Crim Pro Flashcards

Question

# 4th Amend - search What would make a warrant invalid?

Answer 1

* No probable cause or no particularity * false false by affiant * affiant intentionally or recklessly included false statement AND * false statement material to finding of probable cause

Answer 2

Fine as long as reasonable reliance (good faith) on warrant (unless affidavit was not so lacking in probable cause/particularity that reasonable officer could not rely on it or officer lied)

Answer 3

predict when illegal items may be in suspect's home or office or warehouse and need not be on premises at time warrant is issued

Answer 4

Warrants may be obtained to search premises belonging to third parties (non suspects)

Answer 5

OK but evidence obtained from search will not be able to come in as evidence (fruit of unconstitutional search)

Answer 6

ONLY police (no private citizens)

Answer 7

Knock + announce unless reasaonable belief that doing so would be dangerous or futile

Answer 8

1. search incident to arrest 2. automobile search exception 3. plain view exception 4. consent 5. stop + frisk 6. hot pursuit, evanescent evidence, and emergency aid exception

Answer 9

1. A lawful arrest 2. w/ arrest + search conducted contemperaneously in time and place ## Footnote Geographic scope - person + person's wingspan (*except for automobile search incident to arrest - may search interior of car if meeting the elements*) Can examine physical attirubtes of person's cell phone but not data Can do inventory search of arrestee's belongings pursuant to established dep't procedure

Answer 10

Yes (if lawful arrest + contemporaneous search) AND * if arrestee is unsecured and may gain access to interior OR * police reasonably believe evidence of *offense* may be found (Gant rule) ## Footnote It does not matter if what was foudn in vehicle is different from what gave rise to probable cause for arrest. As long as search is valid, anything illegal that is found is admissible.

Answer 11

* Probable cause to believe that vehicle contains fruits, instrumentalities, or evidence of a crime * Car must be in public areas (not driveway of home) | Entire car can be searched. ## Footnote Police can open any container that could REASONABLY contain the item they had probable cause to look for - whether it is owned by passenger or driver. (i.e., don't look in glove box if looking for a stolen TV) ALSO probable cause for search can arise after car is lawfully stopped

Answer 12

1. Police are legitimately on the premises AND 2. discover evidence, contraband, or fruits or instrumentalities of crime in plain view (the evidence is IMMEDIATELY APPARENT)

Answer 13

1. Consent must be voluntary (but police lying about a warrant would negate consent) 2. by anyone w/ apparent authority over the item or premises (including anyone w/ an apparent equal right ot use or occupy the property) ## Footnote Objecting person controls --> no search (unless objecting occupant is removed for some lawful reason)

Answer 14

*Terry* stop: brief detention for purpose of investing suspicious conduct (reasonable suspicion standard) *Terry* frisk: pat down of outer clothing + body for weapons; may seize any item that officer reasonably believes ON PLAIN FEEL is weapon or contraband ## Footnote If *Terry* stop + probable cause arises during stop --> detention becomes arrest --> officer can conduct full search incident to arrest

Answer 15

Evidence that might disappear quickly if police took time to get warrant (e.g., materials under finger nails BUT NOT blood samples for DUI)

Answer 16

Police in hot pursuit of fleeing FELON may pursue suspect into private dwelling (and can admit evidence found in home) | can enter anyone's home w/o warrant ## Footnote must be within 15 minutes behind fleeing felong

Answer 17

police may enter premises w/o warrant if emergency threatens safety or health of an individual or public ## Footnote Cf. community caretaker exception - does not permit officer ot make warrantless entry into private residence

Answer 18

No - only need reasonable groudns for school officialst os earch students or possessions ## Footnote Reasonable = offers moderate chance of finding evidence of wrongdoing; measures adopted to carry out search are reasonably related to objectives of search + search is not excessively intrusive in light of area, sex, and nature of infraction For extracurricular activities --> can be drug-tested (dances, sports, clubs, etc.)

Answer 19

Reasonable cause (not probable)

Answer 20

All wiretapping + eavesdropping = requires warrants ## Footnote Unreliable ear --> no 4th Amend. objection when speaking b/c you assume risk that you are talkign to an informat (BUT not for phone calls) Uninvited ear --> no 4th Amend. claim if no attempt to keep convo private (e.g., in restaurant)

Answer 21

If evidence was obtained in a manner that shocks the conscience (or crime is induced by conduct that shocks the conscience)

Answer 22

1. voluntary (determined by totality of cricumstances) --> harmless error test (no need to overturn conviction if there was overwhelming evidence of guilt)

Answer 23

right to an attorney during all critical stages of a prosecution after judicial proceedings have begun | automatically attaches - does not have to be asserted ## Footnote police cannot deliberately elicit an incriminating statement from D outside presence of counsel after D has been charged unless D waives this right

Answer 24

post-indictment interrogation prelim hearings to determine probable cause arraignment post-charge lineups guilty pleas and sentencings felony trials

Answer 25

taking of blood samples or handwriting samples pre-charge lineups brief recess during D's testimony at trial parole + probation revocation proceedings Taking of fingerprints Photo arrays pre-trial identifications

Answer 26

Yes - right only applies to the specific charge for which D is retained or appointed to counsel D can still be questioned on an unrelated, uncharged offense w/o vioalting 6th Amend. RTC

Answer 27

knowing + voluntary

Answer 28

If failure to provide counsel entitled to at trial --> automatic reversal If non-trial proceedings (i.e., post-charge lineup) where counsel is still required --> harmless error test If statement obtained in violation of D's 6th Amend. RTC --> inadmissible in prosecution's case-in-chief but admissible for impeachment purposes

Answer 29

*Miranda* warnings ## Footnote right to remain silent anything said can be used against them in court right to attorney if cant' afford attorney one will be provided

Answer 30

when a person is in custodial interrogation

Answer 31

Custodial (objective test): whether reasonable person would feel free to terminate interroation + whether environment presents same inherently coervive pressures as stationhouse questioning Interrogation: any words or conduct by police that they should know woudl likely elicit an incriminating response | NOT spontaneous statements

Answer 32

1. do nothing 2. waive *Miranda* rights knowingly + voluntarily 3. assert right to remain silent --> must be explicit, unamibugous, and unequivocal 4. assert right to counsel --> must be unambiguous and specific

Answer 33

Stop all questioning + scrupulously honor request (by not badgering detainee into talking)

Answer 34

Yes, after a significant amoutn of time passed + person was re-*Mirandized* + questions limited to crime that was not subject of earlier questioning OR D can reinitate questioning of his own volition on same topic (even if choosing to remain silent at first)

Answer 35

Stop all questioning until accused is given attorney OR accused initiates further questioning ## Footnote Prohibition against questioning lasts entire time detainee is in custody + 14 days after detainee is out of custody (can then re-question after re-*Mirandized*)

Answer 36

Inadmissible except for impeachment purposes OR public safety exception (i.e., locating hidden gun that could have caused injury)

Answer 37

D can attack identification as denying due process (i.e., if it was unncessarily suggestive + substantial likelihood of misidentification)

Answer 38

Exclude in-court identification ## Footnote Unless there has been an independent source for the in-court identification (e.g., witness had adequate opportunity to determine D's identity at time of crime)

Answer 39

4th 5th 6th 14th

Answer 40

eviddence obtained from exploitation of unconstitutionally obtained evidence = excluded

Answer 41

Police obtain an unwarned confession from suspect but then warn suspect + then request suspect --> no deceptive "question first, warn later" scheme) --> evidence can come in

Answer 42

1. Fruits derived from statements in violation of *Miranda* (those statements themselves can't come in but the evidence found from the statements can) 2. Evidence obtained from independent sources 3. Attenuation 4. D's intervening acts of free will 5. Inevitable discovery 6. Violations of knock & announce rule 7. Live witness testimony 8. In-court identification 9. Out-of-court identificaiton *unless* necessarily suggestive

Answer 43

An exception to exclusionary rule Evidence for which connection between unconstitutional police misconduct + evidence that is so remote or has been interrupted by an intervening circumstance such that the causal link betweent he misconduct and evidence is broken Consider: * temporal proximity between unconstitutional conduct + discovery of evidence * presence of intervening circumstances * purpose and flagrancy of official misconduct

Answer 44

1. grand jury proceedings 2. civil proceedings 3. parole revocation proceedings 4. when evidence was obtained in violation of state or agency rules (not federal) 5. good faith reliance on defective warrant UNLESS (affidavit underlying warrant is so lacking in probable cause or particularity that there could be no reasonable reliance or officer/proseuctor lied) 6. impeachment purposes for D's trial testimony (not for other witnesses) 7. knock + announce

Answer 45

Harmless error (gov't must show beyond reasonable doubt that error was harmless)

Answer 46

conducted in secret no right to *Miranda* warnings or counsel no right to ahve evidence excluded no right to challenge subpoena on 4th Amend. grounds (that grand jury lacked probable cause)

Answer 47

Before trial --> duty to disclose exculpatory information

Answer 48

Alibi or insanity defense --> D must notify prosecution and give them a list of their witnesses Insanity defense --> based on D's mental condition *at the time* of the charged crime Incompetency --> D's mental condition at the time of trial (D lacks a rational + factual understanding of charges and proceedings OR lacks sufficient present ability to consult w/ lawyer w/ reasonable degree of understanding)

Answer 49

right to speedy trial right to fair trial right to trial by jury right to counsel (6th Amend.) Right to remain silent (5th Amend.) Right to confront witnesses (6th Amend.)

Answer 50

Only attaches for serious offenses (max sentence exceeding 6 months) Must be at least 6 jurors Unanimous verdicts Right to impartial jury (right to have jruy selected from representative cross-section but empaneled jury does not need to have that) -- for cause challenges + peremptory challenges

Answer 51

Extends to 1st appeal ## Footnote Deficient performance by counsel + BUT FOR deficiency result would have been different CANNOT be based on inexperience, lack of time to prepare, gravity of charges, complexity of defenses, or accessibility of witnesses to counsel

Answer 52

Only protects oneself - does not include protecting others

Answer 53

Prior testimonial evidence not admitted unless declarant unavailable + D had opportunity to cross-examine declarant at time statement was made ## Footnote right = NOT absolute such as when preventing confonrtation would serve important public purpose + reliability of testimony is ohterwise assured (e.g., insulating child from confronting trauma of alleged abuse or if counsel has ability to cross-examine via recording in close-by room)

Answer 54

Statements from prelim hearing, grand jury hearing, former trial, police interrogations, results from forensic lab tests - antyhing to establish or prove past acts for litigation | NOT police responding to ongoing emergency

Answer 55

Yes - by wrongdoing or when disrupting the courtroom

Answer 56

Prohibited and inadmissible at trial

Answer 57

BRD for states Exception: affirmative defenses (insanity, self-defense) shifts to D

Answer 58

Right to counsel 8th Amend. protection against cruel and unusual punishment

Answer 59

No federal constitutional right to appeal If appeal --> any new Supreme Court rule for case on direct review will be applied to all other cases on direct review

Answer 60

After D has exchausted appeals New and separate civil proceeding (focused on lawfulness of D's detention)

Answer 61

5th Amend.

Answer 62

A person cannot be tried for the same offense/crime twice

Answer 63

If each does not require an additional/different element that the other has

Answer 64

Jury trial --> when jury is sworn in Bench trial --> when first witness is sworn in

Answer 65

1. first trial ends in hung jury 2. manifest necessity to abort first trial (i.e., medical emergency) 3. retrial after successful appeal but NOT for a more serious offense than was tried on first trial 4. D breached plea bargain - so charges may be reinstated (even if breach came waaaaaay later) 5. D woudl have been tried for multiple charges in single trial but D elects to ahve offenses tried separately

Answer 66

For greater offense --> bars retrial of lesser included offense For lesser offense --> bars retiral of greater offense UNLESS * unlawful conduct that is subsequently used to prove greater offense has not occurred at time of prosecution of lesser offense OR not discovered despite due diligence

Answer 67

In civil proceedings (both must be criminal proceedings) In separate trials by separate sovereigns (but not by state + its own municpalities) - different states or state and federal gov't

Answer 68

OK even if constituting the same crime

Answer 69

any person (NOT corporation or partnerhsip) in any type of case when answer might tend to incriminate them

Answer 70

the first time the question is asked - even if in civil or criminal proceeding --> will be otherwise waived for all subsequent criminal prosecutions ## Footnote must be asserted in civil proceeding to be claimed in later criminal proceeding

Answer 71

Protects testimonial or communicative evidence (but not from past) BUT NOT physical evidence | relating factual assertion or disclosing information ## Footnote Non-testimonial = blood sample, handwriting sample, voice sample, hair sample, the way someone walks, etc.

Answer 72

When a person's compelled statements are used against them in a criminal case

Answer 73

No - unconstitutional to make negative comments on D's failure to testify or choise to remain silent UNLESS: * it is in response to DC's assertion that D was not allowed to explain his story * if D chooses to remain silent *before* *Miranda* warnings were given (silence can be used against him in court)

Answer 74

Harmless error

Answer 75

Grant of immunity (use + derivative use immunity) No possibility of incrimination Waiver (knowing + voluntary) ## Footnote Use and derivative use immunity: guarantees that witness’s testimony and evidence located by means of testimony will not be used against witness UNLESS witness shows that evidence was derived from an independent source

Answer 76

Yes - if state's interests in regulations are heightened, owners and operators of commercial property have lower expectation of privacy (esp. if warrantless searches are necesary to further those regulatory interests)

Answer 77

w/ grant of use and derivative use immunity OR waiver ## Footnote guarantees that witness’s testimony and evidence located by means of testimony will not be used against witness UNLESS witness shows that evidence was derived from an independent source

Answer 78

Upon a valid search warrant + when person is believed to be inside but there is no response ## Footnote person not believed to be inside --> no force

Answer 79

When it is unnecessarily suggestive In-court identification + testimony of this out-of-court identification can still come in IF prosecution shows it is reliable ## Footnote Proper remedy if improper out-of-court identification --> suppression of in-court identification (unless prosecution shows reliability)

Crim Pro Flashcards

(107 cards)