Final Exam Flashcards
What do many scholars and lawyers think is the most important part of the CJS process?
The way police conduct their investigation and gather evidence affects all subsequent decisions made by lawyers, judges, and juries.
What is the process of criminal procedures?
1) Arrest
2) Prosecutors decide whether gov’t bring charges
3) Gov’t brings accused before a judge, who ensures accused has legal representation
4) Judge may set bail, a monetary guarantee accused will appear for trial
5) Preliminary or grand jury hearing (depending on state) examines prosecutor’s case to determine whether evidence is strong enough for case
6) At arraignment, judge reads indictment or information so that defendants understands the charges and the applicable constitutional rights. Also, asks if defendants is represented. (sometimes modifies bail amount due to changes in offense since initial appearance)
7) Judge accepts accused’s plea, if pleads guilty or no contest, no trial needed, accused proceeds to sentencing
8) If accused pleads not guilty it leads to a full trial
Grand jury v. Preliminary hearing
**Both ensure that the prosecutor is not abusing the power to charge persons w/crimes
Grand jury- composed of laypersons, w/out accused being present, indictment if the accused is charged and must stand trial
Preliminary- Both prosecution and defense may present their cases to a judge. If accused is charged, prosecutor issues an information (similar to indictment)
What does crim pro balance?
It balances the gov’t functions of law and order (security) and the individual’s right to be let alone (liberty)
What amendments govern the process of the CJS?
4th, 5th, 6th and 8th
What is the 6th amendment?
Governs trial proceedings, speedy and public jury trials where defendants can call witnesses and face their accusers. Also, the assistance of counsel
What is the 8th amendment?
Prohibits excessive bail and monetary fines and any punishments that are cruel and unusual
What makes a search unreasonable?
When it’s conducted without a warrant
What part of the 4th Amendment is “our right”?
Right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures
What part of the 4th Amendment are “police rights”?
And no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized
What is the structure of the law of search and seizure?
1) Gov’t, “thou shall not..”
2) Expectation of privacy “right of people to be secure”
3) Probable cause- high degree of certainty of incrimination
4) Warrant req’d- no exceptions in 4th Amdmt
What are the requirements for a search warrant?
1) Neutral and detached magistrate to decide
2) Oath, cops must swear it’s true
3) Probable cause
4) Particularity of description
5) Timeliness in issuance
What are the remedies for unconstitutional searches and seizures?
1) Exclusionary rule
2) Civil suits
3) Criminal prosecution
4) Administrative action
What do you do to “secure” your privacy?
- Hide stuff
- Don’t give out personal info
- Tell inquisitors to mind their business
What are the 6 “exceptions” to the warrant requirement?
1) search incident to arrest
2) searches to ensure that evidence is not lost
3) searches based on consent
4) searches to ensure safety of the police
5) searches done in “hot pursuit”
6) searches conducted under “plain view”
What can cops do lawfully (to find out about you)?
- Speak with people
- Walk and drive around and make observations
- Listen
- Ask your consent to search or to come into your home
- Stop you and make inquiries, if reasonably suspicious
What was the holding in Katz v. U.S.?
4th Amendment protects people, not places. If citizens have an “expectation of privacy” that “society is prepared to recognize as reasonable” then they are entitled to it.
This case introduced the “reasonable expectation” of 4th Amendment protection
How did the USSC overturn their decision in the ruling of Olmstead v. U.S. in Katz v. U.S.?
They held that electronic eavesdropping was not a search or seizure. There was no entry of the house and evidence was secured through hearing only.
What was the dissenting opinion in Olmstead v. U.S.?
“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They conferred, as against the gov’t, the right to be let alone. To protect that right, every unjustifiable intrusion by the gov’t, upon the privacy of the individual must be a 4th Amndt violation.”
What was the argument in Katz v. U.S.?
FBI planted a listening device on top of phone booth, their argument was that a search warrant was not necessary
What was the privacy issue in U.S. v. Jones?
Attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movement constitutes a search under the 4th Amendment
What was the holding in U.S. v. Jones?
The tracking device on Jones’ vehicle, w/out a warrant, constituted an unlawful search under the 4th Amend. USSC rejected the gov’ts argument that there is no reasonable expectation of privacy in a person’s movement on public streets and emphasized that the 4th Amendment provided some protection for trespass onto personal property.
What is probable cause to a search warrant?
It is the amount of evidence to require a warrant.
A high degree of certainty that incriminating activity is occurring.
Where do police obtain their “certainty”, various investigative techniques?
- their own observations
- undercover work
- info from snitches (informants)
- speaking w/eye witnesses to criminal activity
Why does the USSC prefer warrants?
- orderly procedure
- judicial impartiality
- informed and deliberate determination of probable cause
- cops not objective
What are some legal theories of warrantless searches?
- compelling circumstances for no warrant (ex. Valid consent)
- obviousness of incriminating activity (ex. Contraband in plain view)
- activity greater than probable cause (ex. Smell of marijuana when car window opens)
What is consent?
It is an exception because you are waiving 4th Amendment rights
What is plain view?
Technically, not a search. If cops see incriminating object in course of otherwise lawful search, it is as if object were public. No intrusion on privacy.
What are the requirements for a cop with plain view?
- cops must be in a place where he/she has right to be
- cop must not unreasonably intrude on one’s expectation of privacy
What is incident to arrest and what are the requirements?
It is an exception to warrant requirements.
- need lawful arrest
- spacial limit, search of arrested suspect and limited to area w/immediate control of suspect
- protective sweep of building okay in limited circumstances
- temporal limit, search must be conducted at time of the arrest
What was the argument in Illinois v. Gates?
If the search of gates home violated the 4th and 14th amendment? Also, was the anonymous tip from an informant enough probable cause to obtain a search warrant.
What was the holding in Illinois v. Gates?
The court found no constitutional violation and argued that the lower court misapplied the test for probable cause (Aguilar-Spinelli test) An informant’s veracity, reliability, and basis of knowledge are important in determining probable cause, but that those issues are intertwined and should not be rigidly applied.
What new test was created through Illinois v. Gates?
The totality-of-the-circumstances approach to probable cause. The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is fair probability that contraband or evidence of a crime will be found in a particular place.
What was the dissenting opinion in Illinois v. Gates?
That the Court’s complete failure to provide any persuasive reason for rejecting Aguilar and Spinelli doubtlessly reflects impatience with what it perceives to be “overly technical” rules governing searches and seizures under the Fourth Amendment.
What is a terry stop?
Brief detention of person to investigate suspicious activity. Two distinct steps necessary to justify under the 4th Amendment (stop & frisk)
What is “the stop”?
Police may conduct an investigatory stop if the officer has a “reasonable suspicion” supported by articulable facts that criminal activity may be afoot
Not a hunch, not a feeling, not rumor, not based on unreliable informant
What is reasonable and articulable suspicion?
Specific and articulable facts causing the officer to suspect that some activity relating to a crime has taken place, is occurring, or is about to occur
What is “the frisk”?
In addition to “the stop” an officer can “frisk” an individual when, but only when officer suspects danger of physical injury to officers or others nearby.
“Pat down” of outer areas of individual must be based on “reasonable suspicion” that suspect is armed and dangerous
What was the argument in Terry v. Ohio?
If the search and seizure was a violation of the 4th Amendment since it was based on the cops reasonable suspicion.
What was the holding in Terry v. Ohio?
The search undertaken by the officer was reasonable and that the weapons seized could be admissible. The officer acted on more than a “hunch” and that “a reasonably prudent man would have been warranted in believing Terry was armed and thus presented a threat to the officers safety while he was investigating suspicious behavior. The court found that the searches undertaken were limited in scope and designed to protect the officers safety.
