Crimes Crim Pro Flashcards

Question

Approach for question

Answer 1

- 4 Step Approach for Evidentiary Search and Seizure Issues o (1) Government Action  Government action occurs when there is a search or seizure by a police officer. o (2) Standing  Rule: A person must have standing to object to a government search. A person has standing if: * (1) The search violate the defendant’s reasonable expectation of privacy; OR * (2) Physical intrusion into a constitutionally protected area to obtain information.  If yes, the search is challengeable under the Fourth Amendment.  If not, the search is challengeable under the Fourth Amendment. o (3) Did the police officers have a valid warrant?  A warrant is valid when it is issued by a neutral and detached magistrate on a showing of probable cause and particularity. If not, does an exception apply? o (4) If the police officers did not have a valid warrant, does the search or seizure fall within one of the 6 exceptions to the warrant requirement?

Answer 2

Fourth Amendment protects only against government conduct (police officers, government agents, or private individuals acting at the direction of the public police). Fourth Amendment does not apply to searches by privately paid police  Store security guard  Subdivision police  Campus police

Answer 3

To have a Fourth Amendment right, a person must have a reasonable expectation of privacy to the place searched or item seized. The determination is based on the totality of the circumstances.

Answer 4

 Home (including curtilage)  Hotel  Office  Luggage  Cell-site location information  GPS device on one’s car  Smartphone data including text messages  Government wiretap  Pen register (device that records only phone numbers dialed from a phone)  Use of equipment not available to general public * Examples o Thermal image to take photographs of the inside of a home o Drug sniffing dog on the patio * Does not apply to airspace or drug sniffing dog in open fields  Place searched if overnight guest in owner’s home

Answer 5

 General rule * A person does not have a reasonable expectation of privacy in objects held out to the public.  Anything visible from public streets or sidewalks (even if in home)  Anything visible from open fields (even if open field on private property) * Trespass alone NOT a search so long as it is not in the home or curtilage. * NOTE: REP in a closed shed on open field. Officers can smell outside shed but cannot enter without a warrant (even with PC).  Abandoned property (e.g., garbage set out on the curb for collection)  Anything visible from public airspace as long as within legal airspace and the lens is in general public use  Anything seen from public space as long as lens in general public use  Anything visible to a police officer if equipment is in general public use  Anything revealed to a third party * Sound of your voice * Style of your handwriting * Location of your car on a public street or in a driveway * Paint on the outside of your car * Third party wearing a wire * Bank records * Internet subscriber information * IP address  Tracking device snuck onto something before defendant obtained it  Odors emanating from one’s luggage or car  Passenger in someone ELSE’s car Note: A person generally does not have standing to challenge a warrantless search of another's home unless the home was also his home or he was at least an overnight guest in the home. Thus, if you have drugs and run into stranger’s home, police can enter the home and get you, because you do not have a reasonable expectation of privacy in the stranger’s home, because you don’t own it, and you aren’t an overnight guest there. This applies even though the police should have gotten a warrant to search for the stranger in the stranger’s home.

Answer 6

Property seized If a person owns a property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched. * Example: Bob walking down street. Sees cops. Puts his drugs in girlfriend’s purse. Cops search her purse. Bob does not have standing to object to the search of girlfriend’s purse.

Answer 7

A facially valid search warrant requires:  (1) Issued by a neutral magistrate;  (2) Based on probable cause; AND  (3) Describe place or property to be searched with particularity. Note: A state attorney general is not neutral.

Answer 8

Rule: An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Two factors to consider: o (1) Reliability and credibility o (2) Basis for knowledge Note: The informer’s identity generally does not need to be revealed.

Answer 9

A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes: * (1) False statement in affidavit by officer; * (2) Intentionally or recklessly; AND * (3) Statement material to finding of probable cause. * Note: Challenges are rarely successful. If the officer believed the lie, it is not a false statement. If they intentionally lied but it is not material, the warrant is still good.

Answer 10

Evidence obtained by a facially valid warrant may be used even if the warrant was not supported by probable cause. * Note: This exception does not apply if the police failed to obtain a warrant in the first place.

Answer 11

Rule: The exclusionary rule does not apply when the police arrest someone in good faith reliance thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law. o 4 Exceptions to Officer’s Good Faith Reliance on a Defective Warrant (excl. rule does not apply)  (1) Affidavit so lacking in probable cause  (2) Affidavit so lacking in particularity  (3) Officer or prosecutor lied to or misled magistrate  (4) Magistrate biased and abandoned neutrality

Answer 12

To properly execute a search warrant, the government agent conducting the search must: * (1) Perform within a reasonable time; * (2) Knock and announce; AND (no need to knock and announce, if reasonable belief would be dangerous, futile or would inhibit the investigation) Note: This factor alone will NOT make the evidence inadmissible. Exclusionary rule does not apply here. * (3) Limit scope of search to warrant. o Example: Cannot search for gun in a jewelry box. o Note: Police may seize any contraband or fruits or instrumentalities of a crime they discover, whether or not specified in the warrant.  Private Citizens * Rule: Private citizens may not execute a warrant.  Third Parties * Rule: A third party may accompany the police to aid in identifying stolen property. Search of Persons Found on Premises * Rule: A warrant to search for contraband allows the police to detain occupants in the immediate vicinity but does not allow police to search them (unless named in the warrant). * Note: The warrant also does not give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed. * Recall: If a police officer has reason to believe any person present is armed and dangerous, the officer may conduct a Terry pat down for weapons.

Answer 13

All warrantless searches conducted by law enforcement are unconstitutional unless they fit into one of 7 exceptions to the warrant requirement.

Answer 14

Exigent circumstances (fleeing felon, danger of destruction of evidence, emergency aid) SILA Consent Automobile Plain view Evidence from administrative search Stop and frisk

Answer 15

Rule: Police officers in hot pursuit of a fleeing felon may make a warrantless search or seizure and may pursue the suspect into anyone’s dwelling. Exception Person suspected of misdemeanor o Rule of Thumb  Police must be within 15 minutes behind fleeing felon to justify exception. o Inside Home Officer can ensure 2 things * The arrestee is the only person present * No weapons present that may imperil the officer’s safety * Recall: Stay within scope. Cannot search drawer b/c felon can’t fit. o Plain view applies: Any evidence they see in plain view will be admissible.

Answer 16

Rule: Officers may make a warrantless search or seizure to secure evidence that will be destroyed by delay. * Example: Scrapings of tissue under suspect’s fingernails is OK. * Example: Blood alcohol test if not OK but breath alcohol test OK. * Note: Also called evanescent evidence

Answer 17

Rule: The police do not need a warrant when acting in emergency situations threatening immediate health or safety. * [NO PC required] + preventing injury * Officer’s belief is measured objectively; subjective motivation irrelevant * Note: Injury does not need to be life-threatening. Injury could be present or about to happen.

Answer 18

Rule: The police may conduct a warrantless search incident to a lawful arrest that includes: * (1) Searching the person; AND * (2) Searching the areas within the person’s wingspan (see car addition below) * The police may also make a protective sweep of the area beyond the defendant’s wingspan if they believe dangerous accomplices may be present.  Note: The search must be contemporaneous in time and place of the arrest, but with respect to searches of cars, the term contemporaneous does not mean simultaneous.

Answer 19

After arresting the occupant of a vehicle, the police may search the interior of the vehicle incident to the arrest if either: o (1) The arrestee is unsecured and still may gain access to the interior of the vehicle, OR o (2) Police reasonably believe evidence of the offense for which the person was arrested may be found in the vehicle.  Note: This applies even when the suspect is secured/in back of cop car.

Answer 20

Police officers may examine the physical attributes of a person’s cell phone upon arrest. However, officers may not examine the phone’s data without a warrant. NOTE Search Incident to Incarceration or Impoundment * Rule: At the police station, the police may make an inventory search of the arrestee’s belongings. and vehicle.

Answer 21

A warrantless search is valid if the police have voluntary consent. Consent is voluntary if a reasonable person would feel they had a right to leave or refuse. The totality of the circumstances test is applied. Note: Knowledge of the right to withhold consent is not a prerequisite to establishing voluntary consent.

Answer 22

Any person with an equal right to use the property may consent to a search. However, an occupant cannot give valid consent if the co-occupant objects and the search is directed against the co-occupant. Note: If one consents and other refuses, officers cannot search property. Rule: If a co-occupant objects and is removed for another reason (e.g., lawful arrest), the police may act on the consent of the remaining occupant, even if the removed occupant had refused consent. * Note: Landlord and hotel clerk cannot provide consent until a tenant vacates.

Answer 23

(1) If officers have probable cause to believe the vehicle contains contraband, they may search the whole vehicle and any container therein that might reasonably contain the item for which they had probable cause to search. Exception  If car is parked on curtilage, a warrant is needed. * Subrule: If a warrantless search is valid, the police may tow the vehicle to the station and search it later. (2) If officers have probable cause that only a container in the vehicle contains contraband, they may conduct a warrantless search of the container but not of the rest of the car.  Note * Need separate warrant to search actual passenger’s body * If police have probable cause to believe the car itself is contraband, they may seize it from a public place without a warrant. * The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.

Answer 24

Rule: Under the plain view doctrine, police do not need a warrant if: * (1) Legitimately on the premises; o Example: Warrant to search in house, cannot seize item outside home * (2) Item evidence of crime; * (3) Item in plain view; AND * (4) Item’s criminal nature is immediately apparent. o No movement/manipulation of item * Note: Applies to “plain smell” detection of drug

Answer 25

 Officers may conduct a warrantless administrative search if there is a showing of a general and neutral enforcement plan. * NOTE: Cannot serve as pre-text (not for sole purpose of crime investigation)  Examples permitting warrantless searches * Administrative searches to seize spoiled or contaminated food * Administrative searches of a business within a highly regulated industry * Inventory searches of arrestees or their vehicles pursuant to established department procedure * Searches – including suspicion-less strip searches – of prisoners even if for minor crimes * Searches of airline passengers prior to boarding * Searches of parolees and their homes, even without reasonable grounds, so long as there is a statute authorizing such searches * Searches of government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct * Drug tests of railroad employees * Drug tests of persons seeking customs employment in positions connected to drugs * Drug tests of public school children who participate in extra-curricular activities and school dance * Opening up international mail when postal authorities have reasonable cause to suspect that the mail contains contraband. * Immigration Enforcement Actions o Factory surveys of citizenship of workforce are OK, and illegally obtained evidence may be used in a civil deportation hearing o Officials with reasonable suspicion that a traveler is smuggling contraband in their stomach may detain the traveler * Searches at the U.S. border o Roving patrols inside the U.S. border may stop a vehicle for questioning if an officer reasonably suspects the car contains undocumented people. o Border officials at fixed locations can stop vehicles and disassemble vehicles even without reasonable suspicion. * Checkpoints o Suspicionless stopping and searching OK if done routinely, not randomly, at a fixed point * Note: 4th Amendment does not apply to searches and seizures by the U.S. government in foreign countries and involving an alien. o Example: U.S. officer conducts warrantless search of an alien’s home in Mexico. Evidence admissible.

Answer 26

A warrant is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search is necessary. A school search will be held reasonable only if:  (1) Moderate chance of finding evidence of wrongdoing;  (2) Measures reasonably related to purpose of search; AND  (3) Search not excessively intrusive in light of age and sex of student.

Answer 27

Wiretapping Warrant May Be Issued  (1) Showing of probable cause;  (2) Suspects are named;  (3) Warrant describes with particularity the conversations that can be heard;  (4) Wiretap limited to a short period of time;  (5) Wiretap terminated when desired information is obtained; AND  (6) Court is informed of what information has been intercepted o Exceptions – Unreliable Ear and Uninvited Ear  Rule: A speaker has no 4th Amendment claim if they make no attempt to keep conversation private.  Example: Speaker assumes risk that person whom they are talking to either consents to the government monitoring the conversation or is an informer wired or taping the conversation.

Answer 28

o Rule: Evidence obtained in a manner that shocks the conscience is inadmissible and any convictions stemming from those actions is unconstitutional.

Answer 29

- The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the 4th, 5th, 6th, and 14th Amendments. 14th amendment - was the statement voluntary 5th amendment - did they receive miranda 6th amendment - did they have counsel

Answer 30

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. o Harmless Test Error  Rule: If an involuntary confession is admitted into evidence, the harmless error test applies, which means the conviction need not be overturned if there is other overwhelming evidence of guilt.

Answer 31

o Rule: The Sixth Amendment right to counsel guarantees the right to counsel in all critical stages of a prosecution after judicial proceedings have begun. o Recall: There can be no violation of the Sixth Amendment right to counsel before formal proceedings have begun. Thus, if arrested, no 6th Amendment right but does have right under 5th Amendment under Miranda.

Answer 32

* Post indictment interrogation, whether or not custodial * Preliminary hearings to determine probable cause to prosecute * Arraignment * Post-charge lineups (as soon as the D is in sight of a witness, counsel must be there for the entire lineup or it is insufficient) * Guilty plea and sentencing * Felony trials * Misdemeanor trials when imprisonment or suspended jail sentence is actually imposed * Overnight recesses during trial * Appeals as a matter of right * Appeals as of guilty pleas

Answer 33

A defendant does not have the right to counsel at the following stages: * Blood sample * Taking of handwriting or voice exemplars * Pre-charge or investigative lineups * Photo IDs * Preliminary hearings to determine probable cause to detain * Brief recesses during the defendant’s testimony at trial * Discretionary appeals * Parole and probation revocation proceedings * Post-conviction proceedings (not including sentencing)

Answer 34

 Rule: The Sixth Amendment is offense specific, which means the right only applies to the offense at hand. Thus, even if attachment has occurred, the defendant may be questioned regarding unrelated, uncharged offenses. * Sub Rule: Two offenses will be considered different if each requires proof of an additional element that the other crime did not require. compare to 5th amendment where once you ask for counsel you get it regardless so long as under custodial interrogation

Answer 35

 Rule: The 6th Amendment right to counsel may be waived so long as the waiver is knowing and voluntary.

Answer 36

For violations of 6th Amendment right to counsel, harmless error test applies to non-trial proceedings, while deprivation of counsel at trial results in automatic reversal.

Answer 37

 Rule: A statement obtained in violation of the Sixth Amendment right to counsel, while not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s trial testimony. * Note: This rule is similar to that which applies to Miranda violations.

Answer 38

Miranda warnings are required when a suspect is in custodial interrogation and must be given prior to the interrogation.

Answer 39

 (1) The person has the right to remain silent  (2) Anything the person says can be used against them in court  (3) The person has the right to presence of an attorney  (4) If the person cannot afford an attorney, one will be appointed for them if they so desire  Note: The warnings do not need to be verbatim.  Exam Tip: Despite the fact that the Miranda warnings mention a right to counsel, the failure to give warnings violates the defendant’s Fifth Amendment right to be free from compelled self-incrimination, not their Sixth Amendment right to counsel. Thus, don’t be fooled by an answer that states such failure is a violation of defendant’s Sixth Amendment rights.

Answer 40

Would a reasonable person under the circumstances feel free to terminate the interrogation and leave? Are there coercive pressures - what is the environment?

Answer 41

* Rule: Interrogation includes any words or conduct that the police should know is likely to elicit an incriminating response. Miranda warnings are not required before spontaneous statements are made by a detainee. * Note: Under Miranda, there is no requirement for the police to advise the suspect of the offense they wish to question him about * Note: Routine booking questions do not constitute interrogation.

Answer 42

 Rule: Miranda warnings are only necessary if the detainee knows they are being interrogated by a government agent (does not apply to undercover informants). Grand Jury Proceedings  Rule: The Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.

Answer 43

do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.

Answer 44

If the detainee does not respond at all to Miranda warnings, the court will not presume a waiver, but neither will the court presume the detainee asserted a right to remain silent or to consult with the attorney. Therefore, the police may continue to question the detainee.

Answer 45

The detainee may waive their rights under Miranda. To be valid, a government must prove by a preponderance of the evidence that the waiver was knowing and voluntary. * Note: If government can show detainee received warnings and then chose to answer questions, this is sufficient for a waiver.

Answer 46

* Rule: To be effective, the detainee’s invocation of the right to remain silent must be unambiguous. o Example: Failure to respond to anything is not invocation of the right * Sub-rule: If the detainee invokes the right to remain silent, the police must scrupulously honor the request and may not continue badgering the detainee.

Answer 47

Police may reinitiate questioning when the suspect: o (1) Wait a significant amount of time; o (2) Suspect re-Mirandized; AND o (3) Questions limited to a crime that was not subject of the earlier questioning.

Answer 48

Rule: Defendant's invocation of his right to remain silent cannot be used as evidence against him at trial, nor can he be questioned or cross-examined about his decision to remain silent, even if he testifies at trial.

Answer 49

To be effective, the detainee’s invocation of the right to counsel must be unambiguous.

Answer 50

o (1) Detainee waives right by reinitiating questioning, OR o (2) Detainee released from custodial interrogation back to normal life and 14 days pass * Note: Allowing detainee to consult with counsel and then resuming interrogation after counsel has left generally does not satisfy the right to counsel—counsel must be present during the interrogation unless the detainee has waived the right.

Answer 51

o If detainee indicates they wish to remain silent, police may question them about a different crime after a break if fresh warnings are administered. Whereas, if detainee requests counsel, the police may not resume interrogating the detainee until counsel is provided or the detainee initiates the questioning.

Answer 52

Evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. Use of Confession for Impeachment * Rule: Statements obtained in violation of the Miranda rules may be used to impeach the defendant’s trial testimony but may not be used as evidence of guilt.  Harmless Error * Rule: If inadmissible confessions are erroneously admitted into evidence, a resulting conviction need not be reversed if there is other overwhelming evidence of guilt (e.g., harmless error test)

Answer 53

If the police obtain a confession without giving warnings and then give the detainee warnings and obtain a subsequent confession, the subsequent admission is inadmissible unless: o (1) The original unwarned questioning seemed unplanned; AND o (2) The failure to give Miranda warnings seemed inadvertent.

Answer 54

Nontestimonial evidence given by a detainee after his Miranda rights have been violated is still admissible unless the failure to give Miranda rights was purposeful.

Answer 55

o Rule: Interrogation without Miranda warnings is allowed when reasonably prompted by a concern for public safety.  Example: To locate a hidden gun that could have caused injury to innocent persons.

Answer 56

The right to remain silent does not include the right to protect others.  Example: Defendant is not privileged in refusing to reveal names of other criminals. You have to give up the names or prosecution can give you higher sentence.  Rule: A defendant's refusal to cooperate with an investigation of the criminal conspiracy of which he was a member may properly be considered in imposing sentence.

Answer 57

Rule: A defendant can attack an identification procedure as violating due process if the identification is: * (1) Unnecessarily suggestive; AND * (2) Produces a substantial likelihood of misidentification.  Note: Because a line up does not involve compulsion to give testimonial evidence, a suspect’s Fifth Amendment right against self-incrimination does not apply, so the defendant may not refuse to participate. o Attacking Pre Trial ID when Counsel Not Present  The government bears the burden of proving that: * (1) Counsel was present; * (2) The accused waived counsel; AND * (3) There is an independent source for the in-court identification. * Note: The defendant must prove an alleged due process violation.

Answer 58

 Rule: The remedy for unconstitutional identifications is exclusion of the in-court identification. * Independent Source – Admissible Testimony o Rule: A witness may make an in-court identification despite the existence of unconstitutional pre-trial identification if the in-court identification has an independent source. o Example: Opportunity to observe D at time of crime * Hearing o Rule: Admissibility of identification evidence should generally be heard at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. o Sub Rule: The defendant has the right to testify at a suppression hearing without their testimony being admitted against them at trial.

Answer 59

Unconstitutionally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” (evidence obtained from the unlawfully obtained evidence) must also be excluded

Answer 60

* (1) Non-testimonial evidence from statements obtained in violation of Miranda rights * (2) Independent source * (3) Attenuated link between the police misconduct and the evidence * (4) Inevitable discovery * (5) Violations of the knock and announce rule * Note – examples of attenuation o Defendant is illegally arrested but is released and later returns to the station to confess o Police officers technically make an unlawful stop, but there is an arrest warrant out for the detainee o Note: These include intervening acts of free will on the part of the defendant.  In Court Identification * Rule: A defendant may not exclude a witness’s in-court identification on the ground that it is the fruit of an unlawful detention.

Answer 61

o Limitations on the Rule  Inapplicable to Grand Juries, Civil Proceedings, Violations of State Law, Internal Agency Rules, and Parole Revocation Proceedings * Grand Juries o Rule: The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute. * Other o Rule: The exclusionary rule is inapplicable at parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to state law or agency rules.

Answer 62

* Use of Excluded Evidence for Impeachment Purposes o May be used be prosecution to impeach the defendant’s, but not others, statements.

Answer 63

* Harmless Error Test o Rule: If illegal evidence admitted, government must show it is harmless error. o Recall: The harmless error standard never applies to the denial of the right to counsel at trial. This error is never harmless.

Answer 64

* Habeas Application o Rule: In a habeas proceeding, where the defendant claims constitutional error, the petitioner should be released if they can show that the error had a substantial and injurious effect or influence in determining the jury’s verdict.  Sub Rule: If the judge is in grave doubt as to the harm, the petition should be granted.

Answer 65

A preliminary hearing on probable cause must be held within a reasonable time (e.g., 48 hours). * Note: The hearing is an informal, non adversarial proceeding. o Note: Prelim hearing is not needed if PC has already been determined through a grand jury indictment or arrest was completed pursuant to a warrant.

Answer 66

(1) Bail should be set no higher than necessary to assure defendant appears (2) Refusal to grant bail or setting of excessive bail may be appealed immediately  Note: If a state provides for bail, arbitrary denials violate due process even though 8th Am provision for bail does not yet apply to states, because State constitutions provide for it.

Answer 67

o Rule: Standards for defendants to stand trial must be same as for committed persons who are not standing trial, otherwise there is a denial of equal protection.

Answer 68

o Recall: 5th Am. right to indictment by grand jury does not apply to states, but some state constitutions require it. o Secret proceeding o The prosecutor has NO obligation to present exculpatory evidence to the grand jury. o Does not have to be unanimous o Because jeopardy does not attach until a trial begins, the Double Jeopardy Clause does not apply to grand jury proceedings. o Rule: The exclusionary rule does not apply to grand jury proceedings. o D HAS NO RIGHT TO:  Be present  Notice  Present any evidence  Confront witnesses  Miranda warnings  Have evidence excluded  Challenge subpoena  Counsel o Key Points  Witnesses do NOT have right to counsel within grand jury room  Grand jury can consider illegally obtained evidence and hearsay  Witness must appear if called, though they can refuse to answer specific questions on self incrimination grounds o Basically, NO RIGHTS and the Exclusionary Rule DOES NOT apply o Only Route to Quashing a Grand Jury Indictment  A conviction resulting from a grand jury indictment from which members of minority groups have been excluded. This conviction will be reversed without applying a harmless error test.

Answer 69

The 6th amendment right to a speedy trial protects the defendant from delay once the defendant is charged or arrested, whichever comes first. The defendant does not need to know about the charges in order for the right to apply. The remedy for a violations of the right to a speedy trial is dismissal of the case with prejudice.

Answer 70

* (1) Length of delay o 8+ months = assumed prejudicial * (2) Reason for delay * (3) Whether delay prejudiced D * (4) Whether D asserted right o Example: No due diligence by prosecution o Note: Delays caused by state-appointed counsel are attributed to the defendant and not to the state.

Answer 71

Under the Brady rule, a prosecutor has a duty to disclose material evidence favorable to the defendant.

Answer 72

 (1) Evidence is favorable to the D because it either impeaches or is exculpatory; AND  (2) Prejudice resulted. * Prejudice defined: Reasonable probability conviction or sentence would be different. o Note: Applies to evidence of which the police or other state actor is aware, even though the prosecutor is not aware of such evidence.

Answer 73

o D must inform prosecution of alibi and intent to present insanity defense o For alibi, D must provide prosecution with list of witnesses and prosecution must give D list of rebuttal witnesses o Prosecutor may not comment at trial on:  (1) D’s failure to testify  (2) D’s failure to produce an alibi  (3) D’s failure to produce an alibi witness

Answer 74

One is incompetent to stand trial if: * (1) Lacks a rational and factual understanding of the charges and proceedings * (2) Lacks ability to consult with lawyer with reasonable level of understanding * (3) D proves by preponderance of the evidence o Rule: Incompetency to stand trial is not a defense but a bar to trial and is based on the defendant’s mental condition at the time of trial. If the defendant later regains competency, he can be retried and convicted. o Detention of Defendant  Rule: A D who successfully proves insanity can be committed to a mental hospital for longer than the incarceration term but cannot be indefinitely committed after gaining sanity merely because they cannot prove they are not dangerous.

Answer 75

probable cause hearings suppression hearings voir dire i. Rule: Excessive pre trial publicity may require change of venue or retrial.  Trial – press and public have First Amendment right to attend, even if both parties agree to close it

Answer 76

1. Actual malice against D 2. Financial interest in having guilty verdict 3. Judge earlier had significant role in prosecution of case

Answer 77

1. Unlikely jury gave evidence reasonable consideration 2. State makes defendant appear in prison clothing 3. Defendant visibly shackled, unless justified by concerns of danger or escape 4. Jury exposed to influence favorable to prosecution ii. Note: Due process does not require the police to preserve all items but does prohibit bad faith destruction.

Answer 78

i. Rule: The 6th AM. guarantees a right to a trial for offenses that carry an authorized sentence of more than six months, regardless of the actual penalty imposed. ii. Civil contempt hearings 1. No right to jury trial

Answer 79

1. MINIMUM number of jurors is 6 2. Jury verdicts must be unanimous in federal and state courts 3. Right to ask about race i. Only when race is related to case or defendant is accused of interracial capital crime 4. Potential jury pool must represent a fair cross section of community from which no distinctive group is excluded i. However, actual jury pool seats must only be impartial (does NOT have to represent fair cross section of community) ii. Potential jurors may be removed for: i. Cause to ensure an impartial jury; OR ii. Through use of peremptory challenges 1. Exception: Excluding jurors due to race/gender violates EPC iv. Sentencing Issues & Jury 1. Rule: If the substantive law provides that a sentence may be enhanced beyond the statutory maximum only upon a finding of certain facts (other than prior convictions), those facts must be found to exist by the jury. A determination of their existence by a judge is a denial of the Sixth Amendment right to a jury trial.

Answer 80

Effective assistance of counsel is generally presumed. D must prove: i. (1) Deficient performance by counsel; AND ii. (2) But for the deficiency, the verdict or sentence would have been different. Note: D must prove specific deficiencies. Note: If during sentencing attorney says D guilty, automatic new trial

Answer 81

After government closes its evidence or after the close of all the evidence, the court, on D’s motion, must enter judgment of acquittal for D if: i. Evidence insufficient to sustain a conviction i. Note: Where no reasonable jury could find that each element of offense was proven beyond a reasonable doubt

Answer 82

- No right to trial for juveniles in juvenile court - On Double Jeopardy o Rule: If a judge adjudicates a child to be delinquent, jeopardy has attached and under the double jeopardy clause, the child may not be tried as an adult for the same behavior.

Answer 83

o Rule: Under the Sixth Amendment right, a defendant has the right to confront adverse witnesses.

Answer 84

Right to Confront Not Absolute o Examples  May remove disruptive defendant  May serve public purpose by not allowing confrontation (e.g., protecting child)

Answer 85

Rule: Where two defendants are jointly tried, a confession implicating a co-defendant is prohibited unless:  (1) All portions referring defendant can be eliminated, OR  (2) Confessing defendant takes stand for cross-examination

Answer 86

o Rule: A prior testimonial statement of an unavailable witness is not admissible unless defendant had opportunity to cross examine witness when statement was made

Answer 87

 Rule: Statements are testimonial when: * (1) No ongoing emergency; AND * (2) Primary purpose of interrogation is to establish or prove past events  Examples * Testimony from preliminary hearings, grand jury hearings, former trial, police interrogation when not an emergency, results from forensic lab being used to prove truth of matter asserted o Note: If offered to show a match to another lab, this is not used to prove truth of matter asserted and thus no confrontation right exists  Forfeiture of Right * Rule: Defendant may forfeit the right if wrongdoing to prevent witness from testifying

Answer 88

 Exam Tip – Exam Structure: On exam, you will likely have someone giving police a statement, so you must analyze: o Voluntariness  Rule: Confession must be voluntarily made in light of the totality of the circumstances. o Fifth Amendment: Miranda  Rule: To receive Miranda warnings, D must be in custodial interrogation. ***  Trial – Burden of Proof & Sufficiency of Evidence o Burden: Proof beyond a reasonable doubt o Mandatory presumption shifting burden to defendant violates Fourteenth Amendment

Answer 89

 Rule: A court will allow a D to substitute a new attorney if the interests of justice so require, taking into account (1) any conflicts (2) the interests of D and the court (3) the timeliness of the request.

Answer 90

 Rule: Available to D so long as: o (1) D voluntary waives right to counsel at trial; AND o (2) Judge considers D’s waiver knowing + intelligent and that D is competent to proceed  Exception * D does not have right to self-rep on appeal

Answer 91

Where co-Ds are charged for the same crime, the court will sever the co-Ds if a joint trial would result in substantial prejudice to one of the Ds.  Sub Rule: If the co-Ds implicate each other, then a new trial would be necessary as the testimony from each would violate the 6th Amendment rights of the other, and each would have the right to cross-examine the other.  Analysis: Analyze whether substantial prejudice  Conclusion: Court will not likely sever the co-defendants based on the statement.

Answer 92

(1) Determine that plea is voluntary and intelligent; Note: Did not result from force, threat, improper promises (2) Address defendant on the record to ensure defendant knows: * Nature of charge and elements * Maximum possible charge and mandatory minimum * Right to not plead guilty o Use of Statements Made During Plea Negotiations  Any admissions made during plea negotiations are inadmissible at trial. o Remedy  Unfairly informed defendant is not bound by the plea (and can plead anew)

Answer 93

 Defendant not permitted to withdraw plea if intelligent choice among alternatives o Prosecutorial Leverage  Prosecution can threaten defendant with more serious crime and follow through if D does not accept

Answer 94

 (1) Plea involuntary – errors in plea-taking procedure  (2) Court lacked jurisdiction to take plea  (3) Ineffective assistance of counsel  (4) Failure of prosecutor to keep plea bargain

Answer 95

o If judge imposes greater punishment at trial (after defendant’s successful appeal), record must show reasons for harsher sentence  Exceptions * (1) Reconviction after a new trial * (2) Jury trial

Answer 96

- No Right to Confrontation o Exceptions  (1) Magnified sentence based on new findings of fact  (2) Capital sentencing

Answer 97

Eight Amendment prohibits punishment that is both cruel and unusual; that is, punishment is grossly disproportionate to offense  Cruel = intent to cause pain  Unusual = no other state does it

Answer 98

 Statutory scheme must give fact finder reasonable discretion, full information, and guidance in making decision  Statute may not be vague

Answer 99

* (1) Sentencing jury heard all mitigating circumstances (e.g., D abused as a child); * (2) At least ONE aggravating circumstance (e.g., prior conviction); AND * (3) Statute NOT unconstitutionally vague.

Answer 100

* For murder – valid o For accomplice to felony murder  Valid if accomplice participated in a major way and acted with reckless disregard to the value of human life * For rape – disproportionate and invalid * If prisoner insane at time of proposed execution – invalid * If prisoner intellectually disabled – invalid * If prisoner younger than 18 years when crime committed – invalid

Answer 101

o Unconstitutional to make status a crime o Unconstitutional to sentence minor to life without possibility of parole for non-homicide crime o Unconstitutional to provide for harsher penalties than those demanding trial o Imprisonment of indigent for failure to pay fines is an equal protection violation

Answer 102

o No Constitutional right to bail  8th Am forbids setting of excessive bail, but does not require that bail must be offered  If ineffective to secure presence of D at trial, bail may be denied o Right to a bail hearing + bail can be set no higher than necessary to ensure D will appear  Any decision to DENY bail = IMMEDIATELY appealable o Denial of bail considerations  Flight risk  Danger to community

Answer 103

 Excessive fines clause only applies to criminal proceedings, so a penal forfeiture is subject to the 8th Amendment, but a civil forfeiture is not.  Monetary forfeitures generally then are not subject the Eighth Amendment

Answer 104

- No Constitutional right to appeal - If a right to appeal is granted by state law, right to counsel applies at the first appeal - No right to self-representation in an appeal

Answer 105

- Standard o A conviction will not necessarily be overturned merely because improperly obtained evidence was admitted at trial. Rather, the harmless error test applies. - Retroactivity of New Rule o New rules announced on direct appeal must be applied to all other cases on direct appeal

Answer 106

- Habeas Corpus o Civil action challenging lawfulness of detention o Petitioner has burden to show unlawful detention by preponderance of the evidence o Defendant must be “in custody” (includes on bail, probation, or parole)

Answer 107

fifth amendment

Answer 108

General Rule: Under the Fifth Amendment right to be free of double jeopardy, a defendant cannot be retried for the same offense once jeopardy has attached. o Protects against  Prosecution for same offense after an acquittal or conviction  Multiple prosecutions or punishments for the same offense

Answer 109

o Jury trial: when jury empaneled and sworn o Bench trial: when first witness sworn o Juvenile proceedings: at commencement of proceedings o Note: Civil trials not applicable (OK to have criminal and civil proceedings for same offense)] o Note: Double jeopardy does not apply to grand jury proceedings.

Answer 110

o (1) Hung jury o (2) Mistrial for manifest necessity to abort original trial (e.g., medical emergency) o (3) Retrial after D successfully appeals  Cannot be for more serious crime than crime convicted of in first trial

Answer 111

2 crimes are not the same offense if each crime requires proof of an element the other does not require.

Answer 112

* (1) Prosecutor could not have tried the second crime at the time o Example: Battery conviction victim later dies as result retrial for murder permitted) * (2) Legislative intent where 2 punishments are OK if statute provides (e.g., robbery + use of weapon) * (3) New evidence for greater offense becomes available since prosecution of lesser offense (now different set of facts)

Answer 113

o Only repetitive criminal prosecutions (not civil actions) are prohibited o Charges by separate sovereigns (e.g., state and federal governments) not prohibited o Double jeopardy clause does not bar successive prosecutions of distinct offenses arising from the same conduct, even if a single sovereign prosecutes them o Examples  Conviction reversed due to insufficiency of evidence. When a conviction is reversed on these grounds, jeopardy is implicated, and the prosecution is barred from retrying the defendant for the same offense.  Example: Prosecution will be barred from retrying a case when they can’t locate a witness and then ask for a mistrial.  Robbery and larceny are the same offense because all of the elements of larceny are in robbery  Larceny and burglary are not the same offense because the elements of burglary are not all in the elements of larceny. This means you can be tried and convicted for both.  An attempt and conspiracy are not the same offense because the elements of one are not in the other

Answer 114

- Fifth Amendment Right Applicable to States Through Fourteenth Amendment - Right for Natural Persons Only (not corporations or partnerships) - Applies only to testimony o Does not apply to physical evidence o Does not apply to documents - Defendant Can Refuse to Take Stand All Together o Prosecutor cannot comment on defendant’s silence after receiving Miranda warnings  Exception * In response to a claim by D that he had no opportunity to explain * Note: Harmless error test applies; violation does not automatically require retrial - Witness Other Than Defendant Must Take Stand and Invoke Privilege Question-by-Question

Answer 115

o Use and derivative immunity  Immunized testimony is involuntary and cannot be used for impeachment. Evidence from independent source can still be used.  State immunized testimony cannot be used in a federal prosecution  Federal immunized testimony cannot be used a state prosecution o Waiver when D takes the stand o Transactional immunity  Complete protection from prosecution from self-incriminating testimony o No possibility of incrimination * Physical murder weapon: Admissible o Violating a Police Policy  Doesn’t matter for exclusionary analysis o DNA/Fingerprint  Admissible regardless of whether Miranda violation, so long as the statement was voluntary.

Crimes Crim Pro Flashcards

(142 cards)