Criminal Procedure

Question 1

4th Amendment Protections

Answer 1

Under the 4th Amendment, a person is granted protection from unreasonable government searches. A search occurs when government conduct violates a person’s reasonable expectation of privacy.

Question 2

Places where there is a reasonable expectation of privacy (4th)

Answer 2

1. Homes;
2. Hotel Rooms;
3. Offices;
4. Backyard of the Home (curtilege)
5. Luggage

Question 3

Places where there is NOT a reasonable expectation of privacy

Answer 3

1. Public Streets
2. Open Fields (Even if private property)
3. Garbage left on the street
4. Abandoned property
5. Anything visible from public space
6. Anything that can be seen inside one’s home from public space

Question 4

E.S.C.A.P.E.S (exception to the warrant requirement)

Answer 4

1. Exigent circumstances;
2. Search incident to lawful arrest;
3. Consent
4. Automobiles
5. Plain View
6. Evidence from administrative searches
7. Stop and Frisk

Question 5

Search Warrant Requirements

Answer 5

1. Issued by a neutral and detached magistrate;
2. Be based on probable cause to beleive the items sought are fruits, instrumentalities, or evidence of crime; AND
3. Describe the place and property to be searched with particularity.

Question 6

If a search warrant fails to meet the requirements

Answer 6

The warrant is invalid, and the recovered items will be excluded from the prosecutor’s case-in-chief.

Question 7

Exigent Circumstances

Answer 7

Law Enforcement officers may conduct a search without a warrant if:
(1) The officers are in hot pursuit or immediate danger; OR
(2) The evidence would spoil or disappear in the time it would take to obtain a warrant.

However, a warrant is necessary for a search if the officers created the exigent circumstances.

Question 8

Search Incident to Lawful Arrest (SILA)

Answer 8

Law enforcement officers may conduct a search without a warrant if the search occurs at the time that a lawful arrest is made. The scope of the search is limited to objects within the reach of the arrestee (e.g. if the arrestee if restrained their reach is very limited – would limit the permissible scope of the search.)

Question 9

Consent

Answer 9

a) Law enforcement officers may conduct a search without a warrant if the person voluntarily consents to the search. Officers do NOT have to inform the subjects has the right to refuse consent to the search.
b) A Third Party with Apparent Authority can consent to a search. However, officers cannot search over a present occupant’s objection.

Question 10

Automobile Exception

Answer 10

Law enforcement can conduct a search of an automobile without a warrant if they have probable cause to beleive that an automobile contains contraband or evidence of a crime. They can search the parts of the vehicle, and containers inside, which could reasonably contain the items for which there is probable cause.

Question 11

Plain View Exception

Answer 11

Law Enforcement may seize evidence without a warrant if:
(1) The officers are legally on the premises;
(2) The evidence is observed (by any of the 5 senses) in plain view; AND
(3) There is **probable cause **to beleive the items are evidence of a crime or contraband.

Question 12

Evidence Obtained from Administrative Searches (Checkpoints, roadblocks, borders etc.)

Answer 12

Law Enforcement do NOT need search warrants to conduct administrative searches if the search is both:
(1) Reasonable; AND
(2) Conducted persuant to established police agency procedures that are designed to meet legitmate objectives while limiting the discretion of the officer.

Question 13

Stop and Frisk (Terry Stops)

Answer 13

Law enforcement can stop an individual when the officer has reasonable suspiscion, based on articulable facts (more than a hunch – less than probable cause) to believe the subject is or is about to be engaged in criminal activity.

During a Terry stop, an officer can frisk a subject for weapons without a warrant; but cannot initiate a search for evidence. If the frisk for weapons reveals objects who shape makes their identity obvious, the officer may seize those objects.

If probable cause develops during a Terry stop, the officer can make a lawful arrest of that individual.

Question 14

Arrests

Answer 14

In order to arrest an individual, an officer must have probable cause to beleive that the individual has committed a crime.
Probable cause for an arrest requires:
(1) The officer witnesses the comission of the crime; OR
(2) A person tells the officer that a crime has been committed.

Question 15

Arrests Inside a Home

Answer 15

An **arrest warrant **authorizes law enforcement officers to enter a home to arrest the individual.

Without an arrest warrant, officers can arrest an individual inside a home only if:
(1) Consent to enter; OR
(2) Exigent Circumstances

Question 16

Arrest Warrant Issuance

Answer 16

An arrest warrant is issued by a neutral magistrate based on a finding of probable cause that the named individual has committed a crime.

Question 17

5th Amendment

Answer 17

The 5th Amendment provides that no person shall be compelled in any criminal case to be a witness against himself. A Defendant who wishes to invoke the 5th does so by simply not taking the stand.

Question 18

Custodial Interrogations

Answer 18

1) A person is in custody when he reasonably believes that he is NOT free to leave;
2) A person is subject to an interrogation when the police know or should know their words or action are likely to elicit an incriminating response. Miranda does NOT protect volunteered statements, as they are by definition not the product interrogation.

Question 19

Miranda Rights

Answer 19

When a person is in custody, the police MUST inform the person of her Miranda before subjecting her to a police interrogation. This includes informing the subject:
1. She has the right to remain silent;
2. Any statement she uses may be used against her in court;
3. She has the right to consult an attorney and have the attorney present during questioning; AND
4. She has the right to have an attorney appointed if she cannot afford one

Question 20

Waiver of *Miranda *Rights

Answer 20

A Defendant may knowingly and voluntarily waive his Miranda rights. The burden is on the government to demonstrate by a preponderance of the evidence that the waiver was made knowingly and voluntarily.

Question 21

Invocation of Miranda Rights

Answer 21

The Police MUST cease their interrogation if either of the following occurs:
(1) The party being questioned affirmatively invokes their right to remain silent; Or
(a) After a substantial period of time, the police can go back to the suspect, give Miranda warnings again, and seek to interrogate her further.
(2) The party being questioned affirmatively invokes her right to counsel.
(a) The interrogation cannot resume until the lawyer is present, the suspect reinitiates the interrogation, or 14 days have passed since the suspect was released from custody.

Question 22

Miranda Violations

Answer 22

A statement obtained in violation of Miranda is inadmissible for the prosecutions case-in-chief but CAN be used to impeach the defendant.

Question 23

Exceptions to Miranda Requirement

Answer 23

Police do not have to give Miranda warnings where:
(1) The public’s safety is at risk;
(2) When the suspect being questioned is not aware that the interrogator is a police officer (i.e., undercover); OR
(3) If the questioning is biographical for routine booking purposes

Question 24

Harmless Error Rule

Answer 24

If evidence in violation of Miranda is admitted at trial, a guilty verdict will be upheld if the prosecution can prove beyond a reasonable doubt that the error was harmelss and the defendant would have been convicted anyway.

Question 25

Interrogation Tactics (Fruit of the Poisonous Tree)

Answer 25

5th Amendment protects against government compulsion of **involuntary** statements. Statements are involuntary only if the **police coerced** the **defendant** into making the statements looking at the **totality of the cirucmtances.** Relevant factors include: (1) **Length** of the interrogation; (2) The **Time** and **Location** the interrogation took place; (3) **Police tactics **used; (Force and Trickery) (4) The **Character** of the interogatee. Evidence obtained involuntarily is NOT admissible against a defendant for substantive or impeachment purposes.

Question 26

6th Amendment Right to Counsel

Answer 26

6th Amendment gaurantees a **criminal defendant** the assistance of counsel for his defense. The 6A right to counsel **attaches automatically** once **formal judicial adversarial proceeding have commenced**. (a). Formal charging, preliminary hearing, indictment, arraignment, all parts of the trial process.

Question 27

5th Amendment Right to Counsel

Answer 27

Must be **affirmatively invoked** does not **attach automatically.**

Question 28

Ineffective Assitance of Counsel

Answer 28

Supreme Court has held that part of 6A Right to Counsel is a right to **effective assistance of counsel.** If a convicted defendant can prove he had ineffective assistance of counsel, his conviction can be overturned. Defendant must show: (1) Lawyer's performance fell below an **objective standard of reasonableness**; AND (2) Reasonable probability that the result of the proceedings would have been different **BUT FOR** counsel's unprofessional errors.

Question 29

Identification Procedures

Answer 29

Three Main types of Identification Procedures: **1. Photo Arrays: **No right to be present, police must give photo array to Defendant after. **2. Pre-Indictment Lineups:** No right to counsel present. **3. Post-Indictment Lineups: **Defedant has a **right** to have counsel present, if right is **violated** evidence the witness identified the Defendant **MUST be excluded.**

Question 30

Impermissibly Suggestive Lineups

Answer 30

If the lineup was impermissibly suggestive, the court can exclude evidence of it. However, the witness is permitted to identify the defendant in court if the prosecution can establish by **clear & convincing** evidence that the witness would have identified the defendant even without the suggestive lineup.

Question 31

Exclusionary Rule

Answer 31

Evidence obtained in violation of the defendant's 4th, 5th, or 6th Amendment rights is **inadmissible** in a criminal case. Additionally, all evidence obtained as a result of the **constitutional** violation is inadmissible as **fruit of the poisonous tree**.

Question 32

Exclusionary Rule Exceptions

Answer 32

The exclusionary rule does not apply if: 1. The police had an **independent source** for the evidence that was distinct from the original illegal source; 2. The discovery of the evidence was **inevitable** regardless of the violation; 3. There is **attenuation in the causal** chain such that intervening events and the passage of time can remove the taint; **OR** 4. The police **relied in good faith** on either: (a) existing law later declared unconstitutional (b) A warrant that is facially valid and later found to be defective.

Question 33

Right to a Jury Trial

Answer 33

6th Amendment gaurantees a **criminal defendant** the right to a jury trial for all **serious offenses.** Serious offenses are those for which the authorized punishment is **more** than **6 months.** The potential jury pool must represent a **fair-cross section** of the community from which no distinctive group is excluded. **However,** the actual jury that is seated must be only **impartial** -- it does NOT have to represent a fair cross section of the community. Potential jurors may be removed for cause to ensure an impartial jury **OR** through the use of **preemptory challenges**. Preemptory challenges allow each side to remove a limited number of jurors for any reason other than race or gender.

Question 34

Guilty Pleas

Answer 34

A guilty plea **waives** the trial rights the defendant would otherwise have. To be valid, the judge must: (1) Inform the Defendant of his rights and ensure the defendant understands those rights; (2) Inform the Defendant of a **possible sentence**; (3) Make sure there is a **factual basis** for the plea; (4) Determine that the plea did not result from **force, threats, or improper promises**; AND (5) Make sure the Defendant understands the **immigration consequences** of a guilty plea.

Question 35

Burden of Proof

Answer 35

Prosecution must prove every element of the crime **beyond a reasonable doubt** in order to obtain conviction of a defendant. However, the government can shift the burden of proof to the defendant in regards to **affirmative defenses** argued by the defendant.

Question 36

Double Jeopardy

Answer 36

Double Jeopardy ensures that the Defendant is protected against: (1) **Prosecution** for the **same offense** after **acquittal**; (2) Prosecution for the **same offense** after **conviction**; **AND** (3) **Multiple** Prosecutions or punishments for the **same offense.** Two **distinct crimes** DO NOT constitute the "same offense" for double jeopardy purposes if each crime requires **proof of a fact which the other does not**.

Question 37

Motion for Judgment of Acquittal

Answer 37

After the government closes its evidence or after the close of all the evidence, the court, on the defendant's motion, must enter a judgment of acquittal for the defendant if the evidence is **insufficient to sustain a conviction**.