and Arrests
A
- If there is a search, did the police have a warrant?
- Was the warrant valid?
- Warrant must describe the place to be searched and the objects of the search with reasonable particularity.
- Must be issued by a neutral and detached magistrate.
- May not be basd on willfully false statements.
- If valid, then search is valid.
- If warrant = invalid, see if you can save the evidence through a good faith reliance defense
- Was the warrant valid?
- If there is no warrant or warrant = invalid and can’t be saved, see if you can fit the search into an exception.
7
Q
Major Exceptions to Warrant Requirement
A
- Consent
- Was consent knowing, valid and intelligent
- Automobile
- Warrant is not required if there is probable cause that there are seizable items or contraband in the car
- Exigent Circumstances
- Law enforcement cannot create the exigent circumstance
- Plain View
- In plain view of the area in which the individual was arrested
- Search Incident to Lawful Arrest
-
First, discuss whether there was a lawful arrest
- Lawful arrest requires a warrant unless:
- The officer sees ∆ committing a felony or has PC (reasonable grounds) that ∆ is committing or has comitted a felony, or
- See the ∆ committing a misdemeanor.
- Lawful arrest requires a warrant unless:
- Takes place immediately after arrest
- In connection with arrest
- Within wingspan
- But NOT if accused is secured.
- In that case, search permitted only if:
- reasonable to believe that evidence of the offense for which arrestee has been arrested might be found in vehicle
- Protective sweep
- Facts indiccate that an accomplice may be present
-
Inventory Search
- Booking process procedure
- Inevitable Discovery
- Independent Source
- In that case, search permitted only if:
-
First, discuss whether there was a lawful arrest
8
Q
Remedy for 4th Amendment Violations
A
- Exclusionary Rule
- Exlcusion of evidence - “fruit of poisonous tree”
- Good Faith Exception
- Police acted under a good faith belief
- Impeachment Use
9
Q
Confessions
A
- 14th Amendment
- Was the confession voluntary (not coerced), looking at the totality of the circumstances
- 6th Amendment
- There is a right to counsel at all critical stages once adversary judicial proceedings have begun. Attaches post charge.
10
Q
Confessions - 5th Amendment
A
- Privilege against self-incrimination
- Before any custodial interrogation, ∆ must be given *Miranda *warning (right to counse, right to remain silent)
- Separate custody and Interrogation, define and discuss separates
- Custody = Accused not free to leave or easonably believes not free to leave
- Interrogation = Questions designed to elicit incriminating information
11
Q
Confessions - 5th Amendment - Re-initiation of Questioning
A
- Accused claims right to remain silent:
- Questioniong may only be reinitiated after a reasonable amount of time has passed, but only on a separate crime
- Accused claims right to counsel:
- Questioning may not be reinitiated absent presence of counsel, unless at hte request of the accused, unless the accused is first released into the general prison population for at least 14 days and re-mirandized
12
Q
Pretrial Identifications
A
- 6th Amendment Right to Counsel
- Right attaches post-charge
- 14th Amendment Due Process Clause
- Identification:
- Cannot be unreasonably suggestive, and
- There cannot be a substantial likelihood of misidentification
- Identification:
13
Q
Subsequent Identification
A
- Fruit of the poisonous tree - excludes subsequent identifications if they result from the tained procedure
- Identifications independent from taineted procedure are still permitted
14
Q
Co-Defendent Confessions
A
- 6th Amendment Confrontation Clause
- A co-∆’s confession is admissible only if:
- Statements concerning other party are redacted, or
- The co-∆ is subject ot cross examination
- A co-∆’s confession is admissible only if:
15
Q
Informants
A
- 5th Amendment
- Miranda warnings need not be given where the interrogation is by an informant who the ∆ does not know is working for the police.
- 6th Amendment -post charge
- PAID government informant is placed in ∆’s cell, after ∆ has been charged, and informant deliberately elicents statements.
- If ∆ blurts out info –> no violation
- PAID government informant is placed in ∆’s cell, after ∆ has been charged, and informant deliberately elicents statements.
