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FL Civil Pro Bar Exam 2020 > Crim Pro - AMP > Flashcards

Flashcards in Crim Pro - AMP Deck (67)
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1

4th Amendment rule on seizures . . .

Individuals have a right to be free of "unreasonable... seizures." This rule covers both seizures ofproperty and seizures ofthe person.

2

Under section 90 of the Restatement (Second) of Contracts, a promisee could enforce a promise if . . .

1. he reasonably and foreseeably relied on the promise2. detrimental

3

If there is an anticipatory repudiation, then the nonbreaching party can . . .

(i) sue for damages, (ii) contract with a third party, or (iii) do nothing.

4

If the buyer became insolvent, the manufacturer could, under the U.C.C., require that . . .

the buyer pay cash upon delivery or give assurances of payment.

5

At common law, murder was _______, which is established by_______.

the killing of a human being with malice aforethought. The mental state of malice aforethought could be established with any one of the following states of mind: (i) intent to kill; (ii) intent to cause serious bodily harm; (iii) reckless indifference to an unjustifiably high risk to human life (“depraved heart”); or (iv) the intent to commit a dangerous felony (“felony murder”).

6

An accomplice is one who . . .

1. with the intent that the crime be committed, 2. aids, counsels, or encouragesthe principal3. before or during the commission of the crime.

7

The exclusionary rule does not apply in . . .

grand jury proceedings. According to United States v. Calandra (1974), illegally seized evidence is admissible in grand jury proceedings.

8

Merely being a passenger in someone else’s car does not . . .

create a legitimate expectation of privacy with regard to a search of the car. Something more is needed to have standing to challenge the search, such as if the roommate owned the car (not indicated by the facts).

9

Police have the authority to briefly detain a person for _____ even if they lack probable cause to arrest. To make such a stop, police must have _____. When the source of suspicion of criminal activity is an informant’s tip, the tip _____.

a. investigative purposesb. a reasonable suspicion supported by articulable facts of criminal activity or involvement in a completed crimec. must be accompanied by indicia of reliability sufficient to make the officer’s stop reasonableHere, the stop was based solely on an informant’s tip. Because the tip was anonymous and included nothing more than an accusation that a person standing on a certain street corner was selling drugs, it was not sufficient to justify the search. It needed to include more detail (e.g., predicting incriminating movement) to corroborate the accusation.

10

A school search will be held reasonable if . . .

(i) it offers a moderate chance of finding evidence of wrongdoing; (ii) the measures adopted to carry out the search are reasonably related to the objectives of the search; and (iii) the search is not excessively intru- sive in light of the age and sex of the student and the nature of the infraction. Here, even though the principal did not have probable cause to believe that the drugs were in the student’s purse, the principal did have sufficient reasonable grounds to search her purse.

11

Once the government has initiated adversary judicial criminal proceedings, the presence of counsel is a prerequisite to the conduct of a line-up. This right attaches . . .

as soon as the accused is within sight of a potential identification witness.

12

The Tenth Amendment prohibits Congress from . . .

Commandeering state officials such as by requiring them to do background checks on prospective handgun owners. Under the Tenth Amendment, the federal government may not require states to regulate their own citizens.

13

Grant of a writ of certiorari requires the agreement of at least . . .

four justices

14

If more than _______ months imprisonment is authorized, the offense is considered “serious” for determining whether a defendant has a constitutional right to a jury trial.

6
An offense is considered serious, making a jury trial a constitutional right, when more than six months imprisonment is authorized.

15

Cases by three-judge federal district court panels that grant or deny injunctive relief fall within the ________ jurisdiction of the Supreme Court.

mandatory appellate jurisdiction

16

The Fifth Amendment privilege protects what kind of evidence?

The Fifth Amendment privilege protects testimonial or communicative evidence. For a communication to be considered testimonial, it must explicitly relate a factual assertion or disclose information. Writing down one’s bank accounts would disclose information and thus be considered testimonial, permitting the person to raise the privilege. A person, however, may NOT refuse to produce a handwriting exemplar or a blood sample. The Fifth Amendment privilege does not protect real or physical evidence, so a state may require a person to produce blood samples, handwriting exemplars, or voice samples. A person also may NOT refuse to produce a subpoenaed document. A person served with a subpoena requiring production of a document cannot refuse to comply based on the Fifth Amendment privilege, because the act of producing the document is not testimonial.

17

With regard to the use of immunity to compel testimony, a state cannot use immunity to compel testimony unless

the immunity also applies in a federal prosecution.Therefore, federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa.Testimony obtained by a promise of immunity MAY be used in a prosecution for perjury committed during the immunized testimony.A grant of use and derivative use immunity does NOT guarantee immunity from prosecution for any crimes. Transactional immunity guarantees immunity from prosecution for any crimes related to the transaction about which the witness testifies.Transactional immunity does NOT allow the witness to be prosecuted from evidence derived from an independent source. Use and derivative use immunity allows the witness to be prosecuted if the prosecutor can show evidence was derived from a source independent of the immunized testimony.

18

The Blockburger test generally prohibits . . .

multiple punishments for the same offense.

19

The Blockburger test generally prohibits multiple punishments for the same offense. The exception to this rule is . . .

where the offenses are intended to carry separate punishments and are imposed at a single trial. This is true even though the offenses constitute the same crime under the Blockburger test. This rule requires imposing the punishments at a single trial, not at different trials.

20

The doctrine of collateral estoppel prohibits a defendant from being tried or convicted of a crime if:

A prior prosecution resulted in a factual determination inconsistent with one required for conviction. For example, if a defendant was charged with robbing an individual poker player and acquitted for insufficient evidence as to identity, the defendant cannot afterward be charged with robbery of a different poker player at the same table.If a prior prosecution resulted in a mistrial because of a hung jury or because a conviction was reversed on appeal, the Double Jeopardy Clause (not collateral estoppel) is at issue.

21

Under the Double Jeopardy Clause, a defendant cannot be retried for the same offense. The Court in Blockburger v. United States stated a test to determine what is “the same offense.”What is the best explanation of the Blockburger test?

Two crimes do not constitute the same offense if each crime requires proof of an element that the other crime does not require

22

Defendant signed a confession to a crime at the police station shortly after his arrest.Is this confession sufficient in and of itself to convict Defendant?

No, a criminal conviction cannot rest entirely on an uncorroborated extrajudicial confession. If the defendant does not admit guilt in court, the prosecution must introduce extrinsic evidence that, at the least, tends to establish the trustworthiness of the admission.

23

Prior to accepting the guilty plea, the judge must . . .

The judge must determine that the plea is voluntary and intelligent. The judge must also ensure that the defendant knows and understands the nature of the charge and the crucial elements of the crime, along with the maximum penalty and any mandatory minimum penalty. The judge also must ensure that the defendant understands his right to plead not guilty and that he waives the right to trial if he does plead guilty.

24

n _______ cases, the fact that the defendant and victim are of different races automatically entitles the defendant to question a prospective juror on racial bias.

capitalIn noncapital cases, regardless of whether they involve felonies or misedemeanors, the interracial aspect of the crime alone is not sufficient to allow questioning on racial bias.

25

When does a penalty constitute cruel and unusual punishment in violation of the Eighth Amendment?

When it is grossly disproportionate to the offense committed

26

The constitutional right to a jury trial in criminal cases applies __________ offenses.

Only to serious

27

If a defendant successfully appeals his conviction and is retried by the same judge and again convicted, under what circumstances (if any) may a judge impose a sentence harsher than the original sentence?

Only if the sentence is based on conduct on the part of the defendant occurring after the original sentencing proceedings.The purpose of this rule is to ensure that the judge des not impose a harsher sentence out of vindictiveness. (Note that the rule does not apply if the second trial is de novo by a different judge or the sentence is imposed by a jury who were not told of the first sentence.)

28

Under Miranda, if a detainee makes a request for counsel but the request is ambiguous, the police . . .

May continue questioning

29

If a defendant files a motion to suppress his confession claiming that he did not waive his Miranda rights, the government must show that the Miranda waiver was:

Voluntary and knowing (and the standard is by a preponderance of the evidence)The Supreme Court has held that to be a valid waiver of rights under Miranda, the government must show by a preponderance of evidence that the waiver was voluntary and knowing. However, if a detainee chooses to speak after being given Miranda warnings, a valid waiver usually will be found.NOTE: A valid waiver does not require a written acknowledgment. If a detainee received Miranda warnings and then chose to answer questions, that is a sufficient waiver of rights.

30

Miranda warnings may need to be given, depending on whether the suspect knows this person is employed by the police. Miranda generally applies only to interrogation by the publicly paid police. It does not apply where . . .

interrogation is by an informant who the defendant does not know is working for the police. The rationale is that the warnings are intended to offset the coercive nature of police-dominated interrogation, and if the defendant does not know that he is being interrogated by the police, there is no coercive atmosphere to offset.