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Bar Exam > Criminal Procedure > Flashcards

Criminal Procedure Flashcards

(47 cards)

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1
Q

4th Amendment Issues

A
  • Government Conduct/State Action
  • Reasonable Expectation of Privacy
  • Seizure of Persons
  • Warrant Requirement and Exceptions
  • Exclusionary Rule (Fruit of Poisonous Tree & Exceptions)
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2
Q

5th Amendment Issues

A
  • Miranda Rights and Custodial Interrogation
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3
Q

6th Amendment Issues

A

Right to Counsel

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4
Q

Due Process Clause Issues

A

Lineups

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5
Q

Trial Consideration Issues

A
  • Burden of Proof
  • Sentencing enhancement issues
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6
Q

Post-Trial Consideration Issues

A

Double Jeopardy

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7
Q

Addt’l Issues

A
  • Confrontation Clause
  • Guilty Pleas
  • Right to Discharge Atty & Substitute New Atty
  • Right to represent oneself
  • Right to separate trial from Co-Def
  • Right to speedy trial
  • Right to testify at trial
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8
Q

Fourth Amendment prohibits …

A

Unreasonable searches and seizures

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9
Q

What must Defendant show for claim under 4A?

A
  1. Government/police agency action (not private actors)
  2. Violation of Def’s reasonable expectation of privacy as to the places searched or items seized
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10
Q

What is a seizure of person?

A

Freedom of movement restrained by physical force or show of authority

Ask: Under totality of circumstances, would reasonable person not feel free to leave?

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11
Q

Types of Seizures

A
  1. Arrest
  2. Stop and Frisk (Terry)
  3. Police Checkpoint
  4. Traffic Stops
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12
Q

Warrants and Arrest

A

Usually requires warrant, unless officer has probable cause to believe felony has been committed

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13
Q

Stop and Frisk (Terry)

A

Reasonable suspicion someone engaged in criminal activity

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14
Q

Police Checkpoint

A
  1. Done in non-discriminatory manner
  2. Automobile-related reason for checkpoint
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15
Q

Traffic Stop

A

Reasonable suspicion or probable cause that traffic law has been violated

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16
Q

What is a search?

A

Government conduct that violates defendant’s reasonable expectation of privacy

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17
Q

Warrant Requirements

A
  1. Probable Cause
  2. Oath/Affidavit
  3. Neutral and detached magistrate
  4. Describe w/ particularity the places to be searched and items to be seized
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18
Q

Execution of Search Warrant

A

Knock and announce: police must knock and announce presence

Defective warrant: Good faith execution = no violation

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19
Q

Exceptions to Warrant requirement (ESCAPES)

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A
  1. Exigent circumstances
  2. Search incident to lawful arrest (probable cause)
  3. Consent
  4. Automobiles
  5. Plain view
  6. Evidence from administrative search
  7. Stop and Frisk
20
Q

Examples of Exigent Circumstances

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A
  1. Hot pursuit
  2. Police/public safety
  3. Danger of destruction of evidence
21
Q

Scope of search incident to lawful arrest

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A

Defendant and immediate area (wingspan)

  • Arrestee’s home, areas within reach or where others may be hiding
  • Vehicle: Glovebox if within def’s reach or it is reasonable evidence of offense of arrest may be found
22
Q

Automobile Exception

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A

If probable cause to believe vehicle contains evidence of crime, police can search any part of vehicle believed to have contraband

23
Q

Plain View Exception Requirements

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A
  1. Lawful presence
  2. Item’s incriminating nature immediately apparent
24
Q

Consent requirement

25
What is the exclusionary rule?
Evidence obtained as a result of government violation of 4th Amendment is excluded - Extends to "fruit of the poisonous tree" evidence
26
Exceptions to Exclusionary Rule
1. Inevitable Discovery 2. Independent Source 3. Passage of Time (Attentuation) 4. Good Faith
27
What does the 5th Amendment guarantee?
No person shall be compelled to testify against himself in a criminal case (self-incrimination) - Applies to testimonial evidence coercively obtained by police
28
When are Miranda warnings required
Prior to custodial interrgations 1. Custody: reasonable belief not free to leave or otherwise deprived of freedom 2. Interrogation: express questioning OR words/actions likely to elicit an incriminating response
29
Waiver of Miranda Rights
1. Knowing 2. Voluntary (no gov coercion) -Requires affirmative statement; silence insufficient
30
Voluntary Statements
Miranda waived if given after warning read - Def not required to be informed attorney trying to reach him
31
Invoking Miranda Rights
Right to counsel Right to remain silent
32
Right to counsel (5th Amendment)
Must be unambiguously asserted; police must stop all questioning - Police have no duty to clarify or provide counsel if invocation of right is ambiguous
33
Right to Remain Silent (5th Amendment)
Must be unambiguously asserted
34
Re-Approaching Defendant (5th Amendment)
After right invoked, police may not re-approach later (applies to counsel, not silence) Exception: break in custody for 14+ days, police may re-approach Defendant, re-Mirandize, and try for waiver
35
Excluding voluntary confession
Not protected by Miranda; admissible
36
Excluding involuntary confession
Inadmissible for any purpose
37
How to determine voluntary vs. involuntary confession
Totality of circumstances 1. Police conduct 2. Def characteristics (age, edu, exp) 3. Timing of statement
38
Excluding second confession
May be admissible if initial confession result of good faith mistake - confession obtained in violation of Miranda, rights later read, Defendant waives and confesses again
39
Excluding voluntary statements in violation of Miranda
Inadmissible as substantive evidence, but can be used to impeach if inconsistent with later testimony
40
Excluding physcial evidence
Physical "fruits" of a voluntary confession can be admissible evidence
41
What does the 6th Amendment guarantee?
Right to counsel at all critical stages of prosecution AFTER formal proceedings begin; does not prevent police from police questioning re: other crimes that haven't been charged -Formal proceedings = indictment or formal charge -Critical stage examples: post-charge in-person line-ups, questioning by gov informant
42
Requirements for waiving 6th Amendment rights
1. Knowing 2. Voluntary
43
Limits on Line-ups under Due Process
Must not be conducted in a manner that is 1. Impermissively suggestive 2. Provides substantial likelihood of misidentification
44
Trial Considerations - Sentencing
Any fact used to increase sentence beyond the statutory maximum must be charged and proved beyond a reasonable doubt Exception: prior conviction
45
What does double jeopardy prevent?
1. Prosecution for same offense after conviction or acquittal 2. Multiple punishments for the same offense
46
Double Jeopardy; What is the Blockburger test?
Determines same vs. separate offenses A separate offense means each crime contains an element the other does not
47
What is the purpose of the Blockburger test?
Prohibits multiple prosecutions of greater and lesser-included offenses Defendant can be charged with greater and lesser-included offenses in same action, but cannot be convicted of both; lesser merges

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