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Crim Flashcards

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1
Q

What do the police need to arrest you?

A

probable cause

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2
Q

What do police need to arrest you in your home?

A

Warrant

AND

Must have a reasonable belief you will within the home at the time

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3
Q

What do police need to arrest you in your friends house?

A
  1. Warrant to search friends house
  2. Warrant for your arrest

If they don’t have a search warrant for your friends house…they can still arrest you but any evidence of a crime found will be suppressed

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4
Q

To challenge a search there must be:

A

Government conduct. This can be:

(1) a cop - on or off duty OR

(2) private person being forced to do something by a cop

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5
Q

Who has standing (reasonable expectation of privacy) for to challenge a search:

A

(1) Overnight guests can contest IF you had stayed the night prior to the search

(2) Hotel room you are staying in

(3) Drivers of a rented car

(4) Borrowed a car from your friend

(5) Thief who stole a car

(6) Possessors of property, holder of a backpack or purse

^NOT if you abandon the property

(7) Owner or manager of a business can contest – NOT employee

Casual visitors to a house CANNOT contest standing (someone who shows up for a temporary drug deal)

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6
Q

Does a car passenger have standing to challenge the search of a car?

A

No (if they have no interest in the car) BUT

they can challenge the original stop

(whether the traffic violation occurred)

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7
Q

Multiple passengers in a car and they are searched:

A

If criminal evidence is found and no one claims the evidence—> they ALL can be arrested

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8
Q

Can car passengers challenge their purse being searched?

A

If you have probable cause then NO

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9
Q

What do we not have privacy interests in and therefore police can search without warrant?

A

(1) Garbage in an alley

NOT garbage on your curtilage

(2) Sound of your voice

(3) Your handwriting

(4) Bank Account Records

(5) Any shit that can be seen across open fields. EVEN IF POLICE TRESPASS

(6) Shit that can be seen from an AIRPLANE

(7) Open fields EVEN IF THEY ARE FENCE AND POLICE HOP THE FENCE TO SEE!!

(8) Odor from your car

(9) Location of your car on a public street - CANNOT SECRETLY GPS TRACK UR CAR

(10) Paint on the outside of your car

(11) DNA samples if someone is arrested for a felony

REMEMBER —-> PRIVATE INTEREST IN CELLPHONE GPS DATA. NEED A WARRANT FOR THIS

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10
Q

Can police exceed the scope of the warrant when conducting a search?

A

NO

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11
Q

search incident to a lawful arrest

A

When someone gets lawfully arrested, police get a free search

Can search D and their immediate surroundings (wingspan)

BOTH CLOSED AND OPEN SPACES

CAN ASK U TO GET OUT OF CAR

UNLESS you are secured in a police car or

THE TRUNK

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12
Q

When can police search your cell phone?

A

With a warrant

Even in an automobile search

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13
Q

When can police officer search your car without a warrant?

A

Probable cause

They find a gun or

Smell weed

= they are searching the whole car

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14
Q

Plain view

A

(1) Did the officer observe the object from a lawful vantage point?

(2) Does the officer have a right of physical ACCESS to the object?

(3) Does the officer have probable cause such that he knows the shit is illegal upon seeing it?

REMEMBER — GOAT PAINTING EXAMPLE

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15
Q

Consent Warrant Exception

A

Willing, voluntary, intelligently

Coercive environment

Someone with a smooth brain CAN be tricked into giving consent

Consent can be withdrawn at any time

Consent to come into a property?

Occupant can object and block consent if they access to ALL of
property

Minor not allowed

Roommates?

Can only consent to search of common space and your room

Landlords and hotel owners can’t give consent to search your place/hotel room

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16
Q

Hot Pursuit Warrant Exception

A

When police are in hot pursuit of a fleeing felon … they can search WHOLE premise that they run into

Crime must be a felony

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17
Q

Evanenscent Evidence

A

If evidence can disappear

Police can search without a warrant or take physical evidence on scene

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18
Q

Exigent Circumstances

A

(1) Emergency
(2) search not motivated by desire to obtain evidence
(3) nexus between emergency and search

Search should end as soon as emergency ends

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19
Q

inventory search

A

You got arrested and police took your car back to the station to search it

Cops can search entire vehicle as long as part of their NORMAL police PROCEDURE

They can search closed containers

Strip search before you enter jail

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20
Q

The standard to search a student in school:

A

Reasonable Suspicion

They can get reasonable suspicion from:

(1) Tips
(2) Direct observations that you were breaking rules; or
(3) Prior history of breaking the particular rule

They can not get reasonable suspicion through:

(1) Rumors;
(2) Thinking you’re a fuck up

They can search all of your belongings

Can not strip search search unless immediate serious shit

They can PAT YOU DOWN w reasonable suspicion

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21
Q

When are public school kids subject to drug tests?

A

If they participate in school sports

Private schools not covered

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22
Q

Airport Searches

A

You can be searched in an airport without a warrant for pretty much any reason

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23
Q

Border searches

A

Can search without any reason

Can search entire car, computer, BUT

can only strip search if reasonable suspicion

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24
Q

When can police search you at check points or roadblocks?

A

They can only set up roadblocks for issues relating to cars, their mobility, and safety of road at large

They can stop every 10th car looking for drunk drivers

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25
Do wiretaps require a warrant?
Yes, all of them Hard to get Granted by warrant through judge under highly specific circumstances
26
Fruit of poisonous Tree
Evidence obtained in violation of 4,5,6 amendments will be suppressed by judge Does not apply to violations of - State law - Civil law - Grand jury
27
Good faith defense to fruit of poisonous tree:
If officers were acting under a bad warrant BUT they reasonably thought it was a GOOD warrant *Does not apply if officer knew or should have known the warrant was deficient, judge was corrupt, OR the officer made up the basis for probable cause
28
To fight the fruit of the poisonous tree, prosecution can argue
1. Intervening Act of Free Will 2. Inevitable Discovery 3. The independent source rule
29
Difference between inevitable discovery and independent source rule?
The independent source doctrine allows for evidence to be admitted if it was obtained from a separate independent invention that is COMPLETELY UNTAINTED by the illegal conduct Independent source = evidence found illegally and then serperatly found legally Inevitable Discovery --> it would have been found anyway vis fantasy hypo
30
Intervening Act of Free Will
The D themselves will purify the illegally obtained evidence D's intervening act "broke the taint" of the illegal act
31
Illegal seized evidence and impeachment:
Illegal seized evidence can be used to impeach the creditability of the defendant's testimony Once you open the door and start talking shit or denying something --> they can bring it up D must actual take the stand
32
How to compel someone to testify:
Grant them derivative immunity Derivative --your testimony and any discoveries they make from it vs transactional --- full immunity
33
Compelled testimony in front of a grand jury:
Give you derivate immunity if forcing you to give testimonial statements Testimonial statements: statements the prosecution could use to fuck u over and establish elements of a crime
34
Can the government compel you to give your diary to the grand jury?
No because it is testimonial When it comes to the grand jury -- they can't force you to say or give them any shit that fucks you over
35
Can a prosecutor say a shitty comment about your choice to stay silent in a trial? (after Miranda warnings)
No No comment on post miranda silence The overside can comment on your failure to testify for civil cases though
36
Civil cases and self incrimination:
Show a real threat of criminal prosecution and you do not have to answer the question If you don't assert it RIGHT away in a civil hearing...it will be waived at a later criminal hearing
37
Who can assert self incrimination?
- Anyone EXCEPT corporations and partnerships If you are being compelled to incriminate yourself --> you can assert
38
How to avoid self incrimination in civil cases
(1) show a real threat of criminal prosecution Assert it right away OR It will be waived at a criminal hearing
39
Custody Analysis for Miranda
(1) Would a reasonable person feel free to leave? Focus on whether freedom of movement is restrained (2) Are the coercive pressures akin to that of a police station?
40
If someone is being interrogated in a normal traffic stop -- are you in custody?
No
41
If cops walk up to you on the street and ask you questions - are you in custody?
No
42
If you are being escorted out of your jail cell or at a probation interview - are you in custody?
No
43
Interrogation Analysis for Miranda
AI Was the police statement accusatory or investigatory? If the police statement is likely to elicit to a criminal response
44
Do you need Miranda for a voluntary statement?
No No miranda needed for spontaneous blurts -- B4 need for Miranda arises
45
Does b being on drugs or medication for mental illness invalidate waiver of miranda?
NO even if you are on those --> miranda waiver is still valid
46
3 scenarios NCBE tests on for waiver of counsel:
(1) During Miranda reading, "I might want my lawyer" Police should ask clarifying question (2) During interrogation itself, "Should I get a lawyer?" Police can ignore (3) Post Waiver of Miranda, "I waive my Miranda Rights...now I might want a lawyer" Cops can ignore
47
HYPO: Police get a confession, but Miranda Rights were not read prior to confession. Later, suspect is remirandize and confesses again. Does the confession come into evidence?
YES IF: OG failure to read miranda was not intentional
48
When someone exercises their Miranda Rights, can the police resume questioning that person?
YES WHEN (1) D makes a knowing and voluntary waiver AND (2) D has been out of custody for two weeks; OR Police must remirandize on 15th day D is in prison; OR Police must remirandize on 15th day Counsel is present and the suspect wants to talk. In all 3 instances, you must knowingly and voluntary waive your Miranda Rights
49
If Miranda warnings have been given and the case hasn't officially started...
They do not have to you tell you anything about your lawyer Will not violate Miranda Ex: Don't have to tell you your lawyer is waiting outside
50
Do you have a right to counsel at a line up?
Only after formal charges have been filed 6th amendment right to counsel at all post charge adversial proceedings Impermissibly suggestive? Violates due process
51
Is there a right to counsel in photo line ups?
No
52
How do we know our 6th amendment right to counsel has been violated?
(1) We don't get counsel for post charge line up or show up
53
What happens if our 6th amendment right to counsel is violated?
Any pre trial ID can not be used in court and any courtroom id made after that must be proven to not be tainted
54
When do you have a due process violation with a bad show up, line up, or photo ID?
When it's unnecessarily suggestive Look for improper police influence
55
What is the remedy for a due process violation with a bad show up, line up, or photo ID?
Exclude an in court identification Prosecution can defeat this by showing the witness had amble opportunity to view the defendant prior to the identification
56
Are polygraphs admissible as pre trial evidence?
No
57
when do you have a right to counsel?
At adversarial proceedings; NOT initial appearance (1) premlinary hearings (2) arraignment (3) bond hearing No right to lawyer when they take (1) fingerprints (2) blood samples (3) parole (4) probation hearings
58
When you invoke your right to remain silent:
ALL QUESTIONING MUST CEASE because Non-offense specific
59
When you invoke your right to counsel:
Questioning about that specific charge will CEASE They can still question about unrelated charges because offense specific
60
When they sneak an uncover officer to talk to you, in jail or outside, after you've been charge --- what does it violate?
You right to counsel Uncover officer must TALK to you - ask questions or brag They can't just be a listening post
61
Ineffective assistance of counsel: we need to prove
(1) The representation fell below an objective standard of reasonableness AND (2) The client was prejudged by the representation There was a reasonable probably the outcome would have been different had the lawyer not fucked up Ex: If client is not informed if they commit a felony, they will be deported.
62
Excessive bail violates...
Cruel and unusual punishment ALSO excessive civil forfeitures
63
What is the only right people have a grand jury proceeding?
Right to not self incriminate Which they can take away by giving the defendant or witness derivate use immunity
64
What is a Brady violation?
Prosecutors failure to hand over all evidence that could be good for the defendant "Failure to disclose any exculpatory evidence or impeachment evidence which helps the defendant" Violates due process Grounds for reverse of conviction We need: (1) Helpful evidence (2) Prejudice to D from not getting ti
65
When do you have a right to a jury trial?
If maximum sentence is 6 months and a day 6 months = no
66
In a criminal case, there must at least ____ jurors
6 and the verdict must be unanimous Fair cross section of community - no right to proportionality
67
Lucky strikes in jury
For cause: Unlimited Peremptory: they can strike anyone for whatever reason Batson challenge: Striking a juror based on race or gender New trial if Watson challenge succeeds
68
When can't you appeal a juror?
When the juror never SERVED on the jury
69
Remedy if a jury member is biased, googles the case, or does their own weird experiments for the case:
New trial Affidavits about what went on in jury deliberations will never be allowed
70
Who determines sentencing enhancements?
JURY
71
Can the prosecutor withdraw the guilty plea?
Yes
72
Right to confrontation: Co defendants turn on each other
Remedy: Severance If the blaming statement gets in... judge can say statement should not name co defendant to avoid prejudice UNLESS co defendant testifies and is subject to cross examination
73
When does double jeopardy attach?
CAP (after convictions) (after acquittal) (prosecutorial misconduct)
74
Double jeopardy does NOT apply when
(1) hung jury (2) manifest necessity (3) retrial after successful appeal
75
Examples of manifest necessity
(1) 2 jurors disappearing randomly (2) defense refers to inadmissible shit in opening statement (3) witness was hospitalized for a month (4) defense counsel was disbarred
76
Double jeopardy: Same offenses
Assault is a lessor included crime of robbery Battery is a lesser included crime of murder False imprisonment is a lesser included crime of kidnapping YOU CAN NOT BE CHARGED WITH BOTH OF THESE!! REMEMBER Felony murder example with attempted rape Acquitted of attempted rape but then charged with FMR
77
When should lesser included offense jury instructions be included?
When there is a rational basis jury could find for lesser offense
78
Can you bring a case in front aHow many times can you bring a case in front of a grand jury?
As many times as you want
79
Separate Sovereign Doctrine: Double Jeopardy
You can be tried in state and federal for the same crime You can be tried in 2 different states for the same crime BUT You can't be charged by the state and the state's locality for the same crime
80
When can you get an appellate court to review your case if you did not object to the mistake during trial?
Plain error If you can show plain error that affected substantial rights, appellate court will review the case
81
Harmless error
If an error was harmless beyond a reasonable doubt and did not prejudice the defendant ... the conviction will not be overturned MBE will make it clear that it was a harmless error and did not prejudice D
82
Non harmless errors during trial??
These will result in automatic reversal of the conviction on appeal 1. Not allowing someone to have a lawyer at trial 2. Not allowing someone to consult with their lawyers at trial 3. Having a weirdoes instruction on reasonable doubt that confuses the jurors 4. Racial discrimination in jury selection process 5. Not allowing someone to go pro se

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