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Flashcards in Crim. Pro. Deck (29):
1

Exceptions to Search Warrant Requirement - SHAPE up WISEACRE or I'll search you without a warrant.

 

STOP (articulable, reasonable suspicion) & frisk (armed & dangerous) of outer clothing
HOT pursuit
AUTOMOBILE
PLAIN view
EVANESCENT evidence


WIRETAP w/ one party’s consent
INCIDENT to lawful arrest
SCHOOL property
EXIGENT circumstances
ADMINISTRATIVE searches (e.g. Border, Airport)

CONSENT to search expressly granted
ROUTINE, non-discriminatory checkpoint stops

EAVESDROPPING on conversation with no reasonable expectation of privacy


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Exceptions to the Exclusionary Rule - U SAID G
was fruit of the poisonous tree but he's not.

USE for impeachment


independent SOURCE
ATTENUATED chain of causation between tainted evidence and illegal action
INTERVENING act of free will
inevitable DISCOVERY
 

GOOD faith of police & magistrate in issuing invalid warrant

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Warrant Exceptions

 

Warrant Exceptions : If there is no valid warrant (and the good faith exception does not apply), then to admit any evidence gathered in a resulting search, one of the warrantless search exceptions must be used. They are:

a) Search Incident to Lawful Arrest: After a lawful arrest, police can execute a search of  the contemporaneous time and place within the suspect’s wingspan (areas he has  immediate access to). If the person arrested is in a car, the entire car aside from the  trunk may be searched.
b) Automobile Exception: With Probable Cause (arising before any search begins, but  possibly after the car is stopped), police may search an entire car and containers which  may reasonably contain the item being searched for.
c) Border Searches: Searches at the point of entry of the country’s border may be  effected for any reason, and require no warrant, probable cause, or any suspicion at all.
d) Plain View Doctrine: Police may seize any evidence that is apparent to them (by any  of their senses) so long as they observe the evidence in a place that they may legally be,  and the police  have probable cause to believe the item in question is evidence of a  crime.
e) Hot Pursuit: Police may enter a dwelling or any other area so long as they are within  15 minutes of a fleeing suspect.
f) Consent: Police may conduct a search with voluntary and intelligent consent to do so.  If the police inform the consenter that they have a warrant, consent is negated. Consent  may be denied by anyone with equal rights of ownership as the consenter.
g) Stop and Frisk: A brief detention and interrogation by police needs only reasonable  suspicion and does not require a warrant or probable cause, and may include a pat  down of suspect’s clothes looking for WEAPONS ONLY.
h) Evanescent Evidence: A search may be effected without a warrant when there is a  high risk that the evidence or contraband will disappear immediately if a search does  not take place at that moment. Examples include drugs flushed down the drain or blood  needed for a BAC test. The search must not be overly intrusive.
i) Exigent Circumstances: This is the “catch-all” category. It is generally defined as being  a question of law and of fact, and requires the summation of all relevant factors  (including likelihood of establishing probable cause, the threat that the suspect poses,  the time it will take to get a warrant, the likelihood that the search is not going to be  overbroad, etc.). This category should be generally mentioned on all questions regarding  warrantless search, but only as a last resort.
 

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Public Audio Recordings

 

Public Audio Recordings: Normally, all wiretaps require a warrant. However, if a conversation takes place in public, both parties take the risk that the other person in the conversation is wired to record them, and no warrant is needed. 

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Guilty Pleas

Guilty Pleas: Guilty pleas may be withdrawn if they were involuntary, if the court had a lack of jurisdiction, if counsel represented the defendant ineffectively, or if the prosecution failed to uphold an agreed upon guilty plea

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Attenuation of Taint

 

Attenuation of Taint: Evidence gained in an unlawful manner or as the result of an illegal arrest or search may still be admitted to the court if the connection between the evidence and the illegal procedure was sufficiently distant.

Example: If the suspect was illegally arrested (because of a failure in obtaining a lawful warrant) and offered up a spontaneous statement admitting that the gun in question is buried in a certain spot in the backyard, and that gun was found, it could be admitted even though the spontaneous statement came from an illegal arrest.
 

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CONSTITUTIONAL REQUIREMENTS BINDING ON STATES

CONSTITUTIONAL REQUIREMENTS BINDING ON STATES

1. The Fourth Amendment prohibition against unreasonable searches and seizures and the exclusionary rule;
2. The Fifth Amendment prohibition against compulsory self-incrimination;
3. The Fifth Amendment prohibition against Double Jeopardy;
4. The Sixth Amendment right to a speedy and public trial;
5. The Sixth Amendment right to a trial by jury;
6. The Sixth Amendment right to confront witnesses and the right to compulsory process for obtaining witnesses;
7. The Sixth Amendment right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed; and
8. The Eighth Amendment prohibition against cruel and unusual punishment. 

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CONSTITUTIONAL RIGHTS NOT BINDING ON STATES

 

1. The right to indictment by a grand jury for capital and infamous crimes;


2. Eighth Amendment prohibition against excessive bail. However most state constitutions create a right to bail and prohibit excessive bail.

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FOURTH AMENDMENT RIGHT: ARRESTS

 

Arrest: An arrest occurs when police take a person into custody against her will for purposes of prosecution/interrogation.
Probable Cause:  Arrest must be based on probable cause—facts or knowledge to believe a crime has or is being committed.
Warrant:  Arrest warrants are generally not required prior to arresting a person in a public place.  However, police generally must have a warrant to affect a non-emergency arrest of a person in his home if the Defendant either:

o Lives there; or
o Is spending the night there.


Station House Detention: Police need probable cause for an arrest in order to compel a person to go to a police station either for interrogation (questioning) or finger printing.

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FOURTH AMENDMENT RIGHTS: SEARCH AND SEIZURE

 

Like arrests, evidentiary search and seizure must be valid under the 4th Amendment.  Reasonableness requires a warrant, except in seven circumstances (Warrantless Exceptions).  

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THE EXCLUSIONARY RULE

 

Judge-made doctrine that prohibits the introduction of evidence obtained in violation of a defendant’s Fourth, Fifth, and Sixth Amendment rights.  Under this rule, illegally obtained evidence is inadmissible in a criminal trial, and all “fruit of the poisonous tree” (evidence obtained from exploitation of the illegally obtained evidence) must also be excluded (exceptions below).

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THE FRUIT OF THE POISONOUS TREE DOCTRINE

 

Generally, all evidence obtained from the original police illegality will be excluded.  There are three ways that the government can break the chain between an original unlawful action and some supposedly derived evidence.

Exceptions to the Fruit of the Poisonous Tree Doctrine
o Independent source: Evidence from a source independent of the original illegality.
o Inevitable discovery: Police would have discovered the evidence anyway without the illegal search. Need to be established by a preponderance of the evidence that the evidence inevitably would have been discovered.
o Intervening acts: Free will by the defendant between the illegal police action and the derived information.
o Violations of the Knock and Announce Rule
o Miranda Violations: There will be no Fruit of the Poisonous Tree exclusion for real or physical evidence obtained as a result of a Miranda violation.
 

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HARMLESS ERROR TEST

 

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond a reasonable doubt that the error was harmless.

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5th  AMENDMENT

Once a defendant asserts his right to terminate the interrogation and requests an attorney, re-initiation of interrogation by the police without his attorney present violates his Fifth Amendment right to counsel.  This is a DUE PROCESS right and is invoked prior to judicial proceedings

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6th Amendment

 

Guarantees the right to the assistance of counsel in all criminal proceedings, after judicial proceedings have begun (formal charges filed). The Sixth Amendment right to counsel is offense specific.  An attorney needs to be present if the defendant is interrogated about that attorney’s case, but not unrelated matters.  Also, this is the rule even if the Defendant is NOT in custody at the time of questioning.

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PRETRIAL: PRELIMINARY HEARING

 

Defendant’s liberty can be restricted only if probable cause is found. If probable cause has already been determined, no preliminary hearing is needed. But, if probable cause has not already been determined and the arrestee is being contained, a preliminary hearing to determine probable cause must be held within a reasonable time.

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PRE-TRIAL: BAIL

 

Bail can be set no higher than is necessary to assure the defendant’s appearance at trial. 

Refusal to grant bail is appeal-able immediately.

Bail Reform Act: allows arrestees to be held without bail if they pose a danger or would fail to appear at trial.  So long as the Defendant has the opportunity for a hearing, there will not be a procedural due process violation.

 

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PRE-TRIAL: GRAND JURIES

 

Use of Grand Jury: States do not have to use a grand jury.  Some state constitutions require it.


o Proceedings:
• Conducted in secret. 
• Defendant has no right to notice, to be present, to confront witnesses, or introduce evidence. 
• Witnesses do not have the right to counsel or Miranda warnings. 
• Witness has no right to have counsel present
• Witness may become a “potential defendant” when called before grand jury (gets no warning). 
• Government can present evidence that will be inadmissible at trial
• Witness can invoke Fifth Amendment right against self-incrimination if his answer to a specific question will incriminate him.
o Exclusionary Rule does not apply

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TRIAL BY JURY

 

The Sixth and Fourteenth Amendments guarantee the right to a public trial. The press and the public have a First Amendment right to attend the trial itself, even when the defense and prosecution agree to close it. The state may constitutionally permit televising criminal proceedings over the Defendant’s objection.

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TRIAL: RIGHT TO IMPARTIAL JURY

 

In capital punishment cases, a state may not automatically exclude for cause all those who express a doubt about the death penalty. It must be determined whether the juror’s views would prevent or substantially impair performance of his duties in accordance with his instructions and oath. However, if a juror admits that s/he would give the death penalty if guilty verdict returned automatically, may be excused.

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6th AMENDMENT RIGHT TO CONFRONT WITNESSES

 

Grants a Defendant in a criminal case the right to confront adverse witnesses. Face-to-face confrontation is not required.

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5th AMENDMENT RIGHT AGAINST COMPELLED SELF-INCRIMINATION

 

The Fifth Amendment Privilege against self-incrimination can be asserted by anyone in any type of case.  Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate him, is entitled to a Fifth Amendment privilege

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GUILTY PLEAS AND PLEA BARGAINING

 

A Guilty Plea waives the right to a jury trial:
o The Supreme Court will not disturb guilty pleas after sentencing.
o The Supreme Court has adopted the contract theory of plea bargaining.
Contract theory of plea bargaining: The terms of the bargain should be revealed in the record at the plea taking and that both sides will be held to that specific deal.  

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DEATH PENALTY

 

Eighth Amendment prohibits cruel and unusual punishment. Penalties may not be grossly disproportionate to the seriousness of the offense committed.

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DOUBLE JEOPARDY

 

Procedural defense that forbids a defendant from being tried again on the same (or similar) charges following a legitimate acquittal or conviction.

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

Jeopardy does not generally attach when the proceedings are civil

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JUVENILE PROCEEDINGS

A child must be given the following rights:
o Written notice of charges;
o Assistance of counsel;
o Opportunity to confront and cross examine witnesses;
o Right not to testify; and
o The right to have guilt established by proof beyond a reasonable doubt.

No right to a jury trial here. And if the juvenile court adjudicates a child a delinquent, jeopardy has attached and the prohibition against DJ prevents him from being tried as an adult for the same behavior.
 

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FORFEITURE ACTIONS

 

Brought directly against property and are generally regarded as quasi criminal in nature. Notice and an opportunity to be heard are required before the seizure of real property unless the government can prove that exigent circumstances exist to justify immediate seizure.

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SENTENCING

 

A Defendant has a right to counsel during sentencing but no right to cross-examine

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APPEAL

 

There is no federal constitutional right to an appeal.  Conditions that make post-conviction review less accessible to the poor violate the Equal Protection Clause. Indigent defendants need not be provided with counsel during their second appeals, only first.