Constitutional Protection of Accused Persons Flashcards
(144 cards)
1
Q
What constitutional right is NOT binding on the states in the criminal legal system?
A
The 5th Amendment right to indictment by grand jury in criminal cases is NOT binding on the states
*all other const. rights have been inc by states (eg, right to jury trial, counsel, privilege against self-incrim)
2
Q
When does a “seizure” occur?
A
When the gov exercises control over a person or thing
*a person is “seized when under arrest or if they reasonably believe that they are not free to leave
3
Q
Define “arrest”
A
taking of a person into custody by law enforcement either use of force or submission to a show of force
*arrest may be purpose for interrogation or to officially charge
4
Q
What is “stop and frisk”?
A
A law enforcement officer’s brief detainment of an individual to investigate criminal activity where the officer performs a limited pat-down of the detainee’s clothing
*officers do NOT need probable cause for stop and frisk, only need REASONABLE SUSPICION supported by articulable facts
5
Q
What is the legals standard for the police to conduct an automobile stop?
A
The police may stop a single car if they have reasonable suspicion that a law has been violated
*under certain conditions, the police may set up roadblocks to search cars w/out reasonable suspicion
6
Q
What is a “pretextual” automobile stop?
A
When law enforcement officer has probable cause to believe that a traffic law has been broken, and they use this as a pretext for stopping the vehicle
*permissible even if the officer’s motive is to investigate a wholly unrelated crime, for which they have no cause to investigate
7
Q
What is the purpose of the 4th amendment?
A
prohibits the gov from conducting unreasonable searches and seizures on ppl’s bodies/property
*applies to government action but may also extend to private parties acting at the discretion of the gov
8
Q
When does a person have “standing” for purposes of the 4th amendment?
A
If they can show that they had a “reasonable expectation of privacy” in the thing or place being searched by the gov
*a court will look to the TOTALITY OF THE CIRCUMSTANCES to make this determination
9
Q
What are the 3 requirements of a valid search warrant?
A
Requires:
- an oath or affirmation (ie, affidavit), usually by a police officer, establishing probable cause for the search;
- issuance by a neutral magistrate; AND
- a description, with particularity in detail, of the places to be searched and the items to be seized
*if the probable cause is based on info from a confidential informant, the affidavit must contain enough facts for a magistrate to make a common sense determination of probable cause
10
Q
What are the 3 requirements of a successful challenge to a search warrant?
A
THe ∆ must make a “substantial showing” by a preponderance of the evidence, that:
- the affidavit contained a false statement
- the false stamtent was necessary to the probable cause finding AND
- the affiant either knowingly or recklessly inserted the false statement
*the fact that the affidavit contained a false statement is not enough to invalidate the warrant if the officer’s good faith reliance was reasonable
11
Q
What are the 6 exceptions to the warrant requirement?
A
- search incident to lawful arrest
- automobile exception
- stop and frisk
- valid consent to search
- items in plain view
- exigent circumstances
12
Q
What are the 3 requirements of the “plain view” exception?
A
The police may make a warrantless seizure of an item when they:
- observe item(s) in plain view;
- have immediate probable cause to believe those items are either contraband or fruits or instrumentalities of crime; AND
- their presence on the premises is lawful
*plain view may include any sensory detection, including smells, sights, or sounds
13
Q
Who has the authority to consent to a warrantless search of a premises?
A
-the ∆ or someone who has an apparent equal right to use or occupy the premises may consent to a search of the premises
-the gov bears the burden to establish that the consenting party had joint access or control of premises
*generally, if 2 occupants are present and one consents while the other objects, the police may not rely on the consent given to proceed with the search
14
Q
What type of showing is required for a warrant to conduct an administrative search?
A
A warrant for an administrative search requires only a showing of a general and neutral plan for enforcement
The usual probable cause requirement is relaxed w/ administrative search warrants
*administrative searches often happen for public safety reasons in highly regulated industries, such as food safety, airline safety or building codes
15
Q
Is electronic surveillance (ie, wiretapping and eavesdropping) considered a “search” under the Fourth Amendment?
A
YES
Electronic surveillance amounts to a “search” if there is a reasonable expectation of privacy (ie, a physical intrusion is unnecessary to constitute a search by wiretapping eavesdropping)
*special rules apply to warrants for electronic searches, including time limits on the wiretapping and showing the court the conversations that were intercepted
16
Q
What is the purpose of the fifth amendment “privilege against self-incrimination”?
A
ensures the right not to be compelled to intimate oneself (be a witness against oneself)
*often applies to outright confessions to a crime but may also apply to other types of incriminating statements
17
Q
What is the purpose of the Sixth Amendment right to counsel?
A
-ensures that an accused has an attorney present at all critical stages of the criminal proceeding
-a voluntary confession may still be thrown out of the ∆ had the right to have counsel present and the police did not obtain a waiver before deliberately eliciting incriminating statements from him
*distinguish from 5th amendment right to counsel under Miranda, which applies to detainees being INVESTIGATED for a crime
18
Q
Miranda Warnings
A
MOST COMM TESTED - right to remain silent and right to an attorney
19
Q
What are the 2 requirements for when Miranda warnings must be given?
A
Miranda warnings must be issued before the accused is subjected to “custodial interrogation” by police
- Custody: a person is in custody when they reasonably believe they are not free to leave or terminate the encounter
- Interrogation: a person is subject to interrogation when the police knew or should have known their conduct was likely to elicit an incriminating response
20
Q
Which three options are available to a detainee after they have been given Miranda warnings?
A
After receiving Miranda warnings, the detainee may:
- take no action
- voluntarily waive their Miranda rights; OR
- assert one or more of their constitutional rights
21
Q
What is the purpose of a preliminary hearing immediately following a suspect’s arrest?
A
An initial hearing conducted to determine whether probable cause exists to justify holding a person for trial
*probable cause finding may also be done through a “probable cause hearing” which also has the goal of ensuring probable cause exists to hold a suspect in custody
*note 8th am prohibits excessive bail
22
Q
Does a suspect have the right to receive notice that a grand jury proceeding is happening?
A
NO.
A grand jury proceeding investigating someone for a crime may be conducted w/out the suspect’s knowledge
*the suspect thus has no right to be present or confront witnesses at a grand jury proceeding
23
Q
Which factors will a court balance in determining whether one’s right to a speedy trial was violated?
A
Court balances the totality of the circumstances, including:
-the length of delay
-the reason for delay
-whether the ∆ demanded a speedy trial
-any resulting prejudice to ∆
24
Q
What is the prosecution’s duty to disclose under Brady?
A
A prosecutor has a duty to disclose any material, exculpatory evidence to the ∆
*even if the gov’ inadvertent failure to disclose Brady retrial is unconstitutional
25
What is the "competency to stand trial"?
About ∆'s mental state at time of trial; if they are found incompetent, the trial may not proceed
*a ∆'s competence may be reassessed at a later time and if competency is regained the trial may proceed
26
What are the 2 requirements for establishing a Brady violation?
A BRADY violation occurs when the prosecution willfully or inadvertently fails to disclose exculpatory, material information to the ∆, and will be a basis for reversal IF the ∆ proves:
1. such evidence is favorable because it is either impeachment material or exculpatory; AND
2. the failure to disclose the evidence caused prejudice (inc, had the gov turned over evidence, there is a reasonable probability that outcome would have been different)
27
What is the purpose of the right to a public trial?
to safeguard ∆'s due process rights by opening certain stages of the proceedings to the public (including the media)
*even if ∆, prosecutor, and judge all agree to a closed trial, the media may assert the right to attend
28
What does the right to a fair trial ensure regarding the trier of fact?
A crime ∆ has the right to a trial by an impartial judge or jury that is not biased or prejudiced
*a judge may NOT be prejudiced or have a financial stake in the outcome; a jury may NOT be subject to unfair outside influences
29
When does a criminal ∆ have the right to a jury trial?
Available for the commission of serious offenses where there is a potential for imprisonment of 6 months or more
*the right applies in federal AND state proceedings - it does NOT apply to juvenile proceedings
30
WHEN does the 6th amendment right to counsel attach?
attaches AFTER the INITIATION of FORMAL ADVERSARIAL proceedings, such as by "formal charge, preliminary hearing, indictment, information, or arraignment"
*note - the SIXTH amendment right to counsel does NOT apply to pre-charge interrogation; during that phase the accused must invoke the FIFTH amendment right to counsel
31
What are the two requirements of a valid waiver of one's FIFTH amendment right to counsel?
The FIFTH Amendment waiver of one's right to counsel is valid if they are advised of the right they are relinquishing, and they COMPETENTLY waive the right:
1. intelligently; AND
2. voluntarily
*NOTE: than an accused must rely on the FIFTH amendment right to counsel during the pre-charge chase - 6th right to counsel applies AFTER charging
32
What are the 2 elements of an "ineffective assistance of counsel" claim?
The ∆ must prove both that:
1. counsel's performance was deficient; AND
2. prejudice resulted (but for the deficiency, the outcome would have been different)
*counsel's performance is measured by an OBJECTIve standard of reasonableness
33
Which four rights does a ∆ have around confronting witnesses?
The ∆ has the right to:
1. be present at trial;
2. be informed of the identities of opposing witnesses;
3. confront opposing witnesses face-to-face; AND
4. cross-examine opposing witnesses
*the right may be limited in the event of a conflicting public purpose
34
What is the burden of proof on the prosecution in a criminal trial?
Prosecution MUST prove every element of the criminal charge beyond a reasonable doubt
*a state may impose the burden of proof on the ∆ for an affirmative defense
35
What is a "plea bargain"?
An agreement between a ∆ and and prosecutor for a mutually satisfactory disposition of a criminal case, usually involving a guilty plea to a lesser offense in exchange for lighter sentence, subject to court approval
*this is a waiver of the ∆'s right to trial by jury
36
What type of punishment is considered "cruel and unusual"?
If it is disproportionate to the seriousness of the crime committed
*there is also a constitutional prohibition on excessive fines
37
What is the prohibition against double jeopardy?
A ∆ may NOT be prosecuted a second time for the same offense
**jeopardy must first "attach" before the prohibition against double jeopardy will be triggered
38
What are the 3 requirements for invoking one's privilege against self-incrimination?
A person may invoke the right against self-incrimination (ie, "plead the fifth) then the elevated statement:
1. is testimonial in nature;
2. might be incriminating; AND
3. may be sued against them (ie, they do not have immunity)
39
HYPO:
If an accused asserts their right to remain silent after being issued Miranda warnings, may the prosecution use it against them at trial?
NO.
Cannot use ∆'s silence against them when the privilege was invoked AFTER being given Miranda warnings
*if a prosecutor makes such a comment, a determination must be made as to whether the comment should be disregarded under the "harmless error" test
40
May testimony be compelled from someone who has a grant of immunity?
YES.
Immunity extinguishes the privilege against self-incrimination and the witness may be compelled to testify
41
Which 3 constitutional rights do NOT apply to juvenile proceedings?
1. trial by jury
2. prohibition against double jeopardy (in some circumstances) OR
3. public proceedings
*juveniles may also be subject to warrantless searches and seizures by school officials based on reasonable suspicion
42
What is the level of permissible force a police officer may use when making an arrest?
REASONABLE.
Deadly force is considered "reasonable" if the officer has probable cause to believe the arrestee may flee and poses a threat of serious bodily injury/death
*a suspect who is NOT armed or dangerous may NOT be arrested using deadly force
43
May states impose constitutional protections that fall short of federal constitutional rights?
NO.
States must meet the fed constitutional protections as a "floor"
*states may also offer GREATER protections than guaranteed by constitution if they choose
44
Does an arrest constitute a "use of force"?
Generally yes.
An arrest requires the ∆ to submit to the police's use of physical force - the arrest may also be the result of a show of physical force
*an arrestee is not able to leave under their own free will
45
What is required for the police to have grounds to arrest someone?
Probable cause.
46
Does an arrest in a public place require a warrant?
No
*however, an arrest in a private home DOES generally require a warrant
47
What is the procedural effect of an invalid arrest?
An invalid arrest may be grounds to exclude evidence discovered incident to invalid arrest
*an unconstitutional arrest ALONE offers NO basis to challenge the underlying criminal charge, only exclude evidence discovered incident to the invalid arrest
48
What is "reasonable suspicion"?
level of suspicion LESS than probable cause but MORE than a vague suspicion, based on totality of circumstances
*officers may conduct stop and frisk based on reasonable suspicion - no need for probable cause
49
2 requirements for police to set up roadblock
If:
1. they use a neutral, articulable standard; AND
2. the roadblock is intended to serve a particular purpose related to automobiles and their mobility
*for example: the police may check every third car for drunk driving activity
50
Do people have a reasonable expectation of privacy in items held out to the public?
NO.
There is no reasonable expectation of privacy in public places or things
*examples include handwriting, items seen in "open fields" or during a flyover, and garbage placed outside
51
HYPO:
If a ∆ establishes a reasonable expectation of privacy, when will a search still be considered reasonable?
A search where the ∆ had a reasonable expectation of privacy is still considered reasonable if EITHER:
1. the police had a valid warrant; OR
2. an exception to the warrant requirement existed
52
What are the four limits of a search incident to arrest?
The police may conduct a search incident to arrest, without a warrant, as long as:
1. an arrest is being made;
2. the arrest itself is constitutional;
3. the scope of the search is limited to the person and areas within their wingspan; AND
4. the search is contemporaneous in both time and place to the arrest
53
What is the legal standard for the "consent" exception to the warrant requirement?
The police may conduct a warrantless search if they have obtained consent that is both voluntary and intelligent
*the scope of the search is limited to the reasonable extent of the consent given
54
HYPO:
When 2 people share an apartment, may either roommate consent to a warrantless search?
YES.
Either roommate may consent in the other's absence, but the scope is limited to common areas or areas in the control of the consenting roommate
*consent may NOT be given to any private, reserved spaces of the non-present roommate
55
What are the 4 types of "exigent circumstances" exceptions to the warrant requirement?
Include:
1. imminent threat of destruction of evidence
2. hot pursuit
3. evanescent evidence AND
4. emergency aid is required
56
What is the purpose of the "voluntariness" requirement for confessions?
For a confession to be admissible in court, due process requires that it was "voluntary" when made by the accused
57
To WHICH proceedings does the Sixth Amendment right to counsel apply?
A ∆ automatically has the right to have counsel present at ALL ADVERSARIAL judicial proceedings (eg, pretrial identifications or lineups) that take place AFTER CHARGING, or at "critical stages" prior to trial
*The SIXTH Amendment right to counsel's automatic application differs from the FIFTH Amendment right to counsel, which the ∆ must invoke earlier during custodial interrogation under Miranda
58
HYPO:
If a ∆'s SIXTH Amendment right to counsel has attached, may the police still question him about UNRELATED crimes WITHOUT counsel present?
YES.
-THE 6TH Amendment right to counsel is offense-specific meaning the police may question the ∆ about any other crime w/out legal counsel present and without a waiver
-NOTE: the police may NOT seek to "deliberately elicit incriminating statements" from the ∆ about the SAME offense w/out obtaining a waiver of the SIXTH amendment right to counsel
*the offense-specific rule only applies to SIXTH Amendment right to counsel; an accused's FIFTH Amendment invocation stops ALL questioning
59
What is the effect of a failure to give Miranda warnings prior to obtaining a confession?
If the police fail to give the warnings, usually any statement obtained will be inadmissible as evidence of the ∆'s guilt
*remember that Miranda warnings implicate FIFTH not SIXTH amendment
60
HYPO:
If a ∆ is not give Miranda warnings and confesses, but the police subsequently give the warnings and the ∆ makes another confession, will the second confession be admissible?
It depends.
A subsequent confession made after Miranda warnings are provided is admissible if the original unwarned questioning seemed unplanned and the failure to provide Miranda warnings was inadvertent
BUT the second confession will be inadmissible IF the facts indicate that the police were attempting to dilute the effect of the Miranda warnings (ie, question first, warn later)
61
What is the legal standard for "custody" in the context of Miranda?
the accused is in "custody" if an objectively reasonable person in that situation would not feel like they were free to terminate the encounter and leave
62
What is the legal standard for "interrogation" in the context of Miranda?
An "interrogation" occurs by either:
1. express questioning; OR
2. words or actions by the police they should be aware are reasonably likely to elicit an incriminating response from the accused
63
What are the 2 requirements of an effective waiver of one's Miranda rights?
An effective waiver must be:
1. knowing; AND
2. voluntary
*in determining whether the waiver was effective courts look at the totality of the circumstances
64
What are the two requirements for a detainee to properly invoke their right to SILENCE?
The detainee must:
1. indicate a desire to remain silent at any time before or during interrogation; AND
2. the indication must be explicit, unambiguous, and unequivocal
65
What is required for a detainee to properly invoke their FIFTH Amendment right to counsel?
A proper invocation of one's Fifth Amendment right to counsel requires:
1. an unambiguous request for counsel; AND
2. the invocation must be clear enough that a reasonable police officer would interpret it as a request to have counsel present
66
What is the legal standard for setting bail?
Bail must be fixed at a rate that is no more than necessary to ensure the ∆ will attend trial
*to deny bail, the gov must show that the ∆ poses a flight risk or is a danger to the community
67
What are the two ways a person may formally charged with a crime?
A person may be formally charged with a crime by:
1. grand jury indictment; OR
2. "information"
*an information is more commonly used as a charging device than an indictment
68
What is a "grand jury indictment"?
A "grand jury indictment" is a written accusation that a person has committed a crime, which a prosecutor submits to the grand jury for a decision on whether to issue the formal indictment
*the indictment also serves to notify the accused of the charges brought against them
69
What is the difference between an "information" and a "grand jury indictment" used to charge an accused?
-An "information" is a written accusation of charges against someone initiated by a police officer or prosecutor
-By contrast, a prosecutor may submit charges against someone to a grand jury, which may choose whether to issue an indictment charging the accused with the crime
*in most states an information may be used instead of an indictment to charge someone
70
Are grand jury indictments required in state criminal proceedings?
NO.
There is no constitutional right to an indictment by grand jury in state proceedings
*there is a 5th Amendment right to indictment by grand jury in FEDERAL felony cases, but most STATES allow charging by information instead of indictment
71
When does the right to speedy trial attach?
Attaches after a person is officially "accused," which may be an official arrest, or charging by way of indictment or information
*as a result, this right is not violated if the prosecution delays filing charges against someone who has not yet been arrested
72
What is the minimum number of jurors required in a criminal trial?
6
73
Which four admonishments must the court give to a ∆ pleading guilty to a crime?
To ensure that the plea is voluntary and intelligent, the court must advise the ∆, in open court, of the following:
1. the nature of the charge against them, including the elements;
2. the maximum penalty and any mandatory minimum;
3. the right to plead not guilty and proceed w/ a trial; AND
4. that, by pleading guilty, the ∆ is waiving their right to trial
74
When does jeopardy "attach"?
Jeopardy attaches:
1. in a JURY trial, once the jury is empaneled and sworn in; OR
2. in a BENCH trial, when first witness is sworn in
*jeopardy generally will NOT attach in civil cases, except in juvenile proceedings
75
What are the 5 exceptions to the prohibition against double jeopardy?
A ∆ MAY be retried for the same offense in 5 scenarios where double jeopardy will NOT apply, including:
1. hung jury;
2. mistrial based on ∆'s motion OR manifest necessity;
3. breach of a plea bargain;
4. retrial after a successful appeal; OR
5. trials by separate sovereigns
*the gov may NOT appeal an outright acquittal but may appeal the denial of certain orders and sentencing rulings
76
When is evidence considered "testimonial"?
-"Testimonial" evidence is considered any activity that is intended to assert or disclose information
-if the activity (eg, speaking, writing, etc.) could be a substitute for in-court testimony, it is usually thought to be "testimonial" in nature
*whether evidence is considered "testimonial" is an issue that often arises in Confrontation Clause questions
77
HYPO:
If an accused asserts their right to remain silent BEFORE being issued Miranda warnings, may the prosecution use it against them at trial?
YES.
The prosecution may comment on the ∆'s choice to remain silent prior to being given Miranda warnings while in custody
*the prosecutor may NOT comment on a ∆'s choice to remain silent AFTER having been issued Miranda warnings
78
May a prosecutor comment on a ∆'s choice not to testify at all?
NO.
The prosecution may not comment on a ∆'s decision not to testify at trial
*the ∆ may also request a jury instruction indicating that jurors should not draw any adverse inferences from the choice not to testify
79
Under what circumstances is the prosecution allowed to appeal?
The prosecution may appeal as long as a successful appeal would not subject the ∆ to a retrial (ie, judge grants motion to set aside jury verdict)
*the prosecution may also appeal any dismissal based on the ∆'s motion which does not form an acquittal on the merits
80
What standard of review is used to remedy a violation of the exclusionary rule?
Harmless error review allows for admission of illegally seized evidence to be upheld on appeal if the government can show that it was harmless beyond a reasonable doubt
81
What is the "harmless error test"?
Provides that any error, defect, irregularity, or variance which did not prejudice the case or affect the ∆'s substantial rights shall be disregarded
*on appeal, a guilty verdict will stand if the prosecution can show beyond a reasonable doubt that the admission was harmless
82
Do homeowners have an automatic reasonable expectation of privacy in their property?
YES.
If a person owns or lives in the home to be searched, they have a reasonable expectation of privacy
**an overnight guest in the place to be searched also has a reasonable expectation of privacy
83
What is the "knock and announce" requirement for execution of a search warrant?
Unless exigent circumstances exist, the arresting must "knock and announce" their identity and purpose before entering the premise
A violation of the "knock and announce" rule does not automatically trigger the exclusion of evidence seized after the violation
*if the officers have reasonable suspicion that knocking and announcing would be (i) futile, (ii) dangerous, or (iii) inhibiting to the investigation, they may bypass the knock and announce requirement
84
What is the warrant exception "search incident to a lawful arrest"?
Pursuant to a "search incident to a lawful arrest," an arresting officer may lawfully search the suspect and the area w/in their wingspan
*the suspect's searchable wingspan changes as they move, ie, switch locations
85
What are the exceptions to the exclusionary rule?
Evidence will not be held inadmissible as fruit of the poisonous tree if:
1. police had an independent source;
2. discovery of the evidence was inevitable;
3. there was intervening acts of free will by the ∆;
4. there is attenuation (the evidence is too remote from the unlawful search and seizure; OR
5. the police relied in good faith on a detective warrant
86
When may an officer search an automobile pursuant to the search incident to a lawful arrest warrant exception?
The police may conduct a search of the automobile if at the time of the search:
1. the officer reasonably believes that evidence of the crime for which the arrest was made may be found in the vehicle; OR
2. the arrestee is unsecured and may gain access to the vehicle
87
What is a "Terry Stop"?
Often referred to as "stop and frisk" is a law enforcement officer's brief detainment of an individual to investigate criminal activity where the officer performs a limited pat-down of the detainee's clothing
88
What is a "protective sweep"?
Following a lawful arrest, the police may conduct a "protective sweep" of an area for officer safety or with the reasonable belief that accomplices may be present
89
When a private party acts at the direction of a government agency is the search subject to 4th Amendment scrutiny?
YES.
When a private party acts at the direction of a government agent or pursuant to an official policy the search conducted and the evidence seized are subject to the 4th Amendment
90
What is the "independent source" exception to the exclusionary rule?
If the police can show that evidence initially discovered during, or as a consequence of, an unlawful search was later obtained from an "independent source" untainted by the initial illegality, such evidence will not be excluded
91
What is the "inevitable discovery" exception to the exclusionary rule?
If the police can show that the discovery of evidence would have been inevitable regardless or illegality, the evidence will not be excluded
92
May the police stop an automobile as a pretext for uncovering evidence of a more serious violation?
YES.
AS long as the police had a valid legal reason based on reasonable suspicion or probable cause for the stop, an officer's motive that the automobile stop served as a pretext for investigating other criminal wrongdoings does not invalidate the stop
93
When is "standing" necessary?
In order to raise a Fourth Amendment objection to a particular search or seizure, a ∆ must have "standing" to do so
*"standing" means the search or seizure violated the π's OWN reasonable expectation of privacy
94
What is the "good faith" exception to the exclusionary rule?
If the government can show that the police relied in "good faith" on a defective search warrant or a statute that was later changed or declared invalid, such illegally obtained evidence will NOT be excluded
95
What are the 3 types of fixed checkpoints that are permissible?
Police may stop an automobile and question the occupants w/out reasonable suspicion at these three types of fixed checkpoints:
1. sobriety checkpoints
2. customs checkpoints at or near a border AND
3. checkpoints set up to obtain information about a recent crime
96
What is the "attenuation" exception to the exclusionary rule?
Evidence is admissible when the connection between unconstitutional police conduct and the evidence is remote or has been interrupted by an intervening circumstance
97
What constitutes a "search"?
A search occurs when there is a governmental intrusion into an area where a person has a reasonable expectation of privacy
98
Define the Fourth Amendment warrant requirement for searches
The Fourth Amendment requires that searches are conducted pursuant to a warrant based on probable cause that the place to be searched contains the item to be seized, unless there is an exception to the warrant requirement
99
Can physical evidence derived from a Miranda violation be admissible?
YES.
Physical evidence derived as a result of that search is admissible even if probable cause was based on a Miranda violation
100
What triggers 4th Amendment protections?
4th Am protections apply if a person has a reasonable expectation of privacy in the thing or place to be searched or the item to be seized
*reasonable expectation of privacy is determined by the totality of the circumstances
101
What is "probable cause"?
Requires facts and circumstances w/in the police officer's knowledge that would lead a reasonable person to believe that the suspect has committed, is committing, or is about to commit a crime
102
What is the general rule for consent to search where there is a total joint ownership of the premise
Any person who has joint ownership of a shared premises may consent to a valid search and any evidence obtained may be used against the other occupants
103
Define the "exclusionary rule"
Prohibits the introduction of evidence obtained in violation of the Fourth, Fifth and Sixth amendments, including physical evidence and statements, in a criminal proceedings
104
How may evidence excluded under the exclusionary rule be used for impeachment purposes?
Evidence obtained from an illegal search that is inadmissible under the exclusionary rule may still be used by the prosecution to impeach the ∆'s testimony given on cross-examination
*this exception does not apply to witnesses other than the ∆
105
What is required for an individual to be arrested in their own home?
An arrest warrant is required before police can arrest an individual in their own home, absent exigent circumstances or consent
106
Does an individual have a reasonable expectation of privacy in their luggage?
There is no reasonable expectation of privacy in the smell BUT there is a reasonable expectation of privacy in one's luggage against physically invasive searches
107
What is the "automobile exception" to the warrant requirement?
If the police have probable cause to believe that a vehicle contains contraband or fruits or instrumentalities of a crime, they may search the entire vehicle and all containers w/in the vehicle that may reasonably contain the items for which there is probable cause
*the automobile warrant exception does not apply to vehicles parked within the curtilage of one's home
108
What is the "Fruit of the Poisonous Tree Doctrine"?
All evidence derived or obtained as a result of illegal government conduct is inadmissible in criminal proceedings against the ∆ as "fruit of the poisonous tree"
109
What are the three elements of the reasonableness standard for a school search?
Only reasonable grounds, NOT a warrant nor probable cause is required for searches conducted by school officials. A school search is reasonable if:
1. the search offers a moderate chance of finding evidence
2. measures adopted to carry out the search are reasonably 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
110
What is an "inventory search"?
The routine inventory of an impounded vehicle or of a ∆'s possessions during incarceration
An inventory search must be both reasonable and conducted according to established police procedures
111
When the ∆ raises an affirmative defense, what is their burden of proof?
They must prove that affirmative defense by a preponderance of evidence
112
The burden to prove guilt is always on which party?
prosecution - burden to prove guilt beyond a reasonable doubt
113
Why are jury instructions that create an irrebuttable or mandatory presumptions problematic?
A jury instruction that creates an irrebuttable conclusive presumption that cannot be disputed or overcome by additional evidence is a per se violation of the DPC
A jury instruction that creates a rebuttable mandatory presumption violates the DPC if it shifts the burden of proof to the ∆ on an element of the offense
114
What does "voluntary" mean in the context of waiving one's Miranda rights?
A waiver of Miranda rights is "voluntary" if it was given free of intimidation, coercion, or deception
115
What does "knowing" mean in the context of waiving one's Miranda rights?
Knowing means that the defendant has full awareness of the nature of the rights and consequences of abandoning them
*events occurring outside of the presence of a suspect have no bearing on their capacity to comprehend and knowingly relinquish their Miranda rights
116
What are the 5 rights of the Fifth Amendment?
1. protects against self-incrimination
2. guarantees the right to a grand jury indictment for federal crimes
3. prohibits double jeopardy
4. protects against government takings of property w/out just compensation
5. requires that "due process of law" be part of any proceeding that denies a citizen "life, liberty, or property"
*the 5th amendment DPC only applies to FEDERAL GOVERNMENT
117
Define "custody"
determined by whether a reasonable person would feel that their freedom of movement is denied in a significant way (ie, not free to leave or terminate the encounter)
118
What is the evidentiary value of a involuntary confession?
An involuntary confession will be suppressed as a violation of the Due Process Clause of the FOURTEENTH AMENDMENT
*if an involuntary confession was erroneously admitted into evidence the harmless error test will be used to determine if the conviction should be overturned
119
What is the evidentiary value of statements obtained during custodial interrogation in violation of Miranda?
Statements obtained during custodial interrogation in violation of Miranda are excluded from the prosecutor's case-in-chief but may be used to IMPEACH the ∆'s trial testimony
120
What is the "public safety" exception to Miranda?
Under the limited "public safety" exception, if a police interrogation is reasonably prompted by a concern for public safety, the police may interrogate a suspect w/out providing Miranda warnings and the suspect's responses may be used later in court, even through Miranda warnings were not given
121
Does recitation of the Miranda warnings need to be verbatim to be valid?
NO.
Miranda warnings need not be verbatim
Rather, they must reasonably convey to the suspect their rights as required by Miranda
122
What are the three limitations for sentencing minors recognized as cruel and unusual punishment under the 8th amendment?
1. a person who committed their offense while a minor may NOT be executed
2. a minor who committed a non-homicide offense may NOT be sentenced to life imprisonment without parole; AND
3. a minor who committed a homicide offense may not be sentenced using a sentencing scheme that imposes mandatory life imprisonment w/out the possibility of parole
123
What is the "same offense" requirement under double jeopardy?
If an individual is prosecuted for more than one offense stemming from a single course of conduct when each offense requires proof of a fact that the other does not, convicting the ∆ of both crimes would NOT violate standards of double jeopardy
124
What is a "less included offense"?
Is a crime for which all the elements necessary to impose criminal liability are also elements found in a more serious crime
125
What is the separate sovereign exception to double jeopardy?
The prohibition against double jeopardy does not apply to trials by separate sovereigns
A person may be tried for the same offense by two separate states OR a state and the federal government
126
What is the due process standard of incompetence?
Under the due process standard, a ∆ is incompetent to stand trial if due to their present mental condition they either:
1. lack a rational and factual understanding of the charges and proceedings; OR
2. lack sufficient present ability to consult their lawyer w/ a reasonable degree of understanding
127
What is a grand jury proceeding?
Grand juries are required in federal court and are used to determine whether there is sufficient probable cause to bring charges against the ∆
*the exclusionary rule does not apply to exclude evidence from a grand jury proceeding
128
A criminal ∆ has a right to a jury that is what two things?
a jury that is fair and impartial
129
What is the Sixth Amendment guarantee to a speedy trial?
The right to a speedy trial protects from an unreasonable delay between the time charges are filed and the start of the trial
130
When may a judge disallow the press and general public to be present at a criminal proceeding besides the grand jury?
If the judge specifically finds some overriding interest to necessitate a closed trial, they may revoke the press and general public's 6th Am right to be present at all criminal proceedings EXCEPT the grand jury
131
Define the Sixth Amendment Confrontation Clause
An accused has the right to confront the witnesses against them by:
1. observing the demeanor of the testifying witness; AND
2. having the opportunity to cross-examine any adverse witness
132
Must a verdict be unanimous in a criminal trial?
YES.
Under 6th Amendment right to a jury trial, a unanimous verdict is required to convict in both federal and state court
133
What is the difference between testimonial and non-testimonial statements for purposes of the Confrontation Clause?
A statement is testimonial when the purpose of the interrogation is to establish past events potentially relevant to a later criminal prosecution
WHEREAS - a statement is NON-testimonial when the primary purpose of the interrogation is to enable the police to assist in an ongoing emergency
134
Define competence to stand trial
Competence or fitness to stand trial refers to the ∆'s ability to understand the proceedings against them and assist in their own defense
135
May the exclusion of jurors be based on race or gender?
NO.
Preemptory challenges cannot be used to exclude jurors on the basis of race, gender, national origin, or religion because it violates the Equal Protection Clause
136
When is a pretrial lineup inadmissible as violative of due process?
(eg, lineup, show up, or photo identification) is violative of the ∆'s due process rights if it is unnecessarily suggestive and there is a substantial likelihood of mistaken identification
137
If an out-of-court identification is inadmissible because of a violation of the ∆'s right to counsel, a witness may make an in-court identification of the accused at trial under what circumstances?
The witness may make an in-court ID of the accused at trial if the prosecution can clearly and convincingly show that the subsequent identification stemmed from an independent "purging" source
138
Define the Sith Amendment right to counsel
The 6th Amendment provides all criminal ∆'s the automatic right to counsel once formal adversarial judicial proceedings have commenced
139
What is the effect of a suspect invoking their 5th amendment right to counsel?
Upon a suspect's clear and unambiguous request for counsel all questioning by the police must stop until the the suspect is provided w/ an attorney or reinitiates the questioning
140
What are two distinct differences between the application of the right to counsel under the Fifth and Sixth Amendments?
Fifth Amendment Right to Counsel - MUST be invoked and is NOT offense specific (applies to any custodial interrogation)
Sixth Amendment Right to Counsel - automatic and IS OFFENSE SPECIFIC
141
What does it mean that the Sixth Amendment right to counsel is offense specific?
Meaning that representation by counsel on one criminal matter does not guarantee counsel for other offenses
The ∆ must make additional requests for counsel with each separate offense
142
Once the Sixth Amendment right to counsel has attached the police may no longer do what?
Police may no longer deliberately elicit statements from the ∆ in the absence of counsel
143
Under what circumstances may the police resume questioning after a suspect's invocation of the Fifth Amendment right to counsel?
If the suspect has been released from the interrogation for at least 14 days, the police may resume questioning on the same matter after re-mirandarizing the suspect
*the suspect must be released from custody for interrogation purposes and returned to normal life for at least 14 days
-this may mean the suspect returned to prison if incarcerated at the time of the questioning (ie, their form of normal life)
144
What is a ∆'s right to counsel at police lineups before and after their indictment?
There is NO RIGHT to counsel at police lineups conducted BEFORE the accused is indicted
AFTER formal charges are filed, the ∆ has a right to have counsel present at a lineup
