Crim Pro

Question 1

Fourth, fifth, sixth, and eighth amendment rights

Answer 1

Fourth Amendment: prohibition against unreasonable search and seizure (1/2 of questions come from this alone)

Fifth amendment: privilege against compulsory incrimnination; privilege against double jeopardy

Sixth amendment:

• Right to speedy trial
• Right to a trial by jury
• Right to confront witnesses
• Right to assistance of counsel

Question 2

right to a speedy trail factors

Answer 2

Whether a defendant asserted his right is one factor in determining whether the defendant’s right to a speedy trial was violated. The determination is made by an evaluation of the totality of the circumstances, and the following factors should be considered: (i) length of the delay, (ii) reason for the delay, (iii) whether the defendant asserted his right, and (iv) prejudice to the defendant.

Delays caused by counsel assigned by the court to the defendant should ordinarily be attributed to the defendant and NOT to the state.

The remedy for a violation of the constitutional right to a speedy trial is dismissal with prejudice.

A defendant is NOT entitled to speedy trial relief for the period between the dismissal of charges and later refiling.

Question 3

PC

Answer 3

probable cause exists when a reasonably prudent person would believe that a suspect has committed or is going to commit a crime.

Question 4

what is a seizure

what is an arrest

Answer 4

Any exercise of control by a gov agent over a person or a thing

arrest when person taken into custody against his or her will

Question 5

what’s required for an arrest

Answer 5

Any arrest must be based on probable cause.

Question 6

Terry Stop

Answer 6

The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, the police must have a reasonable suspicion supported by articulable facts of criminal activity.

• A hunch is never enough
• Whether they have reasonable suspicion depends on totality of circumstances – analyze all facts

Question 7

informants

Answer 7

When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (including predictive information) to be sufficient.

Question 8

automobile stops

Answer 8

The police may stop a car if they have at least reasonable suspicion that the law has been violated.
- Traffic stops and police dogs: a sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.

• Moreover, in 2013, the SC held that during such a traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause for a search.
  o But note: in companion case, the SC also held that the police without probable cause can’t use the drug sniffing dog outside of the home of a suspected drug dealer

Question 9

car stop - seizure of all occupants?

Answer 9

An automobile stop constitutes a seizure of all occupants (driver and any passengers).

Question 10

Informational/checkpoint roadblocks

may order occupants out of car?

are pretextual stops allowed?

Answer 10

If the police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional.

• DUI checkpoints valid for safety of public
• Must be neutrally applied -> can’t pick and choose who you stop

yes

yes; An officer’s ulterior motive for stopping an automobile is irrelevant so long as the stopping of the car was legal.

Question 11

what is gov conduct

Answer 11

• Gov conduct is the publicly paid police – on or off duty or any private individual acting at the direction of the public police
• Privately paid police actions do NOT constitute governmental conduct UNLESS they are deputized with the power to arrest you.

Question 12

standing to object to a search

Answer 12

In order to object to a governmental search, one must have standing to object to the search
In order to have standing, a person must have a reasonable expectation of privacy.

(1) you own the premises searched
(2) you live on the premises searched, whether you have ownership interest or not
(3) overnight guests have standing to object to the legality of the search of the place they are staying

Question 13

when do you not have a reasonable expectation of privacy

Answer 13

You have NO expectation of privacy and therefore no standing for anything that you hold out to the public every day.

Question 14

two requirements for facially valid warrant

- what is standard for probable cause and informants?

Answer 14

There are two core requirements for a facially valid warrant:

1. Probable cause
   a. Standard: a fair probability that contraband or evidence of a crime will be found in the area searched based on totality of circumstances
2. Particularity
   a. The warrant must state with particularity the place to be searched and things to be seized

If an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of circumstances.
- An informant’s credibility (how many times have we used him) and basis of knowledge (how does he know these things) are all relevant factors in making this determination

• A valid warrant can be based in part on an informant’s tip even though that informant is anonymous (but cannot be solely based on it)

Question 15

may a warrant be anticipatory?

Answer 15

A warrant can predict when illegal items may be a suspect’s home/office and the items need not be on the premises at the time the warrant is issued.

Question 16

rules for execution to a search warrant

Answer 16

Only the police (and not a private citizens) can execute a search warrant

Moreover, when executing a warrant in one’s home, the police may not be accompanied by any third parties (unless the third party is there to aid in identifying stolen property)

knock and announce rules

must not be unreasonable delay

Question 17

four steps for searches with warrant

Answer 17

(1) PC
- affidavit shows fair probability that seizable evidence will be found on person or premises
- describes with sufficient particularity and detail the place to be searched and items to seized

(2) neutral and detached magistrate

(3) proper execution
- knock and announce rules
- without unreasonable delay

(4) good faith exception applies if warrant is invalid

Question 18

exceptions to warrant requirement

Answer 18

1. search incident to lawful arrest
2. stop and frisk
3. plain view
4. automobile
5. consent - voluntary
6. exigent circumstances

Question 19

search incident to lawful arrest

automobile arrest

Answer 19

search lawful if

(1) arrest is lawful
(2) arrest and search are contemporaneous in time and place
(3) within geographic scope - person and person’s wingspan

search incident to arrest & automobiles - arrest of interior of the auto is lawful if

(1) arrestee is unsecured and still may gain access to the interior of the vehicle
(2) the police reasonably believe evidence of the offense for which the person is arrested may be found in the vehicle.

Question 20

automobile exception

Answer 20

In order for the police to search anything or anybody and fall under the automobile exception they must have probable cause.
- Gant rule: you can’t search trunk; here you can

Notes: if - BUT ONLY IF – before searching anything anybody the police have probable cause, then they can search the entire car. This includes the entire interior compartment, and the trunk. Moreover, if there is probable cause, the police may open (without a warrant) any package, luggage, or other container which could reasonably contain the item they had probable cause to look for whether that package, luggage, or other container is owned by the passenger or the driver.

The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped BUT the probable cause must arise before anything or anybody is searched.

Question 21

plain view exception to search without warrant

Answer 21

• (1) To constitute a valid plain view seizure the police officer must be legitimately present at the time at the location where he or she does the viewing of the item seized.
  o If an officer runs in and see drugs  not legitimately present
  o Must have legal access
• (2) It must be immediately apparent that the item is contraband or a fruit of a crime.

Question 22

consent - voluntary

Answer 22

• For consent to be valid, it must be voluntary.
  o Police say we have a warrant, you say okay come in. Warrant turns out to be invalid. Saying they have a warrant negates consent.
• Third Party Consent: where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls.
  o Note: Anyone with apparent authority can consent
  o Note: if a co-occupant who does not consent to a search is removed from the premises for a reason unrelated to the refusal (e.g., a lawful arrest), the police may search upon the consent of the other occupant.

Question 23

terry stop - search w/o warrant

Answer 23

A Terry stop is a brief detention for the purpose of investigating suspicious conduct.

The legal standard for stopping: reasonable suspicion.

Frisk: if the officer reasonably believes from the plain feel that something is a weapon or contraband, it is admissible.

Question 24

exigent circumstances - search w/o warrant

Answer 24

Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant.

Hot pursuit of a fleeing felon. >15 minutes behind fleeing felon, not a valid hot pursuit exception.

Emergency Aid/Community Caretaker Exception
This exception justifies a warrantless search if the officer faces an emergency that threatens the healthy or safety of an individual or the public.

Question 25

investory searches

Answer 25

Inventory Searches: before incarceration of an arrestee, the police may search (1) the arrestee’s personal belongings and/or (2) the arrestee’s entire vehicle.
- Applies to closed containers in vehicle

Question 26

school searches

Answer 26

A school search will be held to be reasonable only if:

1. It offers a moderate chance of finding evidence of wrongdoing; and
2. The measures adopted to carry out the search are reasonably related to the objectives of the search; and
3. The search is not excessively intrusive.

Question 27

wiretapping and eavesdropping

Answer 27

General rule: all wiretapping and eavesdropping requires a warrant

Warrant will be issued if there is PC, suspected persons can be overheard, conversations described with particularity, limited to short time and terminated, and intercepted.

Question 28

shocking materials rule

Answer 28

Any act that “shocks the conscience” used to obtain evidence is unconstitutional.
- Shocking inducement: if a crime is induced by official actions that shock the conscience, any conviction stemming therefrom is unconstitutional

Question 29

Fifth Amendment - Miranda rights ; when must they be given what must be said

Answer 29

The Fifth Amendment contains privilege against self-incrimination that protects compelled testimonial evidence.

Miranda warnings are required when suspect is in custodial interrogation. Suspect must be given the following information:

(1) you have the right to remain silent
(2) anything you say can be used against you in court
(3) you have the right to an attorney
(4) if you can’t afford an attorney, one will be appointed for you if you so desire.

Question 30

who has to interrogate to warrant need for Miranda warnings

When do they have to be given (2 parts)

Answer 30

Miranda warnings only apply to interrogation by the publicly paid police, it does not apply where interrogation is an informant whom the defendant does not know is working for the police.

Miranda warnings are required when a suspect is in custodial interrogation. The legal standard for custody is that a reasonable person would not feel free to leave.

Under the Fifth Amendment, interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect.

not required where public safety endangered

Question 31

when does double jeopardy attach

Answer 31

Jeopardy attaches in a jury trial when the jury is sworn. In a bench trial, jeopardy attaches when the first witness is sworn.

Subsequent trial for the same or lesser included offense is generally barred.
- two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not.

Jeopardy does not generally attach when the proceedings are civil.

Other exceptions: hung jury, manifest necessity aborts first trial, successful appeal of conviction unless for insufficient evidence for guilt

Question 32

sixth amendment right to counsel

what does it include, what does it not include

what is the remedy for violation of d’s sixth amendment right to counsel

Answer 32

Defendant is entitled to an attorney during all critical stages of a prosecution after formal proceedings have begun.
- offense specific

Some key stages where applicable:

1. Post-indictment interrogation
2. Preliminary hearings to determine probable cause to prosecute
3. Arraignment
4. Post-charge lineups
5. Sentencing
6. Felony trials

Some key stages where NOT applicable:

1. Taking of blood samples
2. Taking of handwriting samples
3. Pre-charge lineups
4. Brief recess during d’s testimony at trial
5. Parole and probation revocation proceedings
6. The taking of fingerprints
7. Photo identification

• The D was entitled to a lawyer at trial, the failure to provide counsel will result in an automatic reversal of the conviction.
• However, at non-trial proceedings (such as post-charge lineups), the harmless error test will apply.

Question 33

due process standard for pre-trial identification techniques

what is the remedy for uncon pre-trial identification

Answer 33

Certain pre-trial identification techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law.

The remedy for an unconstitutional pre-trial identification is to exclude the in-court identification…unless the State can show that it had an adequate independent source for that in-court identification (independent of that bad line-up).
- The most common independent source is that the victim or witness had an adequate opportunity to observe the D at the time of the crime.

Question 34

prosecutor’s duty to disclose exculpatory information

Answer 34

Before trial, a prosecutor has a duty to disclose exculpatory information.

A prosecutor’s failure to disclose evidence, whether willful or inadvertent, violates the DPC and may be grounds for reversal of a conviction if:

1. The evidence is favorable to the d, and
2. Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed.

Question 35

right to jury trial - 3 points

Answer 35

serious offenses - The constitutional right to jury trial attaches anytime the defendant is tried for an offense for which the max authorized sentence exceeds six months. If the max authorized sentence is up to or including six months, there is no constitutional right to a jury trial.

number and unanimity - The minimum number of jurors permissible is six.
Regardless of the number of jurors used (6-12), the verdict must be unanimous.

right to impartial jury - You have the right to have the jury pool reflect a fair cross-section of the community. BUT you have no right to have the empaneled jury reflect a fair cross section of the community.

• Impair or prevent performance standard: the standard to determine whether a prospective juror should be excluded for cause is whether the juror’s views would prevent or substantially impair the performance of her duties.
• peremptory challenges based on gender or race violation EPC
• views on death penalty must not subst impair perforamance of her duties
• sentence enhancement facts must be submitted to the jury and proved beyond a reasonable doubt; jury trial right violated if judge makes determination

Question 36

right to counsel - right to defend oneself; effective vs. ineffective counsel

Answer 36

Waiver of Counsel/Right to Defend Oneself

• A defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent, and he is competent to proceed pro se.
• Notes: a defendant can be found mentally competent to stand trial, yet incompetent to represent himself, as determined by the trial judge’s discretion.

Ineffective Assistance of Counsel

• There must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different.
• Typically, such a claim can only be made out by specifying particular errors of trial counsel.

Question 37

right to confront witnesses

Answer 37

The absence of face-to-face confrontation between the d and accuser do not violate the Sixth Amendment when preventing such confrontation serves an important public purpose, and the reliability of the witness testimony is otherwise assured.
(like kid who was abused  they’ll have kid testify in separate room)
- A defendant who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation

also remember no prior testimonial evidence unless unavailable and opp to cross

Question 38

use of prior co-confession

Answer 38

A confession implicating a co-defendant is prohibited and inadmissible at their trial.
Under the CC, prior testimonial evidence may not be admitted unless:
(1) declarant is unavailable, and
(2) the defendant had an opportunity to cross-examine the declarant at the time the statement was made.
(3) it’s being used to rebut claim that confession was taken involuntarily

Question 39

exclusionary rule

Answer 39

Exclusionary rule: a remedy of American constitutional procedure whereby someone who has been the victim of an illegal search or a coerced confession can (among their other remedies) have the product of that illegal search or that coerced statement excluded form any subsequent criminal prosecution. The doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality.

Exceptions/limitations

1. Exclusion does not apply to grand jury proceedings.
   a. A grand jury witness may be compelled to testify based on illegally seized evidence.
2. Exclusion is not an available remedy in civil proceedings
3. Exclusion is not an available remedy in parole revocation proceedings.
4. Exclusion does not apply to the use of excluded evidence for impeachment purposes.
   a. Since 1980, ALL illegally seized evidence may be admitted to impeach the credibility of the d’s trial testimony.
   b. Note: only the defendant’s trial testimony may be impeached – not the testimony of other defense witnesses.
5. Exclusion is not an available remedy for violations of the knock and announce rule in the execution of search warrants.

Exceptions to fruit of poisonous tree
The government can break the chain between an original, unlawful police action and some supposedly derived piece of evidence:
1. The government could show that it had an independent source for that evidence, independent of that original police illegality.
2. Inevitable discovery: the police would have inevitably discovered this evidence anyway.
3. Intervening acts of freewill on the part of the defendant.
a. Person illegally arrested but returns the next day and confesses; confession is admissible.

Question 40

harmless error for improperly admitted evidence

Answer 40

A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial.

• On appeal, the court will apply harmless error test: conviction will be upheld if the conviction would have resulted despite the improper evidence.
• On appeal, the gov bears the burden of showing beyond a reasonable doubt that the admission was harmless.

Question 41

good faith exception to exclusionary rule - relying on defective warrant

Answer 41

The general rule is that an officer’s good faith reliance on an invalid arrest or search warrant overcomes defects with the probable cause or particularity requirements.

• Four exceptions:
  1. The affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it.
  a. Warrant is “on good info, they do believe that there are drugs are Lohan’s house”  not enough
  2. The affidavit underling the warrant is so lacking in particularity that no reasonable officer would have relied on it.
  3. The police officer or prosecutor lied to or misled the magistrate when seeking the warrant
  4. If the magistrate is biased, and therefore has wholly abandoned his or her neutrality

Question 42

8th amendment

Answer 42

no cruel and unusual punishment

punishment must be appropriate to offense
death penalty doesn’t violate 8th
jury must consider mitigating circ, but not impact on family
can be imposed for felony murder - reckless ind
cannot be imposed on disabled or minor

status crimes violate but no violation for imposition of acts

Question 43

14th amend - due process

Answer 43

(1) burden of proof on pros is to prove guilt beyond reasonable doubt; states may impose burden on d to prove affirmative defenses
(2) identification is unnecessarily suggestive and there is a substantial likelihood of misidentification
(3) confession must not be made under compulsion/duress