Crim Pro Flashcards

Question

Crim Pro After stopping a car, can the police order the occupants to get out?

Answer 1

Yes, if the police have lawfully stopped a car, in the interest of officer safety, the officer may order the occupants to get out And if the officer reasonably believes the detainees are armed, officer may frisk the occupants and search the passenger compartment for weapons, even after the officer has ordered the occupants out

Answer 2

Yes, if the officer reasonably believes that the detainees are armed, officer may frisk the occupants and also search the passenger compartment for weapons, even after the officer has ordered the occupants out

Answer 3

Yes, if the officer reasonably believes that the detainees are armed, they can search the passenger compartment for weapons, even if the occupants have already been ordered out of the car

Answer 4

No, pretext doesn't matter as long as there was probable cause to believe the driver violated a traffic law - then they can pull you over even if the real reason is they think you were shady or dealing drugs or something - as long as the police believe you violated a traffic law, they can pull you over even if their real motivation is something else

Answer 5

An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution But evidence that is gathered as a result of an unlawful arrest may not be able to be used at trial as fruit of the poisonous tree

Answer 6

No, they have to have reason to believe the suspect is in the home to be able to go in it, or there needs to be an exigent circumstance - the arrest warrant itself doesn't give you free reign to go into the suspect's home

Answer 7

(1) Is there government conduct? (2) is there standing (a reasonable expectation of privacy)? (3) Is there a valid warrant? (4) If not, are there exceptions ot the warrant requirement?

Answer 8

The Fourth Amend generally protects only against gov't conduct Police officers, other government agents, or private individuals acting at the direction of the public police Fourth Amend doesn't protect against searches by privately paid police unless they are deputized as officers of the public police - store security guards, subdivision police, and campus police

Answer 9

(1) search or seizure by a gov't agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy; OR (2) physical intrusion by the government into a constitutionally protected area to obtain information

Answer 10

(1) Incident to constitutional arrest (2) Automobile search (3) Plain view (4) Consent (5) Stop and frisk (6) Hot pursuit, exigent circumstances, evanescent evidence, emergency aid

Answer 11

Based on probable cause, precise on its face, and issued by a neutral and detached magistrate

Answer 12

Without unreasonable delay; after announcement (unless officers or evidence would be endangered); person or place searched or seized within scope of warrant

Answer 13

A person must have their own reasonable expectation of privacy with respect to the place searched or the item seized Based on the totality of the circumstances But a person always has a reasonable expectation of privacy any time: - The person owned or had a right to possession of the place searched - The place searched was in fact their home, whether or not they owned or had a right to possession of it (for ex: a grandchild living at a grandparent's home); OR - The person was an overnight guest of the owner of the place And sometimes: when the person owns the property seized; if a person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched

Answer 14

Right to possession; their home; overnight guest The person owned or had a right to possession of the place searched The place searched was in fact their home, whether or not they owned or had a right to possession of it (for ex: a grandchild living at a grandparent's home); OR The person was an overnight guest of the owner of the place

Answer 15

No, anything that can be seen across open fields is a thing held out to the public and you have no standing to bring a claim if someone sees something criminal

Answer 16

Probable cause and particularity Probable cause: a warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed Particularity: warrant must describe with particularity the place to be searched and items to be seized; if it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail

Answer 17

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed Officers have to submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers' conclusions

Answer 18

For an affidavit for a warrant based on an informer's tip, it must meet the totality of the circumstances test Under this test, the informant's reliability and credibility or their basis for knowledge are relevant factors in making this determination The informer's identity generally need not be revealed

Answer 19

In short: false statement; intentionally or recklessly; and material A false statement was included in the affidavit by the affiant (the officer applying for the warrant) The affiant intentionally or recklessly included the false statement; AND The false statement was material to the finding of probable cause Defendant is very rarely successful with these challenges

Answer 20

Yes, evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause Good faith exception applies only if the police obtained a warrant and it is invalid Does not apply if the police failed to obtain a warrant at all

Answer 21

Warrant must describe with particularity the place to be searched and items to be seized; if it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail

Answer 22

The magistrate who issues the warrant must be neutral and detached (for ex: a state attorney general is not neutral)

Answer 23

Only police (not private citizens) can execute a warrant, and it must be executed without unreasonable delay Police must knock and announce their purpose, and wait a reasonable time for admittance (unless the officer has a reasonable suspicion, based on the facts, that announcing would be dangerous or futile or would inhibit the investigation) Police may not be accompanied by any third parties unless the third parties are present to aid in identifying stolen property Scope of search is limited to what is reasonably necessary to discover the items described in the warrant Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not it was specified in the warrant Violations of the knock and announce rule will NOT result in the suppression of evidence otherwise properly obtained - exclusionary rule doesn't apply May detain occupants of the premises during a search, but warrant doesn't authorize the police to search persons found on the premises who were not named in the warrant Nor does warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed But, if a police officer has reason to believe any person present is armed and dangerous, officer may conduct a Terry pat down for weapons

Answer 24

Typically no, unless the third party is there to aid in identifying stolen property

Answer 25

Scope of search is limited to what is rsbly necessary to discover the items described in the warrant Police may seize any contraband, fruits, instrumentalities of crime that they discover, whether or not it was specified in the warrant

Answer 26

No, violations of the knock and announce rule will NOT result in the suppression of evidence otherwise properly obtained - exclusionary rule does not apply here

Answer 27

May detain occupants of the premises during a search, but warrant doesn't authorize the police to search persons found on the premises who were not named in the warrant Nor does warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed But, if a police officer has reason to believe any person present is armed and dangerous, officer may conduct a Terry pat down for weapons

Answer 28

All warrantless searches conducted by law enforcement officers are unconstitutional unless they fit into one of six recognized exceptions to the warrant requirement

Answer 29

Incident to a constitutional arrest (one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence Police may make protective sweep of the area if they believe accomplices may be present Search must be contemporaneous in time and place with the arrest But, at least with respect to searches of cars, the term "contemporaneous" doesn't necessarily mean "simultaneous" Thus, for ex, police may search the interior of a car after securing a recent occupant of the automobile in a squad car if they have reason to believe that the vehicle contains evidence of the crime for which the recent occupant was arrested If arrest is unconstitutional, any search incident to that arrest is also unconstitutional Police may conduct a search of the passenger compartment of a car incident to arrest only if at the time of the search: - The arrestee is unsecured and still may gain access to the interior of the vehicle; OR - The police rsbly believe that evidence of the offense for which the person was arrested may be found in the vehicle In assessing the validity of a search incident to arrest involving things that didn't exist when Fourth Amend was created, court will balance the degree to which the search incident to arrest intrudes upon a person's privacy against the degree to which the search is needed to promote legit gov't interests

Answer 30

yes if they believe accomplices may be present

Answer 31

Any search incident to arrest is also unlawful

Answer 32

Police may conduct a search of the passenger compartment of a car incident to arrest only if at the time of the search: (1) The arrestee is unsecured and still may gain access to the interior of the vehicle; OR (2) The police rsbly believe that evidence of the offense for which the person was arrested may be found in the vehicle

Answer 33

Court will balance the degree to which the search incident to arrest intrudes upon a person's privacy against the degree to which the search is needed to promote legit gov't interests Contemporaneous with an arrest for intoxicated driving, police may administer a warrantless breath test to determine the arrestee's alcohol levels but may not administer a warrantless blood test Police may examine the physical attributes of a person's cell phone upon arrest, but can't examine the data within the phone without a warrant

Answer 34

At police station, police may make an inventory search of the arrestee's belongings pursuant to established department procedure Similarly, police may make an inventory search of an impounded vehicle

Answer 35

If police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might rsbly contain the item for which they had probable cause to search If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later However, if vehicle is parked within the curtilage of a suspect's home, the police may not search the vehicle without a warrant If the police have probable cause to believe that the vehicle itself is contraband, they may seize it from a public place without a warrant Search may extend to packages belonging to a passenger If police have probable cause only to search a container in a vehicle (for ex: luggage recently placed in the trunk), they may search only the container, not other parts of the vehicle 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 anyone is searched

Answer 36

So the search incident to arrest revolves around the person, and the search ability arises only after there was probable cause to arrest a person and that person was arrested - then you can search - but you can only search the car in two situations: if the person is unsecured, you can search the passenger compartment; or if you have reasonable belief that you will find evidence of the crime for which the person was arrested in the car, you can search the passenger compartment - and this search incident to arrest is limited to the passenger compartment no matter what In contrast, with the automobile exception, it's the car that the search revolves around - the police have probable cause to believe the car itself contains evidence of criminal activity - so you have to have probable cause for a certain crime, but then you can search the whole car, not just the passenger compartment - and it technically doesn't matter if you arrest anyone - they need probable cause of evidence of a crime being in the car, and then the search is fine, and it doesn't matter if you ultimately arrest anyone - as long as you had that PC to search the car, the search is fine And with stop and frisk, if a vehicle is properly stopped for a traffic violation and the officer rsbly believes that a driver or pasenger may be armed and dangerous, the police may: (1) conduct a frisk of the suspected person, and (2) search the vehicle, so long as it is limited to the areas in which weapon may be placed

Answer 37

The police may make a warrantless seizure when they: (1) are legitimately on the premises; (2) discover evidence, fruits or instrumentalities of a crime, or contraband; (3) see such evidence in plain view; AND (4) have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or a frauit or instrumentality of crime

Answer 38

A warrantless search is valid if the police have voluntary consent Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent Scope of search may be limited by scope of the consent, but generally extends to all areas to which a rsble person under the circumstances would believe it extends If police come to your house saying they have a warrant, and then ask if they can look around, and you say yes - that is not consent - there can never be proper consent when they say they have a warrant Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal, the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent

Answer 39

No, knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent

Answer 40

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal, the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent And be careful to check if the co-occupant has the rsbly apparent authority to consent to a certain part of the house - for ex, if the person always kept their door locked and the consentor can't really go in there, then they don't actually have authority to consent to a search of that room

Answer 41

A Terry stop is a brief detention for the purpose of investigating suspicious conduct A Terry frisk is a pat down of the outer clothing and body to check for weapons A police officer may stop a person without probable cause for arrest if they have a rsble articulable suspicion of criminal activity Officer may require the detainee to state their name, and if the officer also rsbly believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk Seeing something suspicious for criminal activity justifies the stop (rsble articulable suspicion); a frisk will only be justified if the officer rsbly thinks that the suspect has a weapon During a pat down, an officer may reach into the suspect's clothing and seize any item that the officer rsbly believes, based on its "plain feel," is a weapon or contraband, and such items are admissible as evidence So you can only frisk if you have reason to believe they are armed, but once you're frisking, if you plain feel contraband, you can take that If probable cause arises during an investigatory stop, the detention can become an arrest and the officer can then conduct a full search incident to that arrest If a vehicle is properly stopped for a traffic violation and the officer rsbly believes that a driver or pasenger may be armed and dangerous, the police may: (1) conduct a frisk of the suspected person, and (2) search the vehicle, so long as it is limited to the areas in which weapon may be placed

Answer 42

If a vehicle is properly stopped for a traffic violation and the officer rsbly believes that a driver or pasenger may be armed and dangerous, the police may: (1) conduct a frisk of the suspected person, and (2) search the vehicle, so long as it is limited to the areas in which weapon may be placed

Answer 43

Evanescent evidence is evidence that might disappear quickly if the poilce took the time to get a warrant Ex: police can scrape under a suspect's fingernails without getting a warrant because if he waited until he had a warrant, the suspect could have washed his hands and gotten rid of the evidence

Answer 44

Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling However, if fleeing person is a misdemeanor suspect, their flight doesn't always justify warrantless entry into a home Officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies warrantless entry Rule of thumb: if police are not within 15 minutes of the fleeing felon, it is not hot pursuit that falls under the exception If police are truly in hot pursuit of a fleeing felon, they can enter anyone's home without a warrant, and any evidence they see in plain view will be admissible

Answer 45

Police may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public However, emergency aid exception doens't permit an officer to conduct a warrantless search of a person's home

Answer 46

Search incident to lawful arrest (need PC for arrest) and the automobile exception

Answer 47

Only reasonable grounds for the search are necessary - not a warrant or probable cause A school search will be held to be reasonable only if: (1) it offers a moderate chance of finding evidence of wrongdoing (2) the measures adopted to carry out the search are rsbly 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

Answer 48

(1) there is a showing of probable cause, (2) the suspected persons involved in the conversations to be overheard are named, (3) the warrant describes with particularity the conversations that can be overheard, (4) the wiretap is limited to a short period of time, (5) the wiretap is terminated when the desired information has been obtained, AND (6) return is made to the court, showing what conversations have been intercepted

Answer 49

The unreliable ear: speaker assumes risk that the other person to whom they are speaking consents to gov't monitoring or is an informer Uninvited ear: speaker has no Fourth Amend claim if they make no attempt to keep conversation private

Answer 50

The harmless error test applies - means the conviction need not be overturned if there is other overwhelming evidence of guilt Also while not admissible, can be used to impeach defendant's contrary trial testimony

Answer 51

Based on the totality of the circumstances

Answer 52

All critical stages of a prosecution after judicial proceedings have begun Prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant waived their right to counsel

Answer 53

Fifth Amend right to counsel Sixth Amend comes after the defendant is charged

Answer 54

Yes, offense specific. So even though a defendant's Sixth Amend rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amend right to counsel But interrogation might violate the defendant's Fifth Amend right to counsel under Miranda Two offenses will be considered different if each requires proof of an additional element that the other crime does not require

Answer 55

Waiver must be knowing and voluntary Doesn't require presence of counsel - at least if counsel has not actually been requested by the defendant but was appointed by the court

Answer 56

At nontrial proceedings, the harmless error rule applies But if defendant was entitled to a lawyer at trial, the failure to provide counsel results in an automatic reversal of the conviction

Answer 57

When a suspect is in custodial interrogation, must be given prior to interrogation Required only if the detainee knows that they are being interrogated by a gov't agent When it's a civilian or informant working for the police, may need to be given - if detainee knows of their connection with police, may need to be given There needs to be custody which is a two-step process: First step requires the court to determine whether a rsble person under the circumstances would feel that they were free to terminate the interrogtation and leave If met, next step considers whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda The more a setting resembles a traditional arrest, the more likely the Court will consider it to be custody and require Miranda Interrogation requirement - includes any words or conduct by the police that they should konw would likely elicit an incriminating response from the detainee So Miranda warnings are not required before spontaneous statements are made by a detainee

Answer 58

Some version of: Person has the right to remain silent Anything the person says can be sued against them in court The person has the right to presence of an attorney If the person cannot afford an attorney, one will be appointed for them if they so desire

Answer 59

In short: whether they feel free to leave; inherently coercive pressures First step requires the court to determine whether a rsble person under the circumstances would feel that they were free to terminate the interrogtation and leave If met, next step considers whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda

Answer 60

Includes any words or conduct by the police that they should konw would likely elicit an incriminating response from the detainee

Answer 61

Do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney Do nothing: if detainee doesn't respond, Court won't presume a waiver but also won't presume a right to remain silent - police may continue to question Waive rights: to be valid, gov't must show by a preponderance of the evidence that the waiver was knowing and voluntary based on totality of the circumstances Asserting right to remain silent: must be explicit, unambiguous, and unequivocal; police must scrupulously honor this request; but - police may be able to re-question detainee about a different crime after a break if fresh warnings are administered Asserting right to counsel: if detainee unambiguously indicates they wish to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: (1) then waives their right to counsel or (2) is released from the custodial interrogation back to their normal life and 14 days have passed since release; request must be specific; allowing detainee to consult with counsel and then resuming interrogation after counsel has left generally doesn't satisfy right to counsel

Answer 62

Police may continue questioning This is neither a waiver nor an assertion of their right to remain silent

Answer 63

Must be knowing and voluntary based on the totality of the circumstances If you receive warnings and then choose to answer questions, that's probably a sufficient waiver

Answer 64

Must be explicit, unambiguous, and unequivocal; police must scrupulously honor this request But - police may be able to re-question detainee about a different crime after a break if fresh warnings are administered

Answer 65

If detainee unambiguously indicates they wish to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: (1) then waives their right to counsel or (2) is released from the custodial interrogation back to their normal life and 14 days have passed since release Request must be specific Allowing detainee to consult with counsel and then resuming interrogation after counsel has left generally doesn't satisfy right to counsel

Answer 66

Generally, evidence obtained in violation of Miranda is inadmissible at trial under the exclusionary rule But may be used to impeach the defendant's trial testimony, like with evidence obtained in violation of Sixth Amend Subsequent confession: if police obtain a confession from a detainee without giving them Miranda warnings, and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the nature of the questioning was intentional - but a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and failure to give Miranda warnings seemed inadvertent Nontestimonial fruits: if police don't give Miranda warnings and during interrogation, detainee gives the police information that leads to nontestimonial evidence, evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence probably will not be suppressed

Answer 67

If police obtain a confession from a detainee without giving them Miranda warnings, and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the nature of the questioning was intentional But a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and failure to give Miranda warnings seemed inadvertent

Answer 68

If police don't give Miranda warnings and during interrogation, detainee gives the police information that leads to nontestimonial evidence, evidence will be suppressed if the failure was purposeful But if the failure was not purposeful, the evidence probably will not be suppressed

Answer 69

Interrogation without Miranda warnings is allowed when it is rsbly prompted by a concern for public safety Ex: locating a hidden gun that could cause injury to innocent people

Answer 70

Suspect has right to presence of an attorney at any post-charge lineup or show up Accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints

Answer 71

If the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification

Answer 72

No, a lineup doesn't involve compulsion to give "testimonial" evidence, so a suspect's Fifth Amend right against compelled self-incrimination does not apply

Answer 73

Exclusion of the in-court identification But a witness may make an in-court identification even if other identifications were unconstitutional if it comes from an independent source Ex: opportunity to observe at the time of the crime Admissibility of ID evidence determined at suppresssion hearing - gov't bears burden of proving that: (1) counsel was present; (2) the accused waived counsel; or (3) there is an independent source for the in-court ID; D must prove an alleged due process violation

Answer 74

Prohibits introduction of evidence obtained in violation of D's Fourth, Fifth, and Sixth Amend rights Unconstitutionally obtained evidence is inadmissible at trial, and all fruit of the poisonous tree must also be excluded unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct Exceptions to fruit of the poisonous tree doctrine: - The fruits derived from statements obtained in violation of Miranda - Evidence obtained from a source independent of the original illegality - Evidence for which the connection between the unconstitutional police conduct and the evidence is remote or has been interrupted by some intervening circumstance, so that the causal link between the police misconduct and the evidence is broken (attenuation) - Attenuation includes intervening acts of free will on the part of the defendant - Inevitable discovery - prosecution can show that the police would have disocvered the evidence whether or not the police acted unconstitutionally - Violations of the knock and announce rule Rule doesn't apply when the police arrest someone erroneously but in good faith thinking that they were acting pursuant to a valid arrest warrant, search warrant, or law Four exceptions to good faith reliance on a defective warrant: (1) affidavit underlying that warrant is so lacking in probable cause that no rsble police officer would have relied on it (2) affidavit underlying the warrant is so lacking in particularity that no rsble officer would have relied on it (3) the police officer or prosecutor lied to or misled the magistrate when seeking the warrant (4) the magistrate is biased and therefore has wholly abandoned their neutrality

Answer 75

Fruits derived from statements in violation of Miranda Evidence obtained from independent source Attenuation: causal link between police misconduct and evidence is broken Defendant's intervening act of free will Inevitable discovery Violations of knock and announce rule

Answer 76

No, doesn't apply to grand jury proceedings unless evidence was obtained in violation of fed wiretapping statute Also doesn't apply to parole revocation proceedings, civil proceedings, or where evidence was obtained contrary only to state or agency laws

Answer 77

Rule doesn't apply when the police arrest someone erroneously but in good faith thinking that they were acting pursuant to a valid arrest warrant, search warrant, or law Four exceptions to good faith reliance on a defective warrant: (1) affidavit underlying that warrant is so lacking in probable cause that no rsble police officer would have relied on it (2) affidavit underlying the warrant is so lacking in particularity that no rsble officer would have relied on it (3) the police officer or prosecutor lied to or misled the magistrate when seeking the warrant (4) the magistrate is biased and therefore has wholly abandoned their neutrality

Answer 78

Four exceptions to good faith reliance on a defective warrant: (1) affidavit underlying that warrant is so lacking in probable cause that no rsble police officer would have relied on it (2) affidavit underlying the warrant is so lacking in particularity that no rsble officer would have relied on it (3) the police officer or prosecutor lied to or misled the magistrate when seeking the warrant (4) the magistrate is biased and therefore has wholly abandoned their neutrality

Answer 79

If the defendant takes the stand at trial, an otherwise voluntary confession taken in violation of Miranda is admissible for impeachment, and evidence obtained from an illegal search may be used by the prosecution to impeach the defendants', but not others', statements

Answer 80

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the gov't can show beyond rsble doubt that the error was harmless Conviction will be upheld if it would have resulted despite the improper evidence

Answer 81

If probable cause for arrest has not already been determined (by warrant or GJ indictment) and there are significant constraints on an arrestee's liberty, a preliminary hearing to determine probable cause must be held within a rsble time

Answer 82

Exclusion of minorities

Answer 83

Defendant (GJ witness) has no right to have counsel present during their GJ testimony GJ may consider evidence that would be excluded at the criminal trial Defendant (GJ witness) must appear if called, although they can refuse to answer specific questions on the grounds that they may incriminate them

Answer 84

Made by an evaluation based on the totality of the circumstances. Factors considered are the length of delay, reason for delay, whether D asserted their right, and prejudice to the D (LRAP) Remedy for violation is dismissal with prejudice Right to speedy trial doesn't attach until D has been arrested or charged

Answer 85

Dismissal with prejudice

Answer 86

Doesn't attach until the D has been arrested or charged

Answer 87

Gov't has duty to disclose material, exculpatory evidence to the defendant Failure to disclose violates the DPC and is grounds for reversing conviction if D can prove that: (1) evidence is favorable to the D because it either impeaches or is exculpatory; AND (2) prejudice has resulted - there is a rsble probability that the result of the case would have been different if the undisclosed evidence had been presented at trial

Answer 88

(1) evidence is favorable to the D because it either impeaches or is exculpatory; AND (2) prejudice has resulted - there is a rsble probability that the result of the case would have been different if the undisclosed evidence had been presented at trial

Answer 89

If D is going to use an alibi or insanity defense, they must notify the prosecution If an alibi is to be used, the D must give the prosecution a list of their witnesses Prosecution must give D a list of the witnesses it will use to rebut the defense Prosecutor may not comment at trial on the D's failure to produce a witness named as supporting the alibi or on failure to present the alibi itself

Answer 90

If they either (1) lack a rational as well as factual understanding of the charges and proceedings, or (2) lack sufficient present ability to consult with their lawyer with a rsble degree of understanding The state may place on the D the burden of proving incompetency by a preponderance of the evidence, but requiring the D to show incompetency by "clear and convincing" evidence is unconstitutional

Answer 91

If the judge has actual malice against the defendant or has financial interest in having the trial result in a guilty verdict Impermissible bias also is present when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the D's case

Answer 92

No constitutional right to jury trial for petty offenses, but only for serious offenses Offense is serious if imprisonment for more than 6 months is authorized No jury trial right with juvenile delinquency proceedings or civil contempt proceedings

Answer 93

(1) the D must show facts or circumstances that raise an inference that the exclusion was based on race or gender, (2) upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (3) the judge then determines whether the prosecutor's explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination If the judge believes the prosecutor was sincere, the strike may be upheld

Answer 94

Juror should be excluded for cause if juror's views would prevent or substantially impair the performance of their duties in accordance w their instructions and oath For death penalty cases, a state may not automatically exclude all those who are opposed to the death penalty (must see if that would interfere with their ability to do their juror job) And any juror who automatically would give the death penalty upon a guilty verdict must be excluded because they can't perform their job as juror

Answer 95

If, in the judgment of the judge, their wavier is knowing and intelligent and, based on the trial judge's consideration of the defendant's emotional and psychological state, the defendant is competent to proceed pro se

Answer 96

Sixth Amendment provides right to effective counsel

Answer 97

Effective assistance of counsel is generally presumed An ineffective assistance claimant must show: (1) deficient performance by counsel; AND (2) but for the deficiency, the result of the proceeding would have been different Must point out specific deficiencies and can't base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to counsel Trial tactics and failure to raise a constitutional defense that is later invalidated are not ineffective assistance

Answer 98

D must show deficient performance and a rsble possibliity that the outcome of the plea process would have been different with competent advice An atty's failure to notify a D of a plea offer can constitute deficient performance if the D can show that: (1) had the plea agreement been communicated, the D likely would have accepted; and (2) the plea likely would have been entered without the prosecutor's canceling it Fact that D subsequently has a fair trial after turning down a plea offer does not prevent the ineffective assistance claim

Answer 99

Sixth Amendment

Answer 100

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the D's own confession, which is admitted However, such a statement may be admitted if: (1) all portions referring to the other D can be eliminated; (2) confessing D takes the stand and subjects themselves to cross; or (3) confession of the nontestifying D is being used to rebut the D's claim that their confession was obtained coercively

Answer 101

(1) the declarant is unavailable, and (2) the D had an opportunity to cross-examine the declarant at the time the statement was made

Answer 102

At a minimum, statements from a preliminary hearing, GJ hearing, former trial, or police interrogation conducted to establish or prove past acts However, statements from police interrogations intended to aid the police in responding to an ongoing emergency are not testimonial If results of forensic lab testing are offered for proof of the matter asserted, they are testimonial in nature and inadmissible unless the person who did the testing is made available for cross-examination But there is no Confrontation Clause issue when the lab test results are not offered to prove the validity of the test results (just to say that they matched another set of results, not to say that they tested positive for cocaine or something)

Answer 103

Must determine that the plea is voluntary and intelligent Must be done by addressing the D personally in open court on the record Judge must be sure that the D knows and understands things such as: (1) the nature of the charge to which the plea is offered and the crucial elements of the crime charged (2) the maximum possible penalty and any mandatory minimum; and (3) that the D has a right to not plead guilty and that if they do plead guilty, they waive the right to trial

Answer 104

Pleas that are seen as an intelligent choice among D's alternatives are immune from collateral attack But a plea can be set aside for: (1) involuntariness (failure to meet standards for taking a plea), (2) lack of jurisdiction, (3) ineffective assistance of counsel, or (4) failure to keep the plea bargain

Answer 105

No, a plea bargain will be enforced against the prosecutor and the D, but not against the judge, who does not have to accept the plea

Answer 106

A guilty plea conviction may be used as a conviction in other proceedings when relevant (like sentencing enhancements) But a guilty plea neither admits the legality of incriminating evidence nor waives Fouth Amend claims in a subsequent civil damages action

Answer 107

Yes But does not have a right to confrontation or cross-examination

Answer 108

Fifth Amendment - person may not be retried for the same offense once jeopardy has attached

Answer 109

Attaches at the empaneling and swearing in of the jury In bench trials jeopardy attaches when the first witness is sworn

Answer 110

Hung jury Manifest necessity to abort original trial Successful appeal - but D may not be tried for a greater offense (if they were convicted of manslaughter at first trial, highest charge at new trial is manslaughter) Breaches of plea bargains When D elects to have multiple offenses tried separately

Answer 111

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not erquire, even though some of the same facts may be necessary to prove both crimes

Answer 112

Multiple punishments are permissible if there was a legislative intent to have the cumulative punishments Ex: D can be sentenced both for robbery and using a weapon during the commission of a crime if statutes so provide

Answer 113

A person may be tried for the same conduct by both the state and fed gov't's or by two states, but not by a state and the state's municipalities

Answer 114

*compelled testimonial evidence is privileged* Can be asserted by any person in any type of case Privilege is personal and so may be asserted by a D, witness, or party only if the answer to the question might tend to incriminate them Person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them Criminal D has right not to take the witness stand at trial and not to be asked to do so Other witnesses have to take the stand but can invoke the privilege question by question Protects only testimonial or communicative evidence and not real or physical evidence To be considered testimonial, it must relate a factual assertion or disclose information

Answer 115

Protects only testimonial or communicative evidence and not real or physical evidence To be considered testimonial, it must relate a factual assertion or disclose information

Answer 116

Yes, a person served w a subpoena requirig production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply because the act of producing the documents does not involve testimonial self-incrimination

Answer 117

A prosecutor may NOT comment on a D's silence after being arrested and receiving Miranda warnings But CAN comment on pre-Miranda silence Neither may the prosecutor comment on a D's failure to testify at trial But prosecutor CAN comment on a D's failure to take the stand when the comment is in response to defense counsel's assertion that the D was not allowed to explain their side of the story Judge may offer jury instruction about not drawing adverse inferences regarding silence either at D's request or even over D's objections Harmless error test applies when prosecutor comments on these things

Crim Pro Flashcards

(141 cards)