Criminal Pro

Question 1

What does the Fourth Amendment protect against?

Answer 1

Unreasonable searches and seizures.

Question 2

Warrantless searches are…

Answer 2

Presumptively unreasonable

Question 3

What are the exceptions to the presumptive impermissibility of warrantless searches?

Answer 3

SITA
Consent
Exigent circumstances
Terry frisk
Automobile exception

Question 4

What do you need in order to consent to a search?

Answer 4

Actual or apparent authority

Question 5

Who may consent to a search of a place in which multiple parties have common authority?

Answer 5

Any one party with authority may grant consent despite the lack of express concurrence by any of the other parties. If someone is present and objects, then the consent is negated.

Question 6

May a spouse testify against their spouse over that spouse’s objection?

Answer 6

Yes, in Virginia, in criminal cases, spouses must be allowed to testify against each other, though absent rare circumstances cannot be compelled to do so. Defendant’s are afforded no right to object to the voluntary testimony of their spouse.

Question 7

When are defendant’s prior convictions relevant as impeachment?

Answer 7

When he testifies… “A person convicted of a felony or perjury shall not be incompetent to testify, but the fact of conviction may be shown in evidence to affect his credit.”

Question 8

Where should a criminal convict appeal their conviction and how should they perfect that appeal?

Answer 8

The Court of Appeals of Virginia. In order to perfect his appeal, he should file a notice of appeal with the Circuit Court within 30 days of entry of his sentencing order (and transmit notice to opposing counsel) (Rule 5A:6(a)) and file a copy of the notice of appeal with the clerk of the Court of Appeals along with the filing fee. (Rule 5A:6 (c)). The notice should contain a statement as to whether a transcript will be filed. (Rule 5A: 6(b)). The notice must contain the appropriate certificate. (Rule 5A:6(d)). If a transcript is to be filed it must be filed with the trial court within 60 days. Once the trial record has been received by the Court of Appeals of Virginia, Bob will have 40 days to submit his opening brief. (Rule 5A:6)

Question 9

Is a Fourth Amendment violation ever grounds for dismissal?

Answer 9

No, a violation of the Fourth Amendment, if one occurred, should only result in the suppression of any evidence that resulted from the violation

Question 10

When is a warrantless arrest permissible under the Fourth Amendment?

Answer 10

The US Supreme Court has held that police officers may make an arrest without a warrant if the officers have probable cause to believe the person had committed a crime.

Question 11

What is the inquiry for probable cause?

Answer 11

The inquiry considers the totality of the circumstances and probable cause exists if the officer has knowledge that would warrant a reasonably prudent person to believe that the person has committed or is committing a crime.

Question 12

Whom does the Fourth Amendment protect against?

Answer 12

Government actors

Question 13

Do the police need to make a reliability showing when the informant is not anonymous?

Answer 13

No

Question 14

What is the automobile exception and when does it apply? Scope?

Answer 14

The automobile exception permits warrantless searches of vehicles where the police have probable cause to believe that the vehicle contains contraband or other evidence of a crime. They may search anywhere in which the evidence or contraband could be stored.

Question 15

What does Miranda v. Arizona and its progeny require? What is custodial interrogation?

Answer 15

The reading of Miranda rights when someone is subjected to custodial interrogation. Someone is in custody when their freedom of movement is restrained. Interrogation is anything designed to elicit a response.

Question 16

How can two or more defendants be tried together?

Answer 16

1. The commonwealth must move for joint trial; and
2. The court must agree

Question 17

When may a court order joint trial?

Answer 17

Where the defendants were involved in contemporaneous and related acts or a series of acts that resulted in an offense.

Question 18

When may a court order separate trials for co-defendants?

Answer 18

When the joint trial would prejudice a defendant (i.e., mutually inadmissible evidence)

Question 19

What is the rule from Rodriguez v. United States?

Answer 19

If a K-9 sniff prolongs a traffic stop, the sniff must be supported by reasonable articulable suspicion that the vehicle contains contraband. The key is purpose. If the purpose of the traffic stop has not been reached, the sniff is fine.

Question 20

What is a bailee

Answer 20

a person or party to whom goods are delivered for a purpose, such as custody or repair, without transfer of ownership

Question 21

When someone lets you drive their car across country for the purpose of delivering it to them, what are you?

Answer 21

A bailee

Question 22

Does a bailee of a vehicle have the authority to object to or consent to a search by police?

Answer 22

Yes, As a bailee of the vehicle, they have a reasonable expectation of privacy as to the vehicle and therefore has standing to object to its search. Similarly, as bailee, he also had lawful authority to consent to a search of the vehicle.

Question 23

What is a consent search limited to?

Answer 23

The scope of the consent

Question 24

In a criminal trial, where either attorney makes a Motion to Separate the Witnesses:

Answer 24

The witnesses shall be excluded from the courtroom when not testifying, except the complaining witness who may remain if it would not impair the conduct of a fair trial.

Question 25

When must a motion to suppress be filed and can it be filed orally?

Answer 25

motions seeking to exclude evidence, must be raised in writing before trial by motion filed and notice given to opposing counsel not later than seven days before trial in circuit court.

Question 26

What is probable cause?

Answer 26

Probable cause exists where the facts and circumstances within the officer’s knowledge, and of which they have reasonably trustworthy information, would lead a reasonable person to believe that a crime has been committed, and the arrestee is the one who committed it.

Question 27

Is a “show-up” identification (where the witness/victim is brought to scene where D is and asked if this is the guy) overly suggestive?

Answer 27

Not where the witness has sufficient time and ability to look at the suspect and is not pressured into identifying someone

Question 28

What is the exception to the rule that motions to exclude evidence be filed 7 days before trial in writing with notice to opposing counsel?

Answer 28

If in the court’s discretion it permits these motions at trial, then they can be ruled on them despite being untimely and the issues waived.

Question 29

If a question raises issues that seem like they should be talked about because all the facts discuss the issue, how should you approach it if the conclusion is basically: this is the wrong motion to use?

Answer 29

Address them. Be like this is the wrong form, but also here is the analysis.

Question 30

Can a use of firearm charge be proven without the victim seeing the firearm?

Answer 30

Yes, it is not necessary that the victim actually see a firearm—this can be proved by circumstantial evidence.

Question 31

Criminal law questions more than any other type allow for what type of analysis?

Answer 31

1. Its important to categorize facts with questions
2. Sometimes its important to point out that the conclusion is arguable.