Crim Proc Flashcards
1
Q
Exclusionary Rule (ER)
A
Evidence obtained in violation of defendant’s constitutional rights is inadmissible against defendant in trial.
2
Q
State Action
A
4th, 5th, 6th, 8th Amendments protect against governmental conduct, e.g., by police, government agents.
3
Q
Fruit of the Poisonous Tree
A
All derivative evidence obtained via inadmissible evidence is also excluded.
4
Q
Scope of ER
A
While evidence can be suppressed, violation does not entitle defendant to have indictment or prosecution dismissed.
5
Q
Exceptions to ER
A
Taint of derivative “fruit” may be dissipated even if traceable to an initial violation of rights.
6
Q
Exceptions to ER - Grand Jury
A
A grand jury may hear and use any piece of evidence regardless of its admissibility.
7
Q
Exceptions to ER - Good Faith Reliance on Warrant
A
Reasonably well-trained PO would have believed warrant was valid (e.g., clerical error).
8
Q
Exceptions to ER - Knock and Announce Violations
A
Do not automatically trigger ER; exclusion is not a remedy.
9
Q
Exceptions to ER - Independent Source
A
Independent source of derivative evidence, source being separate from original illegality. May “rediscover” initially illegal evidence under valid warrant if police would have applied for and received warrant anyway.
10
Q
Exceptions to ER - Unrelated Crime
A
Evidence of an entirely unrelated crime is untainted and admissible (despite original illegality).
11
Q
Exceptions to ER - Inevitable Discovery
A
Police would have discovered the evidence regardless of legality or unconstitutional police conduct (e.g., via systematic search).
12
Q
Exceptions to ER - Intervening Act of Free Will by Defendant
A
Attenuation, e.g., subsequent confession after release after illegal arrest.
13
Q
Exceptions to ER - Impeachment of Defendant’s Testimony Only
A
1) Confession taken in violation of Miranda and 2) real or physical evidence seized from illegal search are still admissible to impeach defendant’s trial testimony.
14
Q
Exceptions to ER - Attenuation
A
Evidence with a “but for” link to a poison tree may be so distant from the initial illegality that the taint of poison is purged and the evidence is admissible.
15
Q
Exceptions to ER - Miranda Violation
A
Miranda violation is not a poisonous tree: Can admit evidence seized via statements obtained from failure to give Miranda warnings, although a confession itself is not admissible if obtained in violation of Miranda.
16
Q
4TH AMENDMENT
A
Protects against violation of constitutionally protected privacy
17
Q
4th Amendment - General Rule
A
The 4th Amendment protects against unreasonable searches and seizures by the government or its agents.
18
Q
4th Amendment - Standing (Threshold Issue)
A
To have standing, defendant must have had a reasonable expectation of privacy (REP) in the place searched—subjectively + objectively (society is prepared to accept the expectation of privacy as reasonable).
19
Q
4th Amendment - REP
A
REP also exists if defendant lived in (e.g., home) or stayed overnight at the premises searched. Mere ownership, as opposed to privacy or possessory interest in place or item, is insufficient.
20
Q
4th Amendment - No REP
A
No REP where held out to public, e.g., knowingly exposed to public, depends on the luggage/home/curtilage, smell of luggage, misplaced trust in false friend, sense-enhancing tech available for public use, car in public.
21
Q
4th Amendment - Warrants
A
A search/seizure must be made with a valid warrant, which must be: 1) issued by neutral detached magistrate, 2) based on probable cause, and 3) described with particularity the place to be searched or item/person to be seized.
22
Q
Warrants - Probable Cause (PC)
A
A fair probability that would warrant a reasonable person to conclude that evidence of a crime can be found at a particular place or that a particular person committed a crime. PC can be based on an informant’s tip, which must meet the totality of the circumstances (TOTC) test: practical, common-sense considerations showing probability of criminal activity based on informant’s veracity, basis of informant’s knowledge, and corroboration from police investigation predictive information showing insider knowledge. May be based on an anonymous tip.
23
Q
Warrants - Recent Facts
A
Police must show recent facts, not hunches or “known for”. To attack inaccuracies in a facially valid warrant, A must show material false statements made intentionally or recklessly (negligently).
24
Q
Warrants - Scope
A
Reasonably necessary to discover items. Must be executed w/o unreasonable delay while PC exists.
25
Warrants - Search of Premises/Car
Excludes the people present (mere presence doctrine), unless PC to arrest (search incident). PC that item on person, reasonable suspicion (RS) of danger (frisk), or identified in warrant.
26
Warrants - Knock and Announce Rule
Police must give notice and wait a reasonable time before entering to execute warrant, except when there is RS that announcing will lead to destruction of evidence, endanger officers, or be futile.
27
Warrants - Good Faith Exception to Invalid Warrant
Evidence or person seized via a facially valid (particular) but defective warrant is admissible if a reasonably well-trained PO acted in good faith thinking that the warrant was valid.
28
Exceptions to Warrants Generally (CHAMPED)
Where PC alone enough to justify a search or seizure without warrant.
29
Exceptions to Warrants - Community Caretaking
Going into home to make sure there isn’t further injury (based on objective TOTC).
30
Exceptions to Warrants - Hot Pursuit
Of fleeing felon suspects (where speed and safety are essential): PO may make warrantless search/seizure related to pursuit, or enter anyone’s home without warrant. Evidence in plain view will be admissible.
31
Exceptions to Warrants - Automobile
Any vehicle capable of moving is covered (not mobile home fixed to the ground).
32
Automobile - Stop Car
Needs RS of violation of law (can ripen to PC) or PC to believe criminal evidence is in car.
33
Automobile - PC for Evidence in Car
If PC to believe criminal evidence is in car, can search whole car, closed containers (size limited to where evidence could be), and its contents, including passenger luggage.
34
Automobile - Container in Car
If PC to believe evidence is in a container in the car, search of car limited to that container (and where that container could be); once package is found, search is limited to the package.
35
Automobile - Contraband
If PC to believe automobile itself is contraband, can seize it without warrant.
36
Exceptions to Warrants - Minor Intrusion
Into body in reasonable manner (e.g., breathalyzer test tube).
37
Exceptions to Warrants - Plain View
Police officer (PO) is lawfully present and positioned + “immediately apparent” that item is subject to seizure + PC to believe evidence is associated with crime (can’t move item for a better view).
38
Exceptions to Warrants - Exigency or Destruction of Evidence
PC to believe evidence likely to disappear before warrant can be obtained (e.g., blood alcohol concentration, scraping under fingernail). Warrantless search must end roughly when evidence is secured.
39
Exceptions to Seizure Warrants (ASS)
PC generally needed, RS sufficient for Terry stop or frisk
40
Arrest
Need PC for any arrest. No W is needed in a public place, but an arrest warrant is required for arrest inside one's home (search warrant needed if someone else’s home), unless in hot pursuit or exigency.
41
Stop and Frisk (Terry stop and Terry frisk)
Need RS. Stop: brief detention for investigative purpose, no longer than necessary to verify suspicion. Frisk: pat down for weapons only if RS that suspect has weapon.
42
Reasonable Suspicion (RS)
Specific and articulable facts (unusual conduct) + rational inferences from the facts (criminal activity may be afoot (stop); suspect may be armed or dangerous (frisk)).
43
Plain Feel
During pat down, PO may seize items reasonably believed to be weapon or contraband (admissible as evidence).
44
Auto Stop (RS)
Per RS, may frisk driver/passenger or search car limited to where weapon may be. If PC arises during stop, it could become an arrest. PO can then conduct a search incident to arrest.
45
Seizure by Deadly Force
Under objectively “reasonable” circumstances, deadly force (e.g., shooting) may not be used unless necessary to prevent escape + PC to believe that suspect poses significant threat of death or serious injury to PO or others + where feasible, some warning has been given.
46
Exceptions to Search & Seizure Warrants (SCAT)
No W or PC needed.
47
Search Incident to Lawful Arrest
Arrest must be lawful (PC exists). May only include arrestee's person and the area “within his immediate control” (where he might obtain weapon or destroy evidence), contemporaneous in time & place with arrest.
48
Contemporaneous
Not necessarily “simultaneous” (e.g., can search car after securing arrestee).
49
Protective Sweep
At home when executing arrest warrant: If police has RS of danger/attack from others in the home, may sweep spaces where another person might be hiding (e.g., not drawers).
50
Vehicle Itself
2 ways — unsecured arrestee or reasonable belief of criminal evidence in vehicle. PO can search inside vehicle (excl. trunk unless PC) incident to occupant’s arrest only when arrestee is unsecured and within reaching distance of a compartment while arrested. Search of whole vehicle incident to a lawful arrest is allowed if it is reasonable to believe evidence relevant to the crime of arrest might be found in the vehicle.
51
Inventory Search
Police may conduct routine search of arrestee’s belongings or impounded car.
52
Consent Search
One with authority offers voluntary (based on TOTC) consent to the search.
53
Scope of Consent
Limited by reasonableness or an applicable exception.
54
Third-Party Consent
PO may enter premises relying on consent of one reasonably believed to have actual or apparent joint authority over the premises. Hotel or landlord has none until tenant vacates.
55
Physically Present Co-occupant’s Explicit Refusal
Refusal to permit entry prevails over third-party consent.
56
Nonconsenting Occupant
If nonconsenting occupant is removed from premises for reason unrelated to refusal (e.g., lawful arrest), PO may search if other occupant consents.
57
Administrative or Special-needs Search
No W, PC or RS needed. Not traditional crime control. Check general “reasonableness” of justification and scope of search.
58
Public Schools
Search by public school officials (e.g., search bag to investigate violation of school rules) must be reasonable. Search is reasonable if moderate chance of finding evidence + procedure reasonably related to objective of search + search not excessively intrusive.
59
Businesses Subject to Heavy Regulation
(e.g., junkyard) may get warrantless, unannounced searches.
60
Checkpoints
Suspicionless stopping and searching OK if done routinely, not randomly, at fixed point.
61
Borders
No W or PC needed for border searches. No 4A rights at border. May stop vehicle with RS.
62
Other Examples
Government workplaces if reasonable scope for work-related need, arrestee belongings.
63
Terry Stop
May be triggered by reasonable suspicion (see §4).
64
5TH AMENDMENT - Privilege Against Self-Incrimination
Privilege against self-incrimination protects against government-coerced confessions.
65
5TH AMENDMENT - Privilege Against Self-Incrimination - Refusal
A may refuse to answer a question whenever his response might result in self-incrimination or reasonable possibility of contributing to his criminal conviction. A must assert the right to silence or right to counsel for questioning to stop.
66
5TH AMENDMENT - Privilege Against Self-Incrimination - Compelled Testimonial Evidence
Only governs compelled testimonial evidence (not physical). Body, voice sample, lineup, handwriting not protected.
67
5TH AMENDMENT - Privilege Against Self-Incrimination - Voluntary Statement After Miranda Warning
May still be admissible as a fruit.
68
5TH AMENDMENT - Privilege Against Self-Incrimination - Ways to Eliminate Privilege
Privilege does not apply in these cases:
69
5TH AMENDMENT - Privilege Against Self-Incrimination - Use and Derivative Immunity
Testimony and derived evidence can't be used against immunized A (evidence from independent source may still be used).
70
5TH AMENDMENT - Privilege Against Self-Incrimination - Transactional Immunity
Complete protection from prosecution for self-incriminating testimony.
71
5TH AMENDMENT - Privilege Against Self-Incrimination - Extinguish by Waiver
A waives privilege against self-incrimination and takes the stand.
72
5TH AMENDMENT - Privilege Against Self-Incrimination - No Possibility of Incrimination
E.g., statute of limitations runs out.
73
5TH AMENDMENT - Voluntariness
For a self-incriminating statement (such as A's admission) to be admissible under 14th Amendment DPC, it must be free and voluntary as determined by TOTC (not motivated by police coercion or official pressure).
74
5TH AMENDMENT - Miranda Warning
Must be given before any custodial interrogation. For A's statement to be admissible under 5A privilege against self-incrimination (in IT's case or to establish PC), A must have been reasonably informed of his right to remain silent (anything said can be used against him in court) and right to an attorney's presence (and if he cannot afford an attorney, one will be provided, if he wants). No exceptions even for minor crimes.
75
5TH AMENDMENT - Miranda Warning - Custody
Reasonable person in PO's presence feels he is not free to leave or end the encounter.
76
5TH AMENDMENT - Miranda Warning - Traffic Detention
Non-custodial in nature.
77
5TH AMENDMENT - Miranda Warning - Interrogation
Reasonable PO knows/should know he is likely to elicit incriminating response.
78
5TH AMENDMENT - Miranda Warning - Routine Questioning
E.g., booking, probation interview is not considered interrogation.
79
5TH AMENDMENT - Miranda Warning - Even If No Interrogation
A's statement must still satisfy 14A DPC voluntariness (see § II-e).
80
5TH AMENDMENT - Miranda Warning - Forbids Coercion
Not strategic deception: Warning not required when suspect is unaware he is speaking to a police informant (or non-PO who relays statement) and gives voluntary statement.
81
5TH AMENDMENT - Miranda Violation
Failure to give warning before custodial interrogation is inadmissibility in IT's case in chief. OK to use to impeach credibility of A's testimony, cross-exam, etc.
82
5TH AMENDMENT - Right to Silence
Right to silence forbids IT's negative comments on A's silence or failure to testify. Drawing adverse inference subjects any conviction to "harmless error test" (conviction not overturned if other overwhelming evidence).
83
5TH AMENDMENT - Waiver
It must show knowing, voluntary, intelligent conduct showing A's explicit/implied willingness to make statement based on TOTC (e.g., receiving Miranda but choosing to answer is likely sufficient).
84
5TH AMENDMENT - Invocation
A may terminate interrogation any time by unambiguously invoking right to silence or counsel.
85
5TH AMENDMENT - Re-initiation by PO
PO may reinitiate questions after right to silence on unrelated crime after some time + re-Mirandizing.
86
5TH AMENDMENT - Re-initiation After Right to Counsel
Only if A reinitiates. No questioning unless counsel at interrogation.
87
5TH AMENDMENT - Impeachment
Statements obtained in violation of Miranda (but not post-Miranda silence) are admissible to impeach A.
88
5TH AMENDMENT - Public Safety Exception
Warnings need not be given if necessary for public safety (e.g., to ask downed robber where gun is, A has info about bomb that could go off in public).
89
5TH AMENDMENT - Double Jeopardy
Prevents A from being criminally tried twice for the same offense arising from the same set of facts after a determination on the merits.
90
5TH AMENDMENT - Double Jeopardy - Same Offense
Two crimes are the same offense, unless each crime requires proof of a unique element.
91
5TH AMENDMENT - Double Jeopardy - Greater Offense
Jeopardy attaching to greater offense bars retrial for lesser included offenses (robbery → larceny not permitted - "same offense").
92
5TH AMENDMENT - Double Jeopardy - Lesser Included Offense
Jeopardy attaching to lesser included offense bars retrial for a greater offense, unless IT could not have tried the 2nd crime at the time (battery conviction → V later dies as a result → retrial for murder permitted).
93
5TH AMENDMENT - Double Jeopardy - Exceptions
Legislative intent: 2x punishments OK if statute provides (e.g., robbery + use of weapon). New evidence for greater offense becomes available since prosecution of lesser offense (now different set of facts).
94
5TH AMENDMENT - Jeopardy Attaches
When 1st witness sworn in (non-jury trial) or jury is impaneled (jury trial). Does not attach in civil proceedings (OK to have criminal and civil proceedings for same offense).
95
5TH AMENDMENT - Separate Sovereignties
A can be prosecuted for the same offense in different jurisdictions (federal/state/criminal/civil levels).
96
5TH AMENDMENT - Permitting Retrial
Breach of plea bargain by A, retrial after A's successful appeal, trial is aborted for manifest necessity (e.g., medical emergency), terminated by A not on merits, or ends in hung jury.
97
6TH AMENDMENT
Prevents elicitation of incriminating statements by government after formal charge
98
6TH AMENDMENT - Right to Counsel
A has the right to counsel at critical stages of prosecution, e.g., post-indictment interrogation and lineup, guilty plea.
99
6TH AMENDMENT - Right to Counsel - Investigatory Stages
N/A at investigatory stages, e.g., pre-charge lineup, photo ID, body sampling, parole/probation hearing.
100
6TH AMENDMENT - Right to Counsel - Bad Faith
Unless bad faith by police (e.g., setup intentional surprise encounter for witness and A).
101
6TH AMENDMENT - Offense Specific
Applies to the charge 6A right is attached to. A can be questioned on unrelated charge.
102
6TH AMENDMENT - Violation
Violation of this right at trial requires reversal. For non-trial denials of counsel, apply harmless error test.
103
6TH AMENDMENT - Waiver
A's knowing and intelligent relinquishment of right, considering TOTC (A's character, circumstances). A may defend self (pro se) at trial with waiver and trial judge's discretion that A is competent.
104
6TH AMENDMENT - Right Triggered by Actual Result
Any crime that results in imprisonment meant that A had the right to counsel.
105
6TH AMENDMENT - Pretrial Identifications
In post-indictment lineup or showup, right to counsel at all times he is visible to witnesses.
106
6TH AMENDMENT - Pretrial IDs
Due process (5A/14A) applies to all pretrial IDs: Any lineup, showup, or photo ID is inadmissible as denying due process if it was unnecessarily suggestive + there is substantial likelihood of misidentification.
107
6TH AMENDMENT - Pretrial IDs - Consider Suggestive Factors
Consider what's "suggestive": distinguishing features (e.g., suspect of one race in lineup with other races), witness's opportunity to see A at the scene, witness's certainty, time elapsed since crime.
108
6TH AMENDMENT - Pretrial IDs - Exceptions
Necessary under circumstances (e.g., lineup is impractical because witness is near death), or ID is reliable based on a TOTC assessment.
109
6TH AMENDMENT - Pretrial IDs - Remedy
Results of pretrial ID is per se inadmissible at trial, unless independent source exists under TOTC. TOTC factors: opportunity to view A at scene, ease with which witness can ID A, prior misidentifications.
110
6TH AMENDMENT - Duty to Disclose Exculpatory Evidence
IT must disclose evidence that is favorable to A and material (reasonable probability of different outcome). Failure to disclose violates DPC and is grounds for reversing a conviction.
111
6TH AMENDMENT - Effective Assistance of Counsel
6A right to counsel includes the right to effective counsel. Effective assistance is generally presumed. To claim ineffective assistance, A must show deficient performance + factual prejudice.
112
6TH AMENDMENT - Deficient Performance
Show that lawyer's acts/omissions reasonably competent attorney under normal standards would not make.
113
6TH AMENDMENT - Actual Prejudice
Reasonable probability (20-25%) that the result would have been different but for errors.
114
6TH AMENDMENT - Preliminary Showing
Where A made a preliminary showing that he is likely to be able to use insanity defense, government must provide a psychiatrist for preparation of his defense.
115
6TH AMENDMENT - Conflict of Interest
It is a 6A violation to represent more than one A when a conflict of interest jeopardizes rights of any co-A or adversely affects the attorney's performance (burden on A to show the conflict's adverse effect).
116
6TH AMENDMENT - Right to Self-Representation
A is available to A as long as there is a voluntary waiver of the right to counsel at trial by A. Judge must consider A's waiver to be knowing + intelligent (see § III-a-iv), and competent to proceed pro se. EXCEPTION: A does not have right to self-rep on appeal (A may waive right to counsel).
117
6TH AMENDMENT - Right to Speedy Trial
Attaches under 6A once A is arrested or charged (knowledge of charges is irrelevant). Remedy for violation is dismissal of case. Violation factors: length of delay (e.g., 1 year), reason for delay (no due diligence by IT), whether A asserted right, prejudice to A (e.g., destruction of evidence, oppressive incarceration).
118
6TH AMENDMENT - Right to Jury Trial
"Serious" offenses only (if max authorized imprisonment is more than 6 months under 1 charge). Minimum number of jurors permissible is 6. Jury verdict must be unanimous in federal and state courts. A has right to select jury from representative cross-section of community BUT not to fair cross-section jury itself. 1. Peremptory challenge to exclude a potential juror based solely on race or gender violates EPC.
119
6TH AMENDMENT - Guilty Pleas
Must be voluntary + intelligent. Judge must ensure on the record that A understands (1) nature of charge and critical elements, (2) maximum and minimum possible penalties, (3) the right not to plead guilty, and (4) that by pleading guilty he waives the right to trial. Remedy for not meeting above standards: Withdraw plea and plead anew.
120
6TH AMENDMENT - Right to Confront Witnesses
A criminal A is guaranteed the right to confront his witnesses under 6A.
121
6TH AMENDMENT - Confrontation Clause
Any prior out-of-court testimonial statement by an unavailable witness cannot be used against A in criminal trial unless A had a prior opportunity to cross-examine the witness at the time the statement was made.
122
6TH AMENDMENT - Testimonial Statement
One used against an accused in criminal prosecution, solicited by the state for the primary purpose to establish or prove past events potentially relevant to later prosecution.
123
6TH AMENDMENT - Co-Defendant Confessions
If 2+ persons are tried together and one co-A gave a confession that implicates A, the right of confrontation prohibits use of that statement, even where it overlaps with A's own confession. BUT such a statement is admissible if all portions referring to A are eliminated, or confessing co-A takes the stand and subjects himself to cross-examination as to truth/falsity of statement, or confession is used to rebut A's argument that his confession was obtained involuntarily. No violation to remove disruptive A or where absence of confrontation serves an important public purpose.
124
5TH vs 6TH AMENDMENT - Right to Counsel
5TH AMENDMENT: Attaches when right to attorney is invoked before formal charges are filed. Not "offense specific." 6TH AMENDMENT: Attaches to "critical stages" after formal charges. Is "offense specific." A may be questioned on unrelated charges without violating 6A right to counsel but may still violate 5A right to counsel.
125
5TH vs 6TH AMENDMENT - Interrogation
5TH AMENDMENT: Custodial interrogation requires Miranda warning. Undercover/secret informant (unknown to A) may solicit information without Miranda warning. 6TH AMENDMENT: Once charged, no interrogation without lawyer present. Undercover PO may not deliberately question/elicit statements about crime for which A was indicted.
126
8TH AMENDMENT
Prohibits cruel and unusual punishment (does not apply to civil fines)
127
8TH AMENDMENT - Disproportionate Penalties
Applies to penalties that are grossly disproportionate to the seriousness of the offense committed.
128
8TH AMENDMENT - Death Penalty
No automatic death penalty may be imposed. But death penalty does not inherently violate 8A.
129
8TH AMENDMENT - Death Penalty - Imposed for Murder
May be imposed for murder under a statute that gives judge or jury reasonable discretion, full information concerning A, and guidance in making the decision. Statute must not be vague and must allow sentencing body (jury) to consider all mitigating evidence.
130
8TH AMENDMENT - Death Penalty - Felony Murder
May be imposed if A was major participant of felony murder & acted with reckless indifference to human life.
131
8TH AMENDMENT - Death Penalty - Unconstitutional
Unconstitutional if a death penalty statute does not give A a chance to present mitigating circumstances.
132
8TH AMENDMENT - Death Penalty - Mitigating Circumstances
Jury must be allowed to consider mitigating circumstances, impact on victim's family.
133
8TH AMENDMENT - Death Penalty - Minors, Mentally Disabled, Legally Insane
Cannot be imposed on minors at time of offense, mentally disabled, legally insane at time of execution.
134
8TH AMENDMENT - Bail
There is no constitutional right to bail. If it will be ineff
