Criminal Procedure Flashcards
- Need warrant if in home
- Warrant based on probable cause
- Probable cause is reasonable belief law was violated
Three Types of Allowed Routine Stops?
- Automobile: if reasonable suspicion based on objective standard
- Fixed checkpoints for compliance with laws
- Stop and Frisk: if reasonable suspicion supported by articulable facts
4th Amendment - Search and Seizure?
Prohibits unreasonable search and seizure; without warrant presumed unreasonable.
Three Reasonable Expectation of Privacy Scenarios?
- Open fields/flyover: generally fine because outside home in view of public
- Sensory Enhancing: only ok if availble to public and not invasive
- Dog Sniffing: cannot extend beyond reasonable time required unless reasonable suspicion
4th Amendment - Warrant Requirements?
- Probable cause
- Neutral magistrate
- Particularity
Generally, must knock and announce.
No Warrant Exceptions?
SPACES
1. Search Incident to Arrest: lawful arrest, within reach
2. Plain View
3. Automobile: only with probably cause it contains evidence/contraband; impound if arrested
4. Consent
5. Exigent Circumstances: destruction of evidence, injury to persons, hot pursuit
6. Stop and Frisk: reasonable suspicion, based on articulable facts, pat down only for weapons; plain feel doctrine
5th Amendment - Miranda Warnings?
- Right to remain silent
- Anything said may be used against
- Right to attorney
5th Amendment - Miranda Required If:
Custodial interrogation.
* Custodial = reasonable person would beleive not free to leave
* Interrogation = words/actions by police that they should know are reasonably likely to elicit incriminating response.
Suspect must be aware. Undercover agent is not custodial.
5th Amendment - Miranda Exception?
Public Safety prompted and related questions
5th Amendment - Re-Mirandize?
Only after 14 days after custody
5th Amendment - Waiver of Miranda?
Voluntary, knowlingly, intelligently. May be express or implied.
5th Amendment - Right to Counsel - How to invoke and result?
- Unambigious requirest by accused to invoke
- Police must stop all questioning without lawyer present
5th Amendment - Right Against Self-Incrimination?
Applies only to:
1. Testimony or communicative evidence
2. That could expose her to criminal liability
5th Amendment - Double Jeopardy?
- Cannot be tried for same offense twice
- Applies if jury or first witness sworn in
5th Amendment - Due Process
- Confession must be voluntary
- No unneccessarily suggestive identification
6th Amendment - Right to Counsel?
- Counsel at post-charge line up, show up, or sentencing.
- NOT for photo id, handwriting, fingerprints, physical evidence
6th Amendment - Ineffective Assistance of Counsel?
- Counsel performance deficient
- Based on reasonably competent attorney
- Requires different result but for deficient performance
6th Amendment - Confront Witnesses?
- Adverse/hostile witness
- Compel testimony or cross-examine
- Only for testimonial statements (not testimonial during on-going emergency)
- For co-defendant (if one confesses): redact statement or other D takes the stand for cross
6th Amendment - Right to Jury Trial When?
- Serious offenses
- With potential imprisonment of > six months
6th Amendment - # of Jurors?
- At least 6 but may be 12
- If 6, must be unanimous
- Federal crime: unanimous
6th Amendment - Not Fair Cross Section If:
- Group excluded is distinctive
- # in represented group not reasonable compared to # in community; and
- Systemic exclusion
6th Amendment - Right to Speedy Trial Balancing Factors?
- Length of delay
- Reason for delay
- Prejudice to D
- Time and manner in which D asserted right
6th Amendment - Right to Preliminary Hearing?
Right to if probably cause not established. May waive. Varies by jurisdiction.
Exclusionary Rule?
- Cannot use evidence if found in violation of D’s 4th, 5th, or 6th Amendment rights.
- D needs standing - must be her own rights violated (not someone else’s)
