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Bar Exam > Crim Pro > Flashcards

Crim Pro Flashcards

1
Q

Fourth Amendment

A

Unreasonable search and seizure

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2
Q

Fifth Amendment

A

(1) Self-incrimination

(2) Double jeaopardy

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3
Q

Sixth Amendment

A

(1) Speedy Trial
(2) Trial by Jury
(3) Confront Witnesses
(4) Assistance of Counsel
(5) Public Trial

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4
Q

Eighth Amendment

A

(1) Death Penalty

(2) Prisoner Rights

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5
Q

Exclusionary Rule

A

Rule:

Victim of illegal search or coerced statements can exclude evidence from criminal prosecution

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6
Q

Limits of Exclusionary Rule

A

Does not apply to:

(1) Grand Jury Proceedings.
(a) Witness can be compelled to testify on illegal seized evidence

(2) Civil Proceedings
(3) Parole Revocation
(4) Impeachment purposes (i.e. Defendant testimony, not defense witnesses)
(5) Violations of “Knock and Announce Rule”

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7
Q

Fruit of the Poisonous Tree

A

Excludes all illegally seized evidence and all evidence derived from police illegality

Note:
Does not apply to Miranda violations unless police act in bad faith

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8
Q

Breaking Chain of Fruit of Poisonous Tree

A

(1) Independent source
(2) Inevitable discovery
(3) Intervening acts of free will

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9
Q

Exclusionary Rule and Convictions

A

(1) Conviction not necessarily overturned b/c of improperly obtained evidence
(2) Harmless Error applied on appeal
(3) Conviction upheld if conviction would have resulted despite improper evidence

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10
Q

4th Amendment - Arrests and Detentions

A

(1) Must have probable cause
(2) Need arrest warrant for non-emergency arrest in home
(3) Need probable cause to compel you to police station for finger printing or interrogation

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11
Q

Terry Stops

A

(1) Requires reasonable suspicion supported by specific and articulable facts of criminal activity
(2) Reasonable suspicion depends on totality of circumstances
(3) If have belief detainee is armed and dangerous, then may frisk (only outer clothing pat down i.e. “plain feel”)

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12
Q

Automobile stops

A

Must have reasonable suspicion that law has been violated

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13
Q

Checkpoint Stops

A

(1) Neutral, articulable standard; and

(2) Designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility

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14
Q

Traffic stops and police dogs

A

A sniff is not a search during routine traffic stops, UNLESS stop is extended beyond time needed to issue ticket or conduct normal inquiries

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15
Q

Home and police dogs

A

Cannot use dog sniff directly outside home

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16
Q

4th Amendment Essay Analysis

A

(1) Governmental conduct?
(2) Reasonable expectation of privacy?
(3) Valid search warrant?
(4) Good faith belief by officer?
(5) Exceptions to warrant requirement

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17
Q

Governmental conduct

A

(1) Public paid police - on or off duty

(2) Private individual acting at direction of police

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18
Q

Reasonable expectation of privacy/standing

A

Automatic standing:

(1) Own premises
(2) Live on premises
(3) Overnight guest

No standing:

(1) Voice
(2) Handwriting
(3) Paint on outside of car
(4) Account records held by bank
(5) Location of car on public street or driveway
(6) Open fields
(7) Public airspace
(8) Odors from luggage
(9) Garbage set on curb

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19
Q

Search Warrant

A

Requirements:

(1) Probable Cause; and
(2) Particularity

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20
Q

Probable Cause

A

Fair probability that contraband or evidence of a crime will be found in the area searched

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21
Q

Particularity

A

Warrant must state with particularity place to be searched and things to be seized

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22
Q

Warrants and informants

A

(1) If probable cause based on informant, sufficiency is determined by totality of circumstances
(2) Informant’s credibility and basis of knowledge are relevant factors in making determination
(3) Valid warrant may be based IN PART on informant even though anonymous

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23
Q

No Knock Entry

A

Allowed when:
(1) Exigent circumstances exist

(2) If knocking would be dangerous, futile, or inhibit investigation

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24
Q

Good Faith Defense

A

Rule:

Good faith reliance overcomes defects with probable cause or particularity requirements

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25
Q

Exceptions to Good Faith Defense

A

(1) Warrant is so lacking in probable cause no reasonable officer would have relied on it
(2) Warrant is so lacking in particularity no reasonable officer would have relied on it
(3) Lied or misled magistrate
(4) Magistrate is biased and abandoned neutrality

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26
Q

Exceptions to warrant requirement - SPACES

A

(1) Search incident to lawful arrest
(2) Plain View
(3) Automobile
(4) Consent
(5) Evanescent, Hot Putsuit, Special Needs
(6) Stop and Frisk

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27
Q

Search Incident to Lawful Arrest

A

(1) Arrest must be lawful
(2) Arrest and search must be contemporaneous in time and place
(3) May search person and area within wingspan

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28
Q

Search Incident to Lawful Arrest and Automobiles

A

May search interior only if:
(1) Arrestee is unsecured and still may gain access to car; or

(2) Reasonably believe evidence of crime can be found inside car

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29
Q

Automobile Exception

A

(1) Must have probable cause to search vehicle before anything or anyone searched
(2) May search entire car, including interior compartments, and search any package or other container which reasonably contain the item of probable cause

30
Q

Plain View

A

Officer must be:

(1) Legitimately on premises
(2) Discover evidence
(3) See evidence in plain view
(4) Probable cause to believe item is evidence of crime

Note:
Must be immediately apparent that item is evidence of crime

31
Q

Consent

A

Must be voluntary

32
Q

Third Party Consent

A

Rule:
If 2 or more people have right to property, either can consent.

If both are present and one doesn’t consent, then one who doesn’t consent controls.

However, if non-consenting occupant is not there, police may search upon consent of other occupant

33
Q

Stop and Frisk

A

(1) Brief detention for purpose of investigating suspicious conduct
(2) Pat down of outer clothing for weapons only, unless there is information of weapon hidden in clothing
(3) May not manipulate, but can reach into pockets based on “plain feel” that officer reasonably believes is weapon or contraband

34
Q

Auto Stops

A

If automobile properly stopped and officer reasonably believes driver or passenger may be armed and dangerous:

(1) May conduct frisk and
(2) may search vehicle so long as is limited to areas where weapon may be placed.

35
Q

Evanescent Evidence

A

May seize evidence likely to disappear before warrant can be obtained

Ex: May scrape under fingernails

36
Q

Hot Putsuit

A

May make warrantless search and pursue person into private dwelling

Note:
(1) Must be within 15 minutes of fleeing felon

(2) If enter house and see evidence in plain view, they can be admitted

37
Q

Emergency Aid

A

May enter homes without warrant to address emergencies

38
Q

Inventory Search

A

Before incarceration police may search:

(1) Personal belongings
(2) Entire vehicle

39
Q

Public School Searches

A

Reasonable on if:
(1) Moderate chance of finding evidence of wrongdoing; and

(2) Measures adopted are reasonably related to objectives of search; and
(3) Search not excessively intrusive

Notes:
(1) May drug test those in extra curricular activities

(2) Warrantless searches of backpacks permissible to investigate violations of school rules

40
Q

Wiretapping and Eavesdropping

A

Generally require warrant except:

(1) Unreliable ear: Everyone assumes risk person speaking to is wearing a wire
(2) Uninvited ear: No 4th Amendment right if makes no attempt to keep conversation private

41
Q

Border searches

A

If at border, no warrant, probable cause, or reasonable suspicion is needed for search

If roving near border, officer must reasonably suspect vehicle contains illegals

Fixed checkpoint inside border may question occupants and disassemble vehicle without reasonable suspicion

42
Q

Miranda Warnings

A

(1) Right to remain silent
(2) Anything you say can be used against you
(3) Right to an attorney
(4) If you cannot afford one, one will be appointed to you if you desire

Note:
Need not be verbatim

43
Q

Miranda Warnings Triggers

A

(1) Custody: Reasonable person would not be free to leave. Determined by whether situation present inherently coercive pressures as station house questioning.
(2) Interrogation: Conduct where police knew or should have known that they might elicit incriminating response from suspect

44
Q

Miranda Waiver

A

Must be:

(1) Knowing
(2) Voluntary

Note:
Courts employ totality of circumstances test

45
Q

Invoking Miranda Rights - Right to Remain Silent

A

Must be unambiguous

Reinitiation after invocation if:

(1) police wait significant amount of time,
(2) remirandize, and
(3) questions limited to crime that was not subject of earlier questioning

46
Q

Invoking Miranda Rights - Right to Counsel

A

Must be unambiguous; silence is not invocation

If invoked questions must cease until:

(1) Given attorney; or
(2) Suspect initiates further questioning

If break in custody, must wait 14 days to reinitiate and must remirandize

47
Q

5th Amendment Right to Counsel

A

Court created and invoked with Miranda Rights

Not offense specific

48
Q

6th Amendment Right to Counsel

A

Automatically attaches once the suspect has been charged

Offense specific, so officers can question suspect for those offenses for which defendant has not retained counsel

If violation, harmless error applies

49
Q

Pretrial Identification

A

Bases to challenge:

(1) Denial of Right to Counsel
(a) Post-charge lineups and showups

(2) Denial of Due Process
(a) Pretrial identifications cannot be unnecessarily suggestive so as to produce misidentification

Remedy is to exclude in court identification, unless there is independent source

50
Q

Bail

A

Immediately appealable

51
Q

Grand Juries

A

Witness may be compelled to testify based on illegally seized evidence

(1) Proceedings are secret,
(2) Defendant has no right to appear, and
(3) No right to send in witnesses

52
Q

Prosecutorial duty to disclose exculpatory information

A

Failure to disclose, whether willful or inadvertent, violates Due Process Clause

Grounds for reversing conviction if:

(1) Evidence is favorable; and
(2) Reasonable probability that result would have been different had information been disclosed

53
Q

Competency to Stand Trial

A

Not a defense, but rather a bar to trial

Incompetent if:

(1) Lacks rational and factual understanding of charges and proceedings; or
(2) Lacks sufficient present ability to consult with lawyer with reasonable degree of understanding

54
Q

Right to unbiased judge

A

Bias means:

(1) having financial interest in outcome; or
(2) Actual malice against defendant

55
Q

Right to Jury Trial

A

Attaches anytime defendant tried for offense which max EXCEEDS 6 months

Min. number of jurors = 6. If used, must be unanimous.

Non-unanimous verdicts of 10-2 and 9-3 approved.

56
Q

Cross-Section of Jury

A

Only have right to cross-section of community in jury pool, not impaneled jury

57
Q

Peremptory Challenges

A

Can exclude for any reason, except race and gender

58
Q

Right to Counsel

A

Applies only to critical areas of prosecution

59
Q

Ineffective assistance of counsel

A

Rule:
Must be deficient performance and BUT FOR deficiency, there is reasonable probability result would have been different

Must show particular errors

60
Q

Right to Self-Representation

A

Right to defend self as long as waiver of trial counsel is:

(1) Knowing; and
(2) Intelligent; and
(3) Competent

61
Q

Right to Confront Witnesses

A

Face-to-face confrontation not vioalted when preventing serves:

(1) Important public purpose and
(2) Reliability of witness is assured

Defendant who is disruptive may be removed from courtroom

62
Q

Guilty Pleas

A

Court will not disturb guilty pleas after sentencing

If plead guilty, judge must address on record:

(1) Nature of charge
(2) Max authorized penalty and any mandatory minimum; and
(3) Right to plead not guilty and demand trial.

63
Q

Withdrawing Guilty Plea

A

(1) Involuntary
(2) Lack of jurisdiction
(3) Ineffective assistance of counsel
(4) Failure of prosecutor to keep agreed upon plea bargaining

64
Q

Death Penalty

A

Any statute is unconstitutional if it does not give defendant chance to present mitigating facts and circumstances

No auto category for death penalty

Only jury may determine aggravating factors, not judge

65
Q

Double Jeopardy

A

Attaches in jury trial when jury is sworn

Attaches in bench trial when first witness is sworn

Generally, does not attach in civil trials

Cannot be retried for lesser offense, once tried for greater offense

66
Q

Exceptions permitting retrial

A

(1) Jury unable to agree upon verdict
(2) Mistrials for manifest necessity
(3) Retrial after successful appeal
(4) Breach of agreed upon plea bargain

67
Q

5th Amendment Privilege Against Compelled Testimony

A

Can be asserted by anyone in any case

Must be asserted first time question is asked, or it is waived in subsequent criminal prosecutions

Must be claimed in civil proceedings to bar waiver for later criminal prosecution

68
Q

Non-Testimonial Evidence that can be Compelled

A

(1) Blood Sample
(2) Handwriting
(3) Voice
(4) Hair

69
Q

Fifth Amendment and Prosecutorial Conduct

A

(1) Unconstitutional for prosecutor to make negative comment on defendant’s failure to testify or choosing to remain silent after being given Miranda warnings
(2) However, can comment on failure to take stand when comment is in response to defense counsel assertion that defendant was not allowed to explain his side of story
(3) Also can comment on silence before Miranda rights given
(4) Harmless Error test applies

70
Q

Fifth Amendment Privilege Elimination

A

(1) Grant of immunity
(2) No possibility of incrimination
(3) Waiver

Bar Exam (3 decks)

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