Criminal procedure consists of the processes by which crimes are (1), (2), and (3).
5 things that set requirements for criminal procedure
- federal constitutions
- state const.
- federal statutes
- state statutes
- court rules of criminal procedure
Most search/seizure requires a (1), and all require a standard of reasonableness–set out by (2), and the less strict standard of (3) for limited searches such as pat downs.
- probable cause
- reasonable suspicion
In 1949 the search and seizure protection was (1) in states via the (2) of the 14th Amendment. While the 4th Amendment sets a minimum standard, many (3) provide greater levels of protection.
- Due Process Clause
- state courts
3 exceptions to unreasonable search and seizure limitations
- private individuals (unless acting under direction of police)
- US agents outside US territory
- border searches
4 things protected under unreasonable search and seizure
- person (person and clothes)
- house (houses, offices, stores)
- effects (property)
An exception to protections on property/house search is (1).
- abandoned premises/property (including trash)
Police are not required to inform suspects of their right to refuse to (1), including whether motorists are (2) before allowing a search. Consent must be (3) and not coerced. A (4) cannot consent to search of a lessee’s dwelling, and neither can a (5). Only one (6) is needed to prevent search of common areas.
- consent to a search
- “free to go”
- truly voluntary
Seizure refers to taking into custody (1), (2) or a (3). But what constitutes a (4) is less clear.
- physical evidence
Originally (1) and (2) were immune to unreasonable search, but in (3), which involved a suspected bookie using a wiretapped phone booth, the new standard was that an intrusion occurs if it violates a (4).
- electronic eavesdropping
- Katz v. United States
- reasonable expectation of privacy
In (1), the SC ruled that surveillance evidence obtained GPS placed on a car parked on private property was inadmissible as evidence, in part because of the (2) standard.
- United States v. Jones
2. reasonable expectation of privacy
5 cases where expectations of privacy are considered diminished
- prison inmates (strip searches, sweeps)
- parolees (routine person searches)
- electronic communication in the workplace
- most “safety-sensitive” government jobs (drug testing of railway operators)
- airline travel
Case in which two officers sending sexually explicit texts over company phones were not protected by SC ruling (diminished expectation of privacy)
- City of Ontario v. Quon
The SC has upheld brief, warrantless search of passenger compartments at (1), but this does not extend to (2), like drug possession.
- sobriety checkpoints
2. ordinary lawbreaking
The requirement of a warrant allows interposition of a (1) between citizens and state. Probable cause requires (2) police officers to have (3) leading them to believe that (4) may be obtained through a specific search. The SC has said the courts should view probably cause in light of (5) of a given case.
- evidence of a crime
- totality of circumstances
In requesting issuance of a search warrant, a police office usually submits an (1) that contains a description of the (2) or (3) to be searched and the things to be seized, and must be specific as to the (4). The information must also be (5).
4, facts of probably cause
A magistrate’s finding of probable cause may be based on (1). This permits obtaining tips from (2). Recently, the rules on (3) were relaxed by the Supreme Court, though some states still apply more rigorous standards.`
- hearsay evidence
- confidential informants
- anonymous tips
8 exigent circumstances in which warrantless searches may be exercised because of presumed probable cause
- Evidence in plain view (such as airplane surveillance, but not infrared)
- emergency searches (bombs, etc.)
- preservation of evidence (in case of evanescent evidence–has extended to intoxicated blood sample)
- Roadside searches of motor vehicles previously pulled over on reasonable suspicion of crime (if smell of drugs emitting, etc.)
- Canine searches (drug-sniffing dogs)
- Search incident to lawful arrest (person and area within person’s control)
- Hot pursuit (fleeing = probable cause)
- Inventory searches (eg, impounded vehicles)
3 standards to apply to “plain view” doctrine
- officer has a legal justification to be in constitutionally-protected area
- evidence seized is in plain view of the officer
- it is apparent the object is evidence of a crime
3 situations in which search rights are held to a lesser standard of “reasonable suspicion” instead of “probable cause”
- School searches
- Drug testing (public employees, public school athletes)
The (1) prohibits use of illegally obtained evidence in criminal prosecution. This was upheld in (2), in which cops found sexually explicit material while searching for a bombing suspect. When the exclusionary rule came under attack, the (3) was added that still accepted evidence even if the warrant was later held to be invalid.
- exclusionary rule
- Mapp v. Ohio
- good-faith exception
An (1) is routine in cases where an arrest is to be made based on an indictment by a grand jury. When a prosecutor files an (2), a (3) is issued by the court directing arrest.
- arrest warrant
2 cases in which warrantless arrests are approved by SC
- crime committed in plain view of officer
2. probably cause to make arrest + exigent circumstances
Force used by police in making arrests is often challenged in (1). The courts have said police officers may use such force as is (2) and to (3). A famous case was (4), in which the initial acquittal of the officers sparked riots.
- civil cases
- necessary to effect the arrest
- prevent escape of the suspect
- Rodney King beatings
Another term for stop-and-frisk is (1). In (2), the SC upheld that police may stop and pat down people if they have reasonable suspicion of criminal activity.
- investigatory detention
2. Terry v. Ohio
The Supreme Court has upheld the controversial use of (1) to detain suspected drug couriers as valid with consideration of the totality if circumstances.
- drug courier profiles
Many states have taken steps to curtailing the use of (1) as a primary factor in traffic stops. In (2) SB1070 was brought under question when a federal appeals court issued an injunction to bar the its provisions, but the SC upheld it pending a trial by district court.
2. Arizona v. United States
In (1) the SC held that before interrogating suspects in custody, police must warn them of their right to remain silent. This came under fire when a (2) was invoked in the (3) basing admissibility of confession on whether it is voluntary. The SC disagreed that (4) could legislate against what had become a (5).
- Miranda v. Arizona
- federal statute
- US Court of Appeals
- constitutional right
In (1), the Court clarified the meaning of Miranda rights to extend only to those who specifically invoke them, rather than simply remaining silent. In (2) it was ruled that if a suspect asks for an attorney, the interrogation must cease.
- Berghuis v, Thompkins
2. Maryland v. Shatzer
In the (1) evidence derived from inadmissible evidence is likewise inadmissible. In other words, the (2) is tainted. Even among a tainted case, however, the (3) holds that lawfully obtained information can exempt a piece of evidence from the poisonous tree.
- fruit of the poisonous tree doctrine
- derivative evidence
- independent source doctrine
Two exceptions to the Miranda rule
- public safety exceptions (incriminating statement made alongside location of weapons, etc.) (set out in New York v. Quarles)
- “spontaneous declarations” before reasonable time to read rights
A suspect has a right to (1) at line-ups and they should not be (2). Physical identifying evidence is not subject to the 5th Amendment rule against self-incrimination, but (3) and (4) may apply.
- unnecessarily suggestive
- due process rights
- warrant rules
The right to counsel is a (1) right. In (2) it was applied to states too via the Due Process Clause of the 14th Amendment.
- 6th Amendment
2. Gideon v. Wainwright
The Gideon case also established that the 14th Amendment requires states to (1) in all felony cases. This at first applied only to (2) but was later extended to (3). Some states have established successful public defender offices; others rely on (4).
- provide counsel to indigent defendants
- ad hoc appointments
A defendant who chooses to represent herself does not have to demonstrate (1), but a trial court must hold a hearing to determined that (2). A defendant does not have a right to (3) from a trial judge, and sometimes (4) will be appointed by judges.
- knowledge of law
- the right has been exercised intelligently
- receive personal instruction
- standby counsel
Minor misdemeanors are often disposed by (1), in which the accused is summoned to court, issued a (2), and can waive court appearance by (3). If found guilty in court, they usually (4).
- summary justice
- paying a fine
- pay a fine
People placed under arrest must promptly be taken before a judge or magistrate; this (1) is usually 24-48 hours within arrest.
- initial appearance
3 functions of the initial appearance
- charges read so accused is formally notified
- accused is informed of relevant constitutional rights (silent, counsel)
- determination made of whether accused should be released pending trial or remain in custody
(1), or bail, is usually granted by statutes or court rules. The court considers things related to the defendant’s (2) as well as the (3) and (4) of current charges. (5) also increasingly helps a judge decide whether to allow pretrial release.
- pretrial release
- drug testing
With regard to excessive bail, the amount necessary should be what is required to (1), not to (2). However, the Excessive Bail Clause of the (3) has bot been held enforceable against (4). There is no definite constitutional right to bail, and often dangerous arrestees are held in (5)
- ensure the appearance of the accused in court
- inflict punishment
- 8th Amendment
- pretrial detention
3 decisions a prosecutor might make
- proceed with criminal charges as set forth in the complaint
- drop the case
- proceed on lesser charges
Prosecutorial discretion facilitates the widespread yet controversial practice of (1). There are limitations on (2), meaning prosecutors may not single out for prosecution defendants based on race, religion, etc.
1, plea bargaining
2. selective prosecution
A (1), in which a judge decides whether to hold a suspect over for grand jury, is necessary to determine sufficiency of a (2), where an arrest is made without a warrant. The PH is the inquiry into (3), a screening device for (4), and a chance for the defense counsel to (5) the prosecutor’s case.
- preliminary hearing
- probable cause
In addition to the PH, many jurisdictions require prosecutors obtain an (1), or (2), from the grand jury in order to proceed. Some states use a grand jury primarily in an (3) or (4) capacity. Grand jury hearings are closed and only a (5) is needed to hand down an indictment.
- true bill
- majority vote
4 powers of grand juries
- compel appearance of witnesses
- subpoena documents
- hold individuals in contempt
- grant immunity in exchange for testimony
2 types of immunity
- Transactional immunity (bars further prosecution in exchange for something)
- Use immunity (bars use of witness’s testimony against him/her)
The grand jury may consider evidence (1) but may not violate valid (2) established by Constitution, statutes, or common law.
- inadmissible at trial
2. evidentiary privilege
7 most common pretrial motions
- Motion for continuance (postponement)
- Motion to dismiss (indictment or infomation)
- Motion to suppress (def.’s confession)
- Motion to require the government to identify a confidential informant (CI)
- Motion to determine accused’s competency to stand trial
- Motion to take deposition (for witnesses who may not be available during trial)
- Motion for change of venue
The (1) is the chance to the accused to enter a plea. The options are (2), (3) and, in some jurisdictions, (4). An guilty or no contest plea must be determined to be make knowingly and voluntarily, and (5).
- not guilty
- nolo contendere (no contest)
- based on facts
(1), which allow guilty pleas in exchange for things like reduced sentences, are usually arrived at by experienced counsel on both sides and (2). Sometimes judges will (3). Prosecutors are expected to act in (4) with promises made.
- Plea bargains
- approved by the court
- participate in negotiations
- good faith
The case of Brady v. Maryland set forth what kinds of (1) is required by the plaintiff to disclose to defense. This is considered part of (2) and includes the stipulation that the prosecutor may not knowingly allow (3) against the accused.
- exculpatory information
- due process
- perjured testimony
4 things courts consider under the SC’s “balance test” used to ensure the 6th Amendment guarantee of speedy trial
- length of delay
- reason for delay
- defendant’s assertion of the right
- prejudice to the defendant
In 1974, replacing the “balance test” was the (1), which set forth more specific time limits on trial parts.
- Speedy Trial Act
Unlike preponderance of evidence in civil trials, criminal trials use a standard of (1). As in civil trials, admission of evidence uses (2) and (3) standards and (4) are not admissible as evidence.
- proof beyond a reasonable doubt
- lie detector tests
Per the 6th Amendment, the right to (1) adversarial witnesses is absolute. It is limited to the right to (2) and (3). (4) are allowed, though not in direct exam.
- question the witness about matters testified on direct
- ask questions to impeach the witness’s credibility
- Leading questions
5 ways to impeach a witness
- showing inability to have viewed or heard the matters, or to recall the event
- showing conflicting prior statements
- showing witness’s conviction of a crime
- establishing a bad reputation for truth in the community
- showing bias, prejudice, interest, or motive to misrepresent facts
A case about a sexual assault of two 13 year old girls in Iowa left open the interpretation of (1) as not necessarily face-to-face. Similarly, having sensitive witnesses testify by television was upheld by the SC in (2). Both of these cases have been grounds for legislation of (3).
- right of confrontation
- Maryland v. Craig
- child-shield statutes
3 situations that do not necessarily guarantee the right to a jury trial
- juvenile cases
- military tribunals
- petty offenses (sentences < 6 months)
Juries for criminal trials range from (1) to (2) members, and in most states decisions must be (3)
The basic building blocks of civil trials–(1). (2), (3) and (4)–also apply to criminal cases. In addition, the SC has upheld (5)–exclusion of jurors in capital cases who do not believe in the death penalty.
- voir dire
- challenges for cause
- peremptory challenges
- death qualification of a jury
The SC has held that trials may not be closed without findings sufficient to overcome the presumption of openness–this is the tug of war between (1) and (2). Most state courts now allow (3) and (4) coverage of court proceedings, at the discretion of the judge.
- free press
- fair trial
How to deal with unruly defendants is a matter of (1), and two solutions are (2) or (3).
- power of contempt
- removal from courtroom
- binding and gagging
Just like in a civil trial, (1) are given, prosecution presents evidence and defense may move for a (2), (3) are made and the judge gives (4). Juries elect a (5) and may or may not be (6). If the jury is (7) they may be urged to further deliberate.
- opening arguments
- directed verdict (judgment of acquittal)
- closing arguments
- jury instructions
Per (1), if no final verdict is reached, a defendant may be retried on the same counts.
- Blueforth v. Arkansas
In (1) cases, sentencing is handed down immediately. In felony cases, it may be postponed to allow a (2). This includes a report of the (3) and may include an order for a (4).
- presentence hearing
- defendant’s history
- mental evaluation
In a (1) the judge considers evidence, presentence report and aggravation/mitigation evidence which may include an (2) by the defendant, and then the court makes a (3) in open court. A defendant of a nonviolent or first crime may be given a (4).
- sentencing hearing
- pronouncement of sentencing
- suspended sentence
4 types of sentencing
- indeterminate (for rehabilitation)
- definite sentencing (no individualization–set by legislature–ensures equality)
- determinate sentencing (judge sets sentence within statutory parameters)
- indefinite sentencing (judicial discretion, allows early release from prison on parole)
(1) are statutes that set minimum sentences for certain crimes. To incapacitate (2), many laws have increased penalties for repeat felons–known colloquially as (3). The (4) was the federal statute of this. Some statutes increase severity of punishment for crimes in which the victim is (5). Another punishment enhancement used is for (6).
- Mandatory setencings
- habitual offenders
- “three strikes and you’re out”
- Violent Crime Control and Law Enforcement Act of 1994
- chosen based on certain characteristics
- drug trafficking in “drug free” zones
To remove judicial discretion from sentencing, Congress and many states have adopted (1). With the Sentencing Reform Act of 1984 came the (2), who sets many of these federally. However, in 2005. an SC decision ruled that these violated 6th Amendment (3) since judges determined sentences within guidelines based on (4). Now guidelines take an (5) instead. Sentencing guidelines, still under experimentation largely, are known to promote (6).
- sentencing guidelines
- US Sentencing Commission
- right to a jury trial
- factual evidence
- higher incarceration rates
3 things that preclude the possibility of parole
- offense is a felony sentenceable to 25+ years, life or death penalty
- offense is one for which probation is excluded
- another offense is sentenced at the same time
Probation–suspended sentence for good behavior–helps clear the prisons of (1) and (2) offenders. Probation is limited to (3). Broad discretion is given to (4) to revoke it, but a hearing must be given and the defendant has a (5).
- five years confinement
- right to counsel
Disciplinary measures in prisons often consist of removal of (1). This removal requires (2) and the inmate has a right to an (3). The inmate may present evidence and witnesses but does not have a (4). (5) function similarly, except they are allowed a right to counsel.
- good-time credit
- written notice
- administrative hearing
- right to counsel
- parole revocation hearings
To impose a death penalty, laws require a (1), in the second part of which one or more (2) must be found. The (3) and people under (4) are exempt from the death penalty. During the second stage, (5) are also introduced and then addressed by (6).
- bifurcated trials
- aggravating factors
- mentally retarded
- mitigating factors
- victim impact evidence
The recent trend has been to recognize (1) in statutes, and attempts have been made to make an amendment in the Constitution to recognize these. The (2) attempts to make these rights uniform, and includes the victim’s right to attend (3). (4) refers to returning to the victims money, etc. wrongfully obtained in the course of committing a crime, and if unpayable by the defendant, is sometimes paid by a (5).
- victims’ rights
- Uniform Victims of Crime Act (UVCA)
- any hearing the defendant may attend
- state commission
Though no right to appeal is (1), many statutes account for it.
- guaranteed by the US Constitution
4 types of appellate review
- trial de novo (trial court of gen. jur. reviews court of lim. jur.)
- appeal of right (appellate review of trial court)
- discretionary review (higher than appeal of right, must be petitioned for)
- post-conviction relief (challenge conviction after appeals exhausted)(habeas corpus)
Defense may appeal objections made during the (1), (2) or (3) phases of the case, and they may appeal (4) such as jurisdiction and rulings. Not all errors are reversed and the defense must prove that the (5) in the absence of the error. Errors that involve the (6), however, must be found beyond a reasonable doubt to have been harmless.
- fundamental errors
- outcome of the trial would probably have been different
Counsel must be provided during (1) but not (2).
- right to appeal
2. discretionary review
In recent decades, (1) has become a common and controversial form of appellate procedure. The prisoner, unlike in the past does not have to (2) but does have the burden of proof of (3) the error created.
- federal habeas corpus review
- have exhausted all appellate options
- actual prejudice
A defendant may challenge his or her judgments and sentences through (1), or (2). One of these is (3), for which the defendant must show that, aside from the gross errors made, the outcome would (4).
- collateral attack
- post-conviction relief
- ineffective counsel
- likely have been different
Lecture: Only the (1) may file action against a crime–the (2) may not press charges alone. The only recourse against an inactive prosecutor is (3).
- voting him out
Lecture: Arrest begins when the defendant is (1). He does not need to be (2) and it can be as simple as the different in shutting a police car door.
- deprived of liberty
2. formally notified of the arrest
Lecture: 3 ways an arrest can be made
- police personally witnesses crime
- obtains arrest warrant (capias)
- exigent circumstances - suspect already at police station
Lecture: 2 elements of probable cause to obtain a search warrant
- belief in certain facts that a crime has been committed
2. some grounds for belief (even unnamed tipster)
Lecture: Within 24 hours, an arrestee must be brought before a (1). This is called the (2) and kicks off the process. In this stage the defendant can plead guilty to (3) but not to (4).
- judge or magistrate
- initial appearance
Lecture: Bail is not for (1) but is for (2). It is set by the judge who factors in things like (3).
- assurance of appearance at hearing
- community ties
Lecture: After the initial appearance is the (1). In this the defendant is held by an (2) which are charges filed in affidavit form. The defendant enters a (3)–if this is not guilty, he moves on to an (4) to decide whether there is enough evidence to hold him over for trial.
- preliminary hearing
- formal plea
Lecture: States rarely use (1)–they are usually for white-collar or investigated crime. In these deliberations, (2) may not be present or cross-examine witnesses. If it is decided there is enough evidence to indict, an (3) or issued. The constitutional guarantee of a grand jury has not been (4)
- grand juries
- arrest warrant/capias
- incorporated into states
Lecture: (1) after the arraignment help keep the court up to snuff on evidence, motions, plea bargaining efforts, etc.
- Pretrial conferences
Lecture: (1) is intrusion into legally protected privacy, which is based on (2) . (3) is the government’s taking control of property. The process of obtaining a search warrant is similar to that of an (4).
- arrest warrant
Lecture: 9 exceptions to need for a warrant in search/seizure
- abandoned property
- travelers crossing the border
- TSA at airports (implied consent)
- plain view (includes airplanes and drones)
- emergency searches (plain view while responding to an emergency)
- preservation of evidence
- roadside searches of autos (after reasonable suspicion to stop in the first place)
- hot pursuit
- canine (car, but not house)
Lecture: 3 cases in which probable cause is not required for searches
- stop-and-frisk (safety of officer is at stake)
- school lockers
- drug testing for public employees
Lecture : Miranda Rights only need to be given if there is a (1). An addendum to MRs are (2). Evidence obtained without Miranda Rights is inadmissible per the (3).
- threat of incarceration
- non-US citizens are told they may contact their consulate or embassy
- fruit of the poisonous tree doctrine
Lecture: The right to counsel used to be up to the (1), but the (2) case established the right to an attorney at all stages of prosecution. If a def. waives that right and represents himself, this is called (3). The defendant does not have to (4) or give any (5). A jury verdict must be (6).
- pro se
- take the stand
Lecture: The defense atty can make opening arguments after the (1). Instead of arguing the case, all the defense really has to do is offer (2). In closing arguments, the state (3). Per the SC, defendants have no constitutional right to be (4).
- prosecutor rests his case
- alternative theories to cast doubt
- goes twice