Crim pro Flashcards

Question

Custodial Interrogation = Custody + Interrogation Basic Elements QPTCD

Answer 1

Custodial Interrogation = Custody + Interrogation Basic Elements (QPTCD; Quail are Poultry and so are Turkey, Chicken, and Duck; Question, Police, Taken [into] Custody, Deprived) Questioning (or its functional equivalent) By police After Defendant has been taken into custody OR Deprived of his freedom of action in any significant way

Answer 2

Waiving Miranda Rights (KIV BC, Knowingly, Intelligently, Voluntarily, Burden, Cease) Defendant may knowingly, intelligently, and voluntarily waive Heavy burden on government to prove waiver If Defendant invokes Miranda rights protections, his rights must be scrupulously honored and interrogation must cease

Answer 3

Two-Prong Test for Admissibility of Pre- or Post-Indictment Corporeal OR Non-Corporeal Identification Procedure (DSM, Demonstrate, Suggestive, Misidentification): Defendant must demonstrate that The procedure was impermissibly suggestive AND There was a substantial likelihood of misidentification

Answer 4

Factors Court Must Be Considered for Determining Improperness in Identification (C TOAD, Certainty, Time, Opportunity, Accuracy, Degree): The witness’s opportunity to view the defendant at the time of the crime The witness’s degree of attention at the time of the crime The accuracy of the witness’s description of the defendant prior to the identification The level of certainty at the time of the identification, AND The length of time between the crime and the identification

Answer 5

Dangers of Mistaken Identities by Compelled Confrontations (LSD, Limited, Suggestion, Determinative) Degree of suggestion (intentional or unintentional) inherent in the manner in which suspect is presented Danger is acute where witness had limited opportunity to observe perpetrator As a practical matter, confrontation is determinative

Answer 6

Examples of Dangers in lineup ID’s (KDPSFW, Known, Dissimilar, Pointed, Solo, Fits, Wear) All lineup participants but defendant are known to witness Other participants are grossly dissimilar to defendant in appearance Only defendant required to wear clothing similar to perpetrator’s “We caught the guy” followed by solo presentation of defendant Defendant is pointed out in advance Participants try on clothing that fits on defendant

Answer 7

ID Credibility Factors Considered (COD FLAP, Conduct, Opportunity, Discrepancies, Failure, Lapse, Another, Photo) Witness’s prior opportunity to observe Description Discrepancies: discrepancies between witness’s description of perpetrator and defendant’s actual appearance Prior ID of another defendant Photo ID of defendant before lineup ID Failure to recognize defendant as perpetrator on a prior occasion Lapse of time between crime and lineup ID Facts concerning conduct of lineup

Answer 8

Confrontations - Totality of the Circumstance Consideration Factors (LOCAD, Lapse, Opportunity, Certainty, Attention, Description) Opportunity to observe Witness’s degree of attention Accuracy of witness’s prior description Witness’s level of certainty Lapse of time between crime and confrontation

Answer 9

Rebutting Effective Counsel Presumption (DPRP) Definition Performance AND Resulting Prejudice

Answer 10

Deficient Performance of Counsel (CAM, Competence, Attention, Measurably) Serious Incompetence Inattention, OR Inefficiency of Counsel - conduct falling measurably below that of the ordinary fallible lawyer

Answer 11

Defendant Standing Requirements to Challenge Under 4th Amendment (HEPI, Himself, Expectation, Place, Item): Defendant himself has been seized, OR Defendant has a reasonable expectation of privacy with regard to The place searched OR The item seized It is not enough that the introduction as evidence of an item seized may incriminate the defendant or that the evidence was seized from a co-conspirator

Answer 12

Exceptions to the Exclusionary Rule (IF A NICK, Inevitable, Faith, Attenuation, Negligence, Independent, Court, Knock) Knock and Announce Officers executing an arrest warrant at a residence are required to knock and announce they are police If they fail to do so, and discover evidence, that evidence does not have to be excluded Inevitable Discovery If the evidence would have been discovered anyway through lawful means it will be admissible Independent Source Evidence discovered on the basis of an independent source will be admissible Attenuation in the Causal Chain Intervening events and the passage of time can remove the taint of the unconstitutional conduct Good Faith Biggest of the exceptions to the exclusionary rule Applies to officers who violate an individual’s rights but have good-faith reason to believe their conduct was constitutional Applies to officers who reply on either: An existing law that was later declared unconstitutional, or A warrant that, while facially valid, is later found to be defective If officers are acting in good faith reliance, they are entitled to use the evidence that was obtained Officers can rely on a warrant unless (FFA, Fraud, Facially, Abandoned) The warrant was obtained by fraud The warrant was facially defective The magistrate wholly abandoned role Expanded: The Good Faith Exception does not apply when (RE FFA, Reasonable, Executed, Fraud, Facially, Abandoned): No reasonable officer would rely on the affidavit underlying the warrant The warrant is defective on its face The warrant was obtained by fraud The magistrate has wholly abandoned his judicial role The warrant was improperly executed 1/2 Negligence Isolated negligence by law enforcement personnel does not necessarily trigger the exclusionary rule To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion could meaningfully deter it

Answer 13

Immunities (UTI, Use, Transactional, Immunity) Use/Derivative Use Immunity Individual’s compelled testimony will not be used against them in a later prosecution Evidence derived from individual’s compelled testimony will not be used against them in a later prosecution Co-extensive with 5th Amendment privilege protections But perjury destroys this immunity Transactional (“blanket” or “total”) immunity Individual will not be prosecuted for anything about which individual is compelled to testify Like amnesty or pardon Greater than 5th Amendment privilege protections But perjury destroys this immunity “Use and derivative use” immunity is all that is constitutionally required to compel the testimony of a witness, and testimony encouraged by a promise of immunity is considered coerced and involuntary. Therefore, the testimony cannot be used as substantive evidence or for impeachment purposes

Answer 14

Officers can rely on a warrant unless (FFA, Fraud, Facially, Abandoned) The warrant was obtained by fraud The warrant was facially defective The magistrate wholly abandoned role

Answer 15

Expanded: The Good Faith Exception does not apply when (RE FFA, Reasonable, Executed, Fraud, Facially, Abandoned): No reasonable officer would rely on the affidavit underlying the warrant The warrant is defective on its face The warrant was obtained by fraud The magistrate has wholly abandoned his judicial role The warrant was improperly executed

Answer 16

Prima Facie Case for a Jury that is NOT a Cross-Section of Community (DVS, Distinctive, Venire, Systematic): Showing that The group allegedly excluded is a “distinctive” group in the community The group was not fairly represented in the venire from which the jury was chosen; AND The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process

Answer 17

Batson Three Prong Test to Determine Whether Race was an improper reason for Peremptory Challenge, violating 14th Amendment (PEB, Prima, Explanation, Burden): The moving party establishes a prima facie case of discrimination; The party who exercised the challenge provides a race-neutral explanation for the strike; The moving party carries her burden of proving that the other party’s proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination Ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike The Fourteenth Amendment equal protection clause prohibits racial discrimination in the selection of grand juries, as well as petit juries

Answer 18

MODERN TEST of whether Confidential Informant’s info can be basis for warrant (evolved from Spinelli Test) Totality of the Circumstances Confidential Informant Test Was information provided by an informant sufficient to create probable cause? (NNP MIOPC, Not Need Particular, Magistrate, Information, Other, Probable Cause) Affidavit does not need particular information about informant, including identify Provided the neutral magistrate can find Based on Informant’s information AND Other available facts THAT There is probable cause to issue warrant An arrest warrant cannot rely solely on information gathered from an unknown informant. The information but be independently verified by the police A known, reliable informant does not need its information to be verified independently by police.

Answer 19

Four Prosecutorial Duties (BFCT, Brady, False, Contact, Testify) Brady Doctrine: Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: Evidence that tends to show that the defendant is not guilty of the crimes charged Evidence that would enable the defense to impeach the credibility of the prosecution witness Material Exculpatory evidence - disclosure could change the outcome of the case Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. Includes evidence within the control of the government (including the police) If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information Many states and some D.A.’s offices have an open file policy allowing the defense to see the information A prosecutor may not knowingly present false testimony A prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (i.e., cannot violate the defendant’s Sixth Amendment right to counsel) A prosecutor may not comment on a defendant’s failure to testify at trial or make unfair remarks about the defendant to the jury (i.e. cannot violate the defendant’s Fifth Amendment right to remain silent) A prosecutor may comment on a defendant’s silence before his Miranda rights attached

Answer 20

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is (JAC, Jurisdiction, Available, Conflict): Properly admitted in the jurisdiction (including pro hac vice rules) Available for trial; and No conflict or other reason to disqualify the lawyer

Answer 21

Elements of When an Accomplice to Felony Murder Can Receive Death Penalty (KIP, Killed, Indifference, Participated) Accomplice Killed, intended to kill, or attempted to kill OR Significantly participated in commission of underlying felony, AND Acted with reckless indifference to human life

Answer 22

A capital sentencing scheme violates Apprendi if it (RWJ, Recommending, Without, Judge): Allows a jury to render an advisory sentence recommending the death penalty Without specifically finding an aggravating circumstance and Permits the judge to then make that finding independently

Answer 23

Three Requirements for Statutory Scheme Imposing Death Penalty (SGR,Standards, Guidance, Review) Clear and objective standards Specific and detailed guidance; AND An opportunity for rational review of the process

Answer 24

Double Jeopardy Clause 5th Amendment Provides three separate protections (AMC, Acquittal, Multiple, Conviction): Protection against prosecution for the same offense after acquittal Protection against prosecution for the same offense after conviction Protection against multiple prosecutions or punishments for the same offense

Answer 25

No Double Jeopardy Protections (FAMPA, Facts, Attachment, Mistrial, Plea, Appeal) No attachment Jury was not impaneled & sworn, OR Judge did not begin to hear evidence Mistrial Requested by defendant, OR Based on manifest necessity (a situation rendering it impossible to continue the trial or reach a fair outcome) Appeal Appellate court discovered trial error & remanded case New facts Facts necessary for greater offense did not exist at first trial Guilty plea to lesser offense Greater offense was charged at time of plea to lesser offense

Answer 26

Plain Error Doctrine (Re: Criminal Defendant): A defendant who has failed to preserve a claim of error in district court is still entitled to appellate relief when (EOR, Error, Obvious, Rights): The district court committed error under the law in effect at the time the appeal is heard The error is obvious under that law; AND The error affected the defendant’s substantial rights

Answer 27

NO. Because the 6th Amendment requires counsel to be present for all CRITICAL STAGES of prosecution, and the taking of a handwriting exemplar is NOT a critical stage of prosecution, there is no 6th Amendment requirement that counsel be present. The defendant will still have the opportunity to meaningfully confront the government's handwriting experts through cross-examination and present his/her own experts.

Answer 28

Lineups, in-person identifications, interrogations Arraignments, preliminary hearings, bail hearings, pretrial motions Plea negotiations & hearings Trial & Sentencing

Answer 29

Pre-charge lineups Photo-array identification Fingerprinting, handwriting, voice exemplars, blood samples Initial appearances, hearings to determine probable cause to detain defendant Discretionary appeals Post-conviction proceedings (e.g. parole, probation)

Answer 30

Statements taken in violation of 6th Amendment cannot be used directly in deciding guilt or innocence BUT Statements taken in violation of 6th Amendment CAN be used for impeaching defendant's inconsistent testimony

Answer 31

General Rule: non-indigent criminal defendant entitled to counsel of choice Court may deny choice of counsel if: 1. Defendant unable to pay 2. Attorney declines representation 3. Attorney has conflict of interest 4. Advocate is not an attorney Erroneous denial of an attorney - such as improper denial of pro hac vice counsel - constitutes STRUCTURAL ERROR STRUCTURAL ERROR results in automatic reversal of conviction, not subject to review for harmlessness

Answer 32

If there was an unnecessarily suggestive out-of-court identification arranged by police, in-court testimony MAY be admitted to cure after court considers: 1. Witness's opportunity to view perpetrator & level of attention during crime 2. Accuracy of witness's description before suggestive identification & certainty during identification 3. Time between crime and suggestive identification If the improper out-of-court identification procedure created a substantial likelihood of misidentification, in-court identification testimony will NOT be admitted. If, after considering the factors above, the court decides it did not create a substantial likelihood of misidentification, in-court identification testimony will be admitted.

Answer 33

A for-cause challenge should be granted if a potential juror's views would prevent or substantially impair his/her ability to impartially decide the case or impose the death penalty

Answer 34

Mandatory Presumptions -Rebuttable: Conclusion that MUST be drawn from basic facts unless rebutted -Conclusive: Conclusion that MUST be drawn from basic facts & cannot be rebutted Permissible Inference: Conclusion that MAY be drawn from basic facts Mandatory presumptions cannot be used against a criminal defendant to establish an element of the charged crime

Answer 35

NO. No warrant is necessary by police to search bank records.

Answer 36

NO. A custodian of corporate records (or other corporate officer) cannot refuse to produce subpoenaed documents by citing privilege, even if the documents would incriminate the custodian personally.

Answer 37

YES. An individual can raise a 5th Amendment defense against self-incrimination if being asked to testify in front of a grand jury.

Answer 38

When it is evidence that his character is inconsistent with the crime charged.

Answer 39

YES. Extrinsic evidence of a conviction may be introduced without first questioning the witness about the conviction.

Answer 40

NO, unless the doctor is expected to testify. Attorney-client privileges attach when a 3d party is present ONLY when the 3d party is employed to assist the attorney in rendering legal services, including experts hired for the litigation, UNLESS the expert is expected to testify.

Answer 41

Race and gender.

Answer 42

Right to counsel arises when: The probationer asserts that the alleged probation violation was NOT committed (Due Process) OR Complex reasons justified or mitigated violation (Due Process) OR Sentencing has not yet been imposed and will be imposed if probation is invoked (6th Amendment) -This means that no sentence has been imposed (a suspended sentence is considered to have been imposed). If no sentence was imposed and the probation came before sentencing, and sentencing was to commence if probation violated, this means right to counsel arises. Right to counsel does NOT arise when: Probationer admits to probation violation OR A sentence has already been imposed and was merely suspended during probation If a judge imposes a sentence of 6 months but does not execute it and instead permits the defendant to go on probation instead, the sentence of 6 months HAS been imposed, it just has not been executed.

Answer 43

NO. While a defendant could challenge a verdict based on the argument that the verdict was not supported by sufficient evidence, an inconsistent verdict cannot be challenged, because a jury's verdict, even when based on mistake, is not to be disturbed.

Answer 44

Inadmissible in later prosecution, EVEN as impeachment. Testimony given under a grant of immunity is coerced and therefore involuntary. Any criminal-trial use of such testimony outside the context of a perjury prosecution constitutes a denial of fue process. Therefore, it is NOT constitutionally proper for grand jury statements offered in exchange for immunity to be used against the witness later, EVEN as impeachment (but it is permissible during a related perjury prosecution). A person subpoenaed to testify before a grand jury who has invoked the Fifth Amendment privilege against self-incrimination can be compelled to testify if she is granted use and derivative use immunity. This prevents the person's testimony, and any evidence derived from it, from being used against her in any way that could lead to a criminal prosecution. But the government can still prosecute the person using evidence obtained elsewhere.

Answer 45

To overturn a conviction based on a conflict of interest, a defendant must show that there was an actual conflict of interest and that such conflict adversely affected the attorney's performance.

Answer 46

BPO Below Prejudiced Outcome T.o reverse a conviction on the ground of ineffective counsel (but without a conflict of interest), the claimant has the burden to show that: 1. the counsel's representation fell below an objective standard of reasonableness AND 2. the counsel's deficient performance prejudiced the defendant RESULTING 3. in the reasonable probability that the outcome would have been different

Answer 47

When the transaction or occurrence that the cause of action arose from is related enough to the company's contacts in the forum state, that the corporation could reasonably anticipate being brought into court there, the corporation is subject to specific personal jurisdiction there. Thus, if a passenger aboard a cruise ship is injured because of the ship's negligence in State C, and the ship spends a good deal of time docked at a port in state B, the cruise ship company could reasonably anticipate being brought into court in State B for matters like the one that occurred in State C, and thus personal jurisdiction exists there.

Answer 48

The proper inquiry is whether a corporation's affiliations with the forum state are so "continuous and systematic" as to render the corporation essentially "at home" in the forum state

Answer 49

NO. It is never proper for a prosecutor to express their opinion of a defendant's guilt or innocence.

Answer 50

YES. Failure to do so constitutes deficient performance. This is the case even when the evidence against the defendant is overwhelming, so long as there is a reasonable possibility that the defendant would have gone to trial rather than accept the plea had the counsel informed them about the immigration risks.

Answer 51

KIV Knowing Intelligent Voluntary A criminal defendany may only waive their 6th Amendment right to counsel and engage in self-representation if the waiver is made: 1. knowingly, meaning: ...a) aware of right to counsel 2) intelligency, meaning: ...a) understands nature of charges ...b) knows range of punishment ...c) recognizes disadvantages of self-representation AND 3. voluntarily, meaning: ...a) waiver is given freely ...b) not choosing self-representation over incompetent counsel

Answer 52

PEHP Probable Evidence Harm Pursuit Exigent circumstances exist when police have: 1. Probable cause to believe that a warrantless entry and/or search is needed to 2. Prevent imminent destruction of relevant evidence (evanescent evidence) 3. Protect police and/or the public from immediate physical harm (emergency); OR 4. Pursue a fleeing suspect after a felony occurs (hot pursuit)

Answer 53

YES. Under the third-party doctrine, individuals generally have no reasonable expectation of privacy in information voluntarily turned over to a third party (like financial records given to a bank). No warrant is required for such information. HOWEVER, individuals have a reasonable expectation of privacy in their extensive physical movements captures by historical cell-phone site-location data, even if held by a third party (cell-phone provider). Therefore, a warrant is required for such a search.

Answer 54

The day after the contract is made. Thus, under a unilateral contract, the one year time limit would begin on the day after offeree's performance begins. The statute of frauds requires that contracts be fully performable within one year of its making, otherwise it must be in writing.

Answer 55

Jeopardy attaches when: 1. The jury is impaneled and sworn in a jury trial; OR 2. The judge begins to hear evidence (first witness sworn in), in a bench trial

Answer 56

YES. The front yard and porch are as much the curtilage as the backyard, and a drug-sniffing dog's presence constitutes a search, thus bringing the animal onto the front porch is a search of the curtilage.

Answer 57

When the statements were voluntary (not elicited by interrogation) AND defendant has testified at trial and the prior non-Mirandized voluntary statement is offered solely as impeachment evidence

Answer 58

Interrogation is either express questioning by the police or any words or actions that the police know or should know are reasonably likely to elicit an incriminating response

Answer 59

NO. This is not a "critical state" of the prosecution. The arraignment would be a critical state, but this is pre-arraignment. Critical States: 1. Post-indictment interrogations & lineup 2. Post-indictment preliminary hearings and arraignment 3. Plea negotiations & hearings 4. Trial & sentencing 5. Appeals

Answer 60

In order to impose the death penalty, the aggravating circumstance cannot be unconstitutionally vague. Labeling a crime as "heinous or brutal" has been held unconstitutionally vague.

Answer 61

Jury instructions CANNOT shift the burden of proof on any material fact to the defendant. Jury instructions that use the word "must" regarding conclusions or presumptions are interpreted to shift such a burden. Rebuttable presumptions do not necessarily shift the burden of proof, depending on the facts. Conclusory instructions do, however.

Crim pro Flashcards

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