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Criminal Law _ CRIM PRO Flashcards

(62 cards)

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1
Q

Definition – Government Action Requirement

SEARCH & SEIZURE

A

Search & Seizure must be made by a government agent or at the direction of the government

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2
Q

Definition – Search

SEARCH & SEIZURE

A

A government search of a location with a reasonable expectation of privacy

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3
Q

Open Fields Doctrine:

SEARCH & SEIZURE

A
  • Open areas with no expectation of privacy
  • Not a search
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4
Q

Definition – Probable Cause

SEARCH & SEIZURE

A

A reasonable person would conclude it is more probable than not that a crime has taken place

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5
Q

Hypo: A cop has probable cause that Jon has cocaine in his closet. Can the cop enter Jon’s house to search for the cocaine?

SEARCH & SEIZURE

A

If the cops enter Jon’s house without a warrant and finds cocaine, it will be inadmissible

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6
Q

Definition – Warrant Requirement
( ____ ) Must be pursuant to a warrant

SEARCH & SEIZURE

A

Generally, searches must be pursuant to a warrant

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7
Q

Elements of a Warrant:

SEARCH & SEIZURE

A

1) Issued by detached magistrate
2) Facts must be fresh
3) Persons/Places must be specific
4) Cannot exceed the scope

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8
Q

AdaptiTip

Typically police must ( ____ ) but a search will still be valid if they have a warrant

SEARCH & SEIZURE

A

Typically police must “Knock and Announce” but a search will still be valid if they have a warrant

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9
Q

Informants

SEARCH & SEIZURE

A
  • Police can rely on informants for probable cause
  • To find if an informant is reliable, look to the totality of the circumstances
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10
Q

Plain View:

SEARCH & SEIZURE

A
  • Police can seize what is in plain view during a lawful search

Example:
o Police in your house with a warrant see marijuana
cigarettes on the stairs

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11
Q

Illegal Search:

SEARCH & SEIZURE

A
  • Will NOT automatically dismiss indictment
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12
Q

Protective Sweep

SEARCH & SEIZURE

A
  • Search for additional criminals
  • Allowed for safety with proof of others present
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13
Q

Consent

EXCEPTIONS TO THE WARRANT RULE

A
  • One who has control/apparent authority over the property
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14
Q

Co-occupant Consent:

EXCEPTIONS TO THE WARRANT RULE

A
  • A present co-occupant can refuse
  • A non-present co-occupant cannot refuse
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15
Q

Search Incident to Lawful Arrest:

EXCEPTIONS TO THE WARRANT RULE

A

1) Arrest must be lawful
2) Search of person/wingspan

Examples:
o Briefcase
o Pockets

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16
Q

Arrest of a Car Occupant:

EXCEPTIONS TO THE WARRANT RULE

A

Police may search passenger compartment IF:
1) Occupant is unsecured
2) Reasonable belief of evidence of CRIME OF
ARREST

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17
Q

Inventory Search:

EXCEPTIONS TO THE WARRANT RULE

A
  • After arrest at the police station, police can search the person/car
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18
Q

Exigent Circumstances:

EXCEPTIONS TO THE WARRANT RULE

A
  • Reasonable belief evidence may be lost or destroyed
  • Exception to the Warrant Rule

Do not pick an exigent circumstance answer choice unless there are exigent circumstances discussed in the facts, even though it may legally be correct, it is the wrong answer

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19
Q

Automobile Exception:

Illegal Automobile Stop –
No Traffic Violation:

EXCEPTIONS TO THE WARRANT RULE

A
  • If there was no reason to pull the car over, nothing found is admissible
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20
Q

Automobile Exception:

Legal Automobile Stop –
Traffic Violation:

EXCEPTIONS TO THE WARRANT RULE

A
  • Police cannot search the car
  • Unless some evidence of other crimes

During a stop for a traffic violation, police cannot search the car, glove box, or trunk unless there is evidence of another crime

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21
Q

Automobile Exception:

Automobile Stop – Probable Cause:

EXCEPTIONS TO THE WARRANT RULE

A
  • Police may search entire car if probable cause the car is carrying contraband
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22
Q

Boarder Search:

EXCEPTIONS TO THE WARRANT RULE

A

* No warrant necessary

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23
Q

Search Outside United States:

EXCEPTIONS TO THE WARRANT RULE

A
  • US officials may search you on foreign land
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24
Q

Dog Sniff:

EXCEPTIONS TO THE WARRANT RULE

A
  • NOT a search in a public place
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25
Stop & Frisk: | EXCEPTIONS TO THE WARRANT RULE
* **STOP**: ***Reasonable suspicion** **criminal activity is afoot*** * **FRISK**: ***Reasonable belief** person is **armed & dangerous***
26
Automobile Checkpoints: | EXCEPTIONS TO THE WARRANT RULE
* **Checkpoints allowed with generic, uniform method for stop**
27
AdaptiTip If a question asks what is the best argument for admitting the evidence, look for { ____ } | EXCEPTIONS TO THE WARRANT RULE
AdaptiTip If a question asks what is the best argument for admitting the evidence, **look for one of the exceptions**
28
Miranda Elements: | MIRANDA
1) **Custody** 2) **Interrogation**
29
Definition – Custody | MIRANDA
Reasonable person would not feel free to leave ## Footnote AdaptiTip You don’t need to be handcuffed to be in custody
30
Definition – Interrogation | MIRANDA
**Police attempting** to a **elicit criminal response**
31
AdaptiTip Do the police need to give Miranda warnings IMMEDIATELY? | MIRANDA
The police **do not need to give Miranda warnings immediately**
32
Volunteered Statements: | MIRANDA
* **No Miranda required** if suspect *volunteers information*
33
Miranda Warnings: | MIRANDA
1) Right to **remain silent** 2) Anything **said can be used against you** 3) **Right to an attorney** 4) If you **cannot afford one**, one will be **provided**
34
Invoking Right to Counsel: | MIRANDA
* If you **request a lawyer**, all **questioning must STOP**
35
Waiver of Miranda Rights: | MIRANDA
* **Knowingly** & **Voluntary** * **Totality of Circumstances**
36
Right Against Self-Incrimination: | MIRANDA
* **Never required to testify** * May be required to perform physical acts * **Cannot be forced to make statements** ## Footnote Examples: o Walk with a limp o Put on the glove
37
Lineups & IDs: | MIRANDA
* **Cannot be unnecessarily suggestive** * **Totality of Circumstances** ## Footnote Examples: o The only tall guy o The only guy with a beard o The only guy with gray hair
38
Lineups | RIGHT TO COUNSEL
* **NO** *right to counsel* **PRIOR to Indictment** * *Right to counsel* **AFTER Indictment**
39
Foundation for Rights: | RIGHT TO COUNSEL
* **Fifth Amendment** Right **BEFORE charges or Indictment** * **Sixth Amendment** Right **AFTER formal charges**
40
Right to Effective Counsel: | RIGHT TO COUNSEL
1) Did lawyer deviate from the norms 2) Reasonable probability the outcome would have been different
41
Waiver of Right to Counsel: | RIGHT TO COUNSEL
* Must Knowingly waive
42
Timing | RIGHT TO COUNSEL
* **Defendant** has a **right to Counsel** at **all CRITICAL STAGES of prosecution**
43
Just memorize this LMFAOOOOO | RIGHT TO COUNSEL
44
AdaptiTip Generally, the critical stages are {PRE or POST} -indictment | RIGHT TO COUNSEL
Generally, the critical stages are **post-indictment**
45
Shared Counsel: | RIGHT TO COUNSEL
* Co-defendants **can share** counsel **unless conflict arises**
46
Undercover Officer in Jail Cell: | RIGHT TO COUNSEL
* Violates Right to Counsel * Not Miranda
47
Guilty Plea: | RIGHT TO A FAIR TRIAL & PLEAS
* Entered **Voluntarily** & **Intelligently**
48
Severance | RIGHT TO A FAIR TRIAL & PLEAS
* If **two defendants** are **tried together**, **one can sever for Unfair Prejudice**
49
Impartiality | RIGHT TO A FAIR TRIAL & PLEAS
* Right to UNBIASED Judge
50
Competency | RIGHT TO A FAIR TRIAL & PLEAS
* Defendant must be competent to understand charges * Defendant may be medicated
51
Jury Trial Rights: | RIGHT TO A FAIR TRIAL & PLEAS
* **Sentence** is **longer than 6 months** * Jury is a **cross-section of community** * **State trial** by **6 members** must be **unanimous** * **State trial** by **12 members** need **not be unanimous** * **Federal trial** by **12 members** must be **unanimous** * **Exclusion of a juror** based on **race/gender violates Equal Protection**
52
Right to Public Trial: | RIGHT TO A FAIR TRIAL & PLEAS
* Press may attend **UNLESS overriding interest to close trial** * **Does not apply to Grand Jury**
53
Right of Confrontation: | RIGHT OF CONFRONTATION
* Right to **confront** & **cross-examine all witnesses**
54
Co-defendant Confessions: | RIGHT OF CONFRONTATION
* A** co-defendant’s confession** can **only be used** **against the other** if **available to testify**
55
Right to Confront Out-of-Court Statements: | RIGHT OF CONFRONTATION
* Testimonial Statements are inadmissible * Non-testimonial Statements are admissible NOTE: Definition – **Non-Testimonial Statements** **Made during an emergency**
56
Prosecution’s Burden: | PROCEDURAL RIGHTS
* Must **prove** *all elements* **BEYOND A REASONABLE DOUBT**
57
Defendant’s Burden: | PROCEDURAL RIGHTS
* Must **prove** a **defense** by **PREPONDERANCE OF THE EVIDENCE**
58
Presumptions | PROCEDURAL RIGHTS
* NO Mandatory Presumptions in criminal cases * Violates Due Process
59
# Complete this: AdaptiTip During jury instructions, elements of a crime must be proven by the {PROSECUTION or DEFENSE} & elements of a defense must be proven by the {PROSECUTION or DEFENSE} | PROCEDURAL RIGHTS
During jury instructions, **elements of a *crime* must be proven by the prosecution** & **elements of a *defense* must be proven by the defendant**
60
Grand Jury: | PROCEDURAL RIGHTS
* **Accused has no right to be present** * **Exclusionary Rule** does **NOT apply** * **Witness** has **NO Right to Counsel** **INSIDE the room
61
Double Jeopardy:
* **Cannot be tried for the same crime twice** * **Does not apply** to anything **BEFORE first trial** ## Footnote Example: o Grand jury o Preliminary hearings
62
Jeopardy Attaches:
* **Jury Trial**: **Jury** is *sworn in* * **Bench Trial**: **First witness** is *sworn in*

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