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Flashcards in Crim Pro Deck (74):

Governmental Action

Constitutional protections apply only to government action
- Private persons acting as government agents
- Defense counsel (public and private) treated as government actors for purposes of the Sixth Amendment with respect to assistance of counsel


Arrests and Seizures of Persons: General

Police can approach anyone in a public place, and unless the encounters escalates to police preventing the person from moving around or leaving, there is no real constraint of what the police can do and no protection against what they discover



Occurs when an officer, by means of physical force or show of authority, intentionally terminates or restrains the subject's freedom of movement

Test: Whether a reasonable person would feel free to disregard the officer


Types of Seizures

- Stop and Frisk (Terry Stops)
- Traffic Stops
- Arrests
- Warrantless arrests


Stop and Frisk

An officer can stop an individual when the officer has reasonable suspicion, based on articulable facts, to believe the suspect is or is about to be engaged in criminal behavior
- can pat down detainee for weapons, but cannot initiate a search for evidence
- Can seize objects whose shape makes their identity obvious
- If probable cause develops then officer can make an arrest


Traffic Stops

Officers do not need reasonable suspicion to stop drivers if they pull over everyone



Requires probable cause to believe that the arrested individual has committed a crime
- with or without a warrant


Arrest Warrant

Authorizes an officer to arrest another

Issued by a neutral and detached magistrate based on finding of probable cause to believe that the named individual has committed a particular crime. The warrant must name the person and identify the crime
- allows officer to enter a home to arrest the individual

Can arrest inside dwelling without warrant if:
1) exigent circumstances (hot pursuit or danger to others)
2) consent to enter


Warrantless Arrests

A warrant is not required if the officer witnessed a crime being committed or someone told the officer a crime has been committed
- If crime was not committed in the officer's presence, the officer can make an arrest only for a felony


Searches Incident to Arrest

A lawful arrest permits the arresting officers to make a contemporaneous search of the person arrested and the immediate area surrounding the person to:
- protect the officers' safety and public safety; and
- to prevent the destruction of evidence

Arrest on street: suspect and his wingspan
Arrest at home: suspect his immediate arrest area
Arrest in car: passenger compartment of vehicle as long as the person/suspect still has access to the vehicle


Inventory Searches

When the police arrest a driver and impound his car, it may be searched for inventory purposes


What is a "Search"?

Occurs when the government conduct violates a reasonable expectation of privacy


Reasonable Expectation of privacy

- Homes
- Hotels
- Offices
- Backyard of your home (curtilage)
- Luggage

- Public streets
- Open fields
- Garbage cans
- Abandoned property


Search Warrant

Generally, the government needs a warrant to conduct a search if there is a reasonable expectation of privacy

1) Issued by neutral and detached magistrate
2) Based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of crime
3) Must describe the place and property to be searched with particularity

If warrant invalid, items seized will be excluded from the prosecution's case-in-chief


Search Warrant Exceptions

- Exigent Circumstances
- Search Incident to Arrest
- Consent
- Automobiles
- Plain View
- Evidence obtained from administrative searches
- Stop and Frisk


Exigent Circumstances

Officers are entitled to secure premises while they obtain a warrant

If officers are in "hot pursuit" or immediate danger then they may conduct a search without getting a warrant first
- warrant IS necessary for a search if officers make themselves create the exigent circumstances


Search Incident to Lawful Arrest

If the arrest was lawful, a search warrant is unnecessary
- Scope limited to things within the reach of the defendant
- can include taking a DNA sample from the arrestee if crime is serious


Consent to Search

A defendant/suspect can consent to a search
- consent does NOT require the officer to inform the subject of his right to refuse

A third party with apparent authority can allow a search
- but if present occupant objects then evidence cannot be used against him



If police have probable cause to believe an automobile contains contraband, they can search those parts of the vehicle, and containers inside, which could contain that contraband, but they cannot search other areas or containers


Plain View

If police are legally on the premises, they can seize any item in plain view (or plain smell), even if that item was not named in the warrant


Evidence Obtained from Administrative Searches

Police do not need search warrants to conduct administrative searches

Administrative warrants:
- do not require probable cause (fire or health inspection)
- Evidence, instrumentality, or fruit of a crime can be seized if seen during an administrative search

Warrantless administrative searches:
- conducted for non-investigative purposes, but if they turn up evidence of a crime, it can be used for arrest and subsequent prosecution


Fifth Amendment

Provides, among other things, that no person shall be compelled in any criminal case to be a witness against himself

- natural persons
- testimonial evidence (not physical) that would be incriminating
- can be invoked in any proceeding as long as there is reason to believe the testimony might lead to future criminal prosecution


Fifth Amendment Statements by an Individual

- Must be made by individual to government

Miranda: Statements made as a result of custodial interrogation are inadmissible unless they are accompanied by procedural safeguards
- Custodial (arrested or otherwise not free to leave)
- Interrogation (asking questions or engaging in conversation or conduct that police knew or should know will elicit a response)


Miranda Warnings

Before conducting custodial interrogations, the police must inform the suspect:
- she has the right to remain silent;
- any statement she makes may be used against her in court;
- she has the right to consult an attorney and to have the attorney present during questioning; and
- she has the right to have an attorney appointed if she cannot afford one

Interrogators must ask whether defendant understands the rights


Invoking the Right to Remain Silent

If the defendant says she does not want to talk, the interrogation must cease.
- must be affirmatively invoked; not enough to just remain silent

After a substantial period of time, police can go back to the suspect, give warnings again, and seek to talk to her


Invoking Right to Counsel

Must be affirmatively invoked
- "I want a lawyer," not "I think I should talk to somebody"

Once invoked, all questioning must stop until either:
- the lawyer is present; or
- the defendant reinitiates contact with the police
(Exception: break of more than 2 weeks between first and second interrogation. Can re-Mirandize and look for waiver)


Public Safety Exception

When public safety is at risk, the police do not have to give Miranda warnings before questioning


Interrogation Tactics

A confession must be voluntary

Statements obtained by threats, even after warnings, are inadmissible

Confessions CAN BE the product of deceit and still be voluntary and admissible


Consequences of Fifth Amendment Violations

1. Involuntarily Obtained Statements
- never admissible against a defendant
- evidence obtained as the result of an involuntary statement is fruit of the poisonous tree and is not admissible

2. Miranda Violation Statements
- inadmissible in prosecution's case in chief
- can be admitted for impeachment purposes to challenge credibility
- evidence obtained as a result of a voluntary statement taken in violation of Miranda is admissible


The Sixth Amendment

In addition to the Fifth Amendment right to counsel for custodial interrogations, the Sixth Amendment explicitly provides a criminal defendant with "the assistance of counsel for his defense"


Right to Counsel: Sixth vs. Fifth Amendments

- automatically attaches once there have been formal charges, unless knowingly and intelligently waived
- offense-specific. Defendant only has right to counsel with regard to offenses for which he has been charged (can be questioned with respect to unrelated charges)

- must be affirmatively invoked
- applies to custodial interrogations for any charge


When Does Sixth Amendment Right to Counsel Apply?

To all felony prosecutions and to any misdemeanor prosecutions in which jail time or suspended jail sentence is imposed

to all critical stages of prosecution


Types of Identification Procedures

Photo arrays and lineups

Photo arrays: neither the defendant has the right to be present, but police must turn over the array to the defendant

Pre-Indictment Lineups: no right to counsel

Post-Indictment Lineups: Right to have counsel present. If violated, evidence must be excluded


Admissibility of Identification Procedures

Court, upon defendant's motion, may suppress if lineup was impermissibly suggestive

If the prosecution can establish by clear and convincing evidence that the witness would have identified the defendant without the suggestive lineup, the court will permit the in-court identification even if it suppresses the result of the lineup


The Exclusionary Rule

Illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal interrogation, is inadmissible at the criminal trial of the person whose rights were violated
- Applies at trial and not to pretrial proceedings



A defendant cannot raise a violation of anyone else's constitutional rights

Exception: passengers are deemed to have been seized when the driver is arrested, so they can challenge the constitutionality of the stop


Exclusionary Rule Exceptions

1) Knock and Announce
2) Inevitable Discovery
3) Independent Source
4) Attenuation in the Causal Chain
5) Good Faith
5 1/2) Isolated Negligence by Law Enforcement Personnel


Exclusionary Rule Exceptions: Knock and Announce

Although officers executing an arrest warrant at a residence are required to knock and request admission, if they fail to do so and discover evidence, that evidence is admissible


Exclusionary Rule Exceptions: Inevitable Discovery

If the evidence would have been discovered anyway through lawful means, it will be admissible


Exclusionary Rule Exceptions: Independent Source

Relevant evidence discovered on the basis of an independent source will be admissible


Exclusionary Rule Exceptions: Attenuation in the Causal Chain

Intervening events and the passage of time can remove the taint


Exclusionary Rule Exceptions: Good Faith

When officers act in good faith reliance on either 1) an existing law that was either later declared unconstitutional or 2) a warrant that, while facially valid, is later found to be defective, the evidence obtained may still be used

Unless warrant:
- not obtained by fraud
- not defective on its face
- magistrate did not wholly abandon his judicial role


Exclusionary Rule Exceptions: Isolated Negligence

Isolated negligence by law enforcement personnel does not necessarily trigger the exclusionary rule



Under the Fifth Amendment's Presentment Clause, all felony charges must be initiated by indictment unless the defendant waives indictment
- Shows probable cause

(has not be incorporated to the states, so states have choice of grand jury indictment or information)


Proceedings Before Grand Jury

Grand juries can consider evidence that involves hearsay or has been obtained in violation of the Constitution
- held in secret
- majority vote (not unanimous)

Prosecutors: no duty to present exculpatory evidence to grand jury

Defendants: no right to appear before grand jury or call witnesses

Witnesses: no right to bring counsel within grand jury room



The Eighth Amendment forbids the setting of excessive bail, but does not state outright that bail must be offered pending trial

General rule: Bail available unless defendant poses a flight risk or danger to the community


Guilty Pleas

A majority of defendants do not go to trial; the charges are either dismiss or the defendant pleads guilty

A guilty plea waives the various rights a defendant would otherwise have
- valid if defendant knowingly and intelligently waives these rights

Plea allocution, judge:
- informs defendant and rights and ensures understanding
- informs defendant of possible sentences
- makes sure there is a factual basis for the plea
- determines that plea did not result from improper force, threats, or promises


Defendant's Right to a Jury Trial

The Sixth Amendment provides a right to jury trial for all serious offenses, providing he asks for it.

Serious offenses are those for which the authorized punishment is more than six months


Jury Size

Federal: Criminal case must have 12 members and must decide the case unanimously

States: Can use juries of 6 or more in criminal cases If a state uses 12 members, the juries do not have to be unanimous


Jury Selection

1. Jury Pool
- fair cross-section of the community from which no distinctive group is excluded

2. Voir Dire
- For-Cause Challenges: jurors can be removed for cause when they reveal something that will prevent them from deliberating fairly. Limitless challenges.
- Peremptory Challenges: can be made for anything. Statutorily limited. Cannot challenge on the basis of race or sex (Batson doctrine)


Speedy Trial Rights

Defendants can be injured by the passage of time between an alleged crime and their trial
- Due Process Clause: protects against pre-accusation delay (relatively toothless, SOL)
- Speedy Process Clause of the Sixth Amendment: protects against delay between arrest/indictment and triaal


Speedy Trial Clause Claim Factors

- Length of Delay
- Reason for Delay
- Whether the defendant asserted his right to a speedy trial
- Prejudice to the defendant


Public Trial Rights

The Sixth Amendment and First Amendment, taken together, protect the rights of the defendant (Sixth) and the public (First) to attend public trials
- some discretion to close proceedings if substantial likelihood of prejudice or unfairness


The Confrontation Clause

The Sixth Amendment guarantees defendants the right to confront the witnesses against them, as well as the right to compulsory process to produce their own witnesses


Crawford Doctrine

If a statement is testimonial then the Sixth Amendment bars admission of the statement if:
- The declarant is unavailable; and
- The defendant had no prior opportunity to cross-examine the witness


Bruton Category

A defendant's own statements are always admissible against him (even if defendant does not testify at trial)

If there are co-defendants, a non-testifying co-defendant's statements are inadmissible against the co-defendant


Defendant's Right to Present Witnesses

The defendant has the right to testify on his own behalf. He also has the right to compulsory process to obtain witnesses in his defense


Burden of Proof

The prosecution must prove every element of the crime beyond a reasonable doubt
- The government can place the burden of proof with regard to affirmative defenses on the defendant



The Due Process Clause requires that judges possess neither actual nor apparent bias

Actual bias consists of interests that would impair the judge's impartiality


Prosecutorial Duties

1) Turn over all materially exculpatory evidence to the defense (Brady Doctrine) (includes evidence that tends to show innocence or would enable the defense to impeach the prosecution witnesses)
2) May not knowingly present false testimony
3) May not contact a defendant outside the presence of his counsel
4) May not comment on defendant's failure to testify at trial or make unfair remarks about the defendant to the jury


Prosecutorial Misconduct

Prosecutorial conduct that has a reasonable possibility of affecting the verdict may require a mistrial or reversal of a conviction
- other forms may result in discipline to prosecutor but generally does not result in any consequence for a defendant


Defendant Counsel

The Supreme Court has held that the Sixth Amendment not only guarantees defendants the right to assistance of counsel, it also guarantees them effective assistance f counsel


Conflicts of Interest

Joint Representation: when a lawyer represents several defendants, problems may arise because of the possibility of divided loyalty
- judge must warn the defendants of risks of joint representation when there is an actual conflict
- judge can decide not to allow joint representation

If a conflict of interest actually affects counsel[s behavior, there is a presumption of prejudice
- defendant may obtain a new trial


Effective Assistance

1. Performance: defense counsel's performance must meet objectively reasonable conduct

2. Prejudice: deficient performance prejudiced the defendant. There is a reasonable probability that, had counsel performed effectively, the result would have been different


Choice of Counsel

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is:
- properly admitted in the jurisdiction;
- available for trial; and
- there is not conflict or other reason to disqualify the lawyer

Denial of the retained counsel results in reversal of conviction


Proceeding Pro Se

Defendants are entitled to waive the right to counsel and to represent themselves

A defendant who proceeds pro se does not have a constitutional right to a "back-up" lawyer


The Cruel and Unusual Punishment Clause

1. Length of Prison Sentences
2. Capital Punishment
3. Other Types of Sentences or Punishment


Length of Prison Sentences

The Supreme Court has given the government free rein to authorize virtually any length sentence for virtually any crime

Exception: juveniles cannot be sentenced to life without parole for non-homicide crimes


Capital Punishment

In cases that involve an actual individual victim, the Supreme court has held that capital punishment can be imposed only in cases in which the victim dies

Cannot be imposed on:
- defendants who were under the age of 18 when they committed the crime
- mentally retarded defendants
- defendants who are insane at the time of execution


Other Types of Sentences or Punishments

The Eighth Amendment also prohibits the imposition of cruel or unusual/degrading punishments as well as excessive. You must have been convicted of a crime for the Eighth Amendment to apply.
- extended to protect degrading things from being done to prison inmates (including denial of medical treatment and use of hitching posts)


Double Jeopardy Clause

Protects against:
1) Prosecution for the same offense after acquittal
2) Prosecution for the same offense after conviction
3) Multiple prosecutions or punishments for the same offense


Double Jeopardy Clause: What counts as the same offense?

Blockburger Test: Asks whether each statutory provision requires proof of an element that the other does not

Same Victim Test: Offenses with different victims are separate offenses for double jeopardy purposes. Killing two victims with one shot can be prosecuted as two separate crimes

Separate Sovereigns Rule: If two different sovereigns have jurisdiction over the crime committed, they can each try the defendant separately


Attachment and End of Jeopardy

Attaches when jury is sworn in, or in bench trial, when first witness is sworn in

Acquittal: if jury acquits the defendants, it is the end of the case and the defendant cannot be tried by the same jurisdiction for the same offense

Conviction: if the jury convicts the defendant and he appeals, he can be retried unless the reversal was based on insufficiency of evidence

- Manifest necessity: can be retried (jury deadlocked/defense misconduct)
- No manifest necessity: defendant cannot be retried by that jurisdiction


The Apprendi Doctrine

(Sixth Amendment)
Defendant is entitled, as a matter of Constitutional law, to have the jury decide by proof beyond a reasonable doubt, all of the elements necessary to impose a particular criminal punishment

Exception: Sentence enhancement based on prior criminal convictions need not be charged in the case that results in the higher sentence