Criminal Procedure

Question 1

What are the 2 exceptions to the rule that constitutional protections only apply to govt. actions?

Answer 1

1) when a private person is acting as a govt. agent

2) defense attorneys (both private and public) are treated as govt. actors for 6th Amendment assistance of counsel analysis

Question 1

what is a seizure?

Answer 1

when a cop, through use of physical contact or show of authority, intentionally restrains somebody’s freedom of movement

Question 2

how do you test whether a seizure has occurred?

Answer 2

Depends on whether a reasonable innocent person would feel free to disregard the cop and leave

Question 3

What is the basis for a stop and frisk/Terry stop?

Answer 3

when the cop has a reasonable suspicion based on articulable facts to believe the suspect is or is about to engage in criminal conduct

Question 4

What can an officer search for in a Terry stop?

Answer 4

They can pat you down for weapons, but they can’t frisk and search you for evidence

If the pat down reveal objects whose shapes make their identity obvious (weapon, contraband, etc.), the cop can seize them

Question 5

How does the legality of a Terry stop affect the admissibility of the evidence at trial?

Answer 5

If the basis for the stop was illegal but the officer develops a valid basis for an arrest during the frisking, the evidence found is still admissible at trial.

If the stop was unlawful and a valid basis for an arrest doesn’t develop, then the evidence is inadmissible at trial.

Question 6

what is the basis for a vali traffic stop?

Answer 6

cop must have reasonable suspicion.

Once the stop occurs, the cop can search an occupant for weapons if they have a reasonable basis to believe the occupant is armed

Question 7

what is needed for a valid basis to arrest?

Answer 7

Cop must have probable cause to believe that the arrestee committed a crime

Question 8

What are the elements for a valid arrest warrant?

Answer 8

1) issued by a detached and neutral magistrate/judge
2) must be probable cause to believe the named arrestee committed a crime
3) warrant must identify the arrestee and offense they’re being arrested for

Question 9

When can police arrest someone in their dwelling without an arrest warrant?

Answer 9

1) Exigent Circumstances (felony hot pursuit, danger to others, etc.)
2) Consent

Question 10

Can an arrest warrant give police a valid basis to enter the arrestee’s home?

Answer 10

Yes, they can enter the arrestee’s home for the purpose of arresting him/her.

But they can’t continue to search the arrestee’s home, unless one of the warrant exceptions applies

Question 11

What are the 2 bases for allowing a search incident to arrest?

Answer 11

1) To prevent the destruction and/or concealment of evidence

2) To protect cops from weapons the arrestee could have on them

Question 12

When can police warrantlessly arrest someone?

Answer 12

1) If they personally witness the arrestee commit a crime
2) If it’s a felony, if the cop has probable cause to believe the arrestee committed the felony

(if it’s a misdemeanor, the cop needs to have actually witnessed it or have an arrest warrant)

Question 13

When can a cop search a person incident to arrest?

Answer 13

If the arrest is legal, the cop can search the arrestee and the immediate area around the arrestee (arrestee’s wingspan).

Question 14

What are the specific rules for a search incident to arrest in a vehicle?

Answer 14

If the arrestee is still near the car and unrestrained, the cop, after initiating a lawful arrest, can search the passenger compartment of the car

Question 15

Do police need a warrant to search a person’s cell phone incident to an arrest?

Answer 15

Yes. Police can seize your cell phone incident to arrest, but they can’t unlock and search through it without a search warrant or consent

Question 16

what places do you have a reasonable expectation of privacy?

Answer 16

1) your home
2) your hotel room
3) your office
4) your backyard/curtilage
5) your luggage

Question 17

For what kinds of areas do you not have a reasonable expectation of privacy?

Answer 17

1) abandoned property
2) open fields
3) public streets
4) garbage cans left out on the street
5) bank records
6) things left in plain view
7) inmate’s cell
8) smells emanating from yourself or your property

Question 18

What are the requirements for getting a search warrant?

Answer 18

1) issued by a neutral magistrate
2) probable cause to believe the items sought are evidence of a crime, fruits of a crimes, or instrumentalities of a crime
3) warrant must describe the property and placed to be searched with some particularity

Question 19

What is the fruit of the poisonous tree doctrine?

Answer 19

If evidence is obtained during an illegal search, that evidence is excluded from the prosecutor’s case

Question 20

What are the exceptions to the warrant requirement for a valid search?

Answer 20

1) automobile exception
2) search incident to arrest
3) consent
4) exigent circumstances
5) stop and frisk
6) plain view
7) evidence obtained from administrative searches (health inspections of a restaurant, TSA searches, etc.)

Question 21

How does a search incident to arrest work when the arrestee is being arrested in their own home?

Answer 21

The police can do a protective sweep of the immediate area surrounding the arrestee for weapons or evidence

Question 22

What is the automobile exception to the warrant requirement?

Answer 22

If police have probable cause to believe that a vehicle contains contraband, they can search the parts of the vehicle where the contraband could be located

this excludes any area in the car where the contraband couldn’t reasonably be located (ex. looking for an illegal bazooka inside the glovebox)

Question 23

If multiple people in a dwelling disagree about giving an officer consent to search the home, how does that affect the occupants?

Answer 23

The police cannot use any evidence/contraband they find against a person who affirmatively refuses to give consent to search the home

Question 24

what is the definition of a "search"?

Answer 24

A government intrusion into an area where someone has a reasonable expectation of privacy

Question 25

what is the precedent set by Miranda v. Arizona?

Answer 25

statements made as the result of a custodial interrogation are inadmissible unless they are accompanied by safeguards, i.e., the Miranda warnings

Question 26

When is an interrogation "custodial"?

Answer 26

The person being questioned has either been arrested or is otherwise not free to leave

Question 27

How can a person invoke their right to remain silent?

Answer 27

They must affirmatively assert the right. Once they do, the police must stop interrogating them, but they can come back after a substantial amount of time has passed and resume the questioning

Question 28

What makes a questioning an "interrogation" for Miranda purposes?

Answer 28

when the official engages conduct and/or questioning that a police officer would or should know would elicit a response.

Question 29

How can a person invoke their right to counsel?

Answer 29

They must affirmatively invoke the right (say "I want an attorney). If someone invokes the right to counsel, the cops must stop the interrogation and cannot re-initiate the interrogation unless the suspect initiates conversation again or the lawyer is present.

Question 30

what is the public safety exception to the Miranda requirements?

Answer 30

Police don't have to Mirandize a suspect before questioning if public safety is at risk (ex. ticking time bomb)

Question 31

Are statements obtained in violation of Miranda admissible?

Answer 31

They aren't admissible as evidence in the prosecution's case, although they can be used for impeaching the defendant

Question 32

What is the scope of the 5th Amendment right against self-incrimination?

Answer 32

It only applies to individuals, so unions and corporations can't invoke it. It also only applies to testimonial evidence, so it doesn't apply to physical evidence like DNA samples or handwriting samples

Question 33

How does receiving prosecutorial immunity affect the 5th Amendment right against self-incrimination

Answer 33

If someone gets immunity from prosecution for their statements, they can't keep invoking their right against self-incrimination

Question 34

Must police inform you that your lawyer is trying to reach you?

Answer 34

No. Police do not have to tell you that your lawyer is trying to contact you, even if you've invoked your right to counsel

Question 35

How does the 6th Amendment right to counsel apply to police line-ups?

Answer 35

If the line-up is done before the indictment, the defendant has no right for counsel to be there. If the line-up is done after the indictment, the defendant does have a right for counsel to be present

Question 35

When does the 6th Amendment right to counsel apply?

Answer 35

It applies as soon as someone has been officially charged with a crime that's a felony or a misdemeanor in which the defendant is SENTENCED to jail time. It applies to all critical stages of a person's criminal proceedings (prelim hearing, evidentiary hearings, etc.)

Question 36

How does the 6th Amendment right to counsel apply to victims identifying a suspect via photo arrays?

Answer 36

Neither the defendant nor their lawyer have a right to be present when a victim makes identifications via a photo array. However, the police must turn over the array to the defendant after the victim is done with it.

Question 37

When is a police line-up admissible as evidence?

Answer 37

A line-up where the victim picked the defendant out of the line-up is inadmissible if it can be shown that the line-up was impermissibly suggestive or that the line-up was tainted. If this is shown, the prosecutor must show via clear and convincing evidence that the victim would've identified the defendant even without the line-up

Question 38

what is the exclusionary rule?

Answer 38

A rule stating that evidence obtained in violation of a defendant's 4th, 5th, or 6th Amendment rights is inadmissible at the defendant's trial

Question 39

What are the exceptions to the exclusionary rule?

Answer 39

1) knock and announce exception: if police fail to knock and announce before serving a warrant, evidence they is still admissible 2) Inevitable discovery: If the evidence would have been discovered anyway through lawful means, it'll be admissible 3) Independent source: if the police discover the evidence via an independent source, it's admissible (ex. private citizen tells police about the evidence) 4) Attenuation in the causal chain: intervening events and the passage of time can remove the taint of the unconstitutional conduct. 5) Good faith: officers violate an individual's rights but have good-faith reason to believe their conduct constitutional, such as relying on a preexisting law that was later declared unconstitutional, or a warrant that is later found defective

Question 40

Can police initiate suspicion-less traffic stops, such as checkpoints?

Answer 40

if the checkpoint stop is based on neutral, articulable standards and its purpose is closely related to an fissue affecting automobiles (ex. drunk driving).

Question 41

For a death penalty statute to be constitutional, what are the 3 requirements it must meet?

Answer 41

The statutory scheme must provide: (i) Clear and objective standards; (ii) Specific and detailed guidance; and (iii) An opportunity for rational review of the process.

Question 42

Who cannot be subject to the death penalty, no matter what?

Answer 42

1) people who were under the age of 18 when they committed the crime 2) defendants who are insane at the time of execution 3) defendants who have a mental impairment/handicap

Question 43

What safeguards must the state meet before they execute someone under the death penalty?

Answer 43

1) must be a bifurcated trial process 2) defendant must have the opportunity to present mitigating evidence 3) the judicial process must sufficiently narrow the class of death-sentence eligible offenses.

Question 44

What is the Apprendi Doctrine in relation to the 6th Amendment?

Answer 44

A rule that judges cannot enhance a criminal sentence beyond the statutory maximums based on facts other than those decided by the jury (i.e., judge must make their sentencing decision based only on facts considered and decided by the jury)

Question 45

what is the exception to the Apprendi Doctrine?

Answer 45

A judge can take notice of and enhance a sentence based on the defendant's prior criminal convictions, even if the jury never found those convictions

Question 46

What are the 2 kinds of mistrial?

Answer 46

1) manifest necessity mistrial, which does allow for the defendant to be re-tried 2) no manifest necessity mistrial, which prohibits the defendant from being re-tried

Question 47

what is the knock and announce rule?

Answer 47

Police generally must knock and announce their presence when serving a search or arrest warrant at someone's house. Violating this rule doesn't trigger the exclusionary rule

Question 48

what is the plain error doctrine?

Answer 48

A defendant who has failed to preserve a claim of error in district court is still entitled to appellate relief when: (i) The district court committed error under the law in effect at the time the appeal is heard; (ii) The error is obvious under that law; and (iii) The error affected the defendant’s substantial rights.

Question 49

What must a defendant prove to have their case reversed for ineffective assistance of counsel?

Answer 49

(i) Counsel’s representation fell below an objective standard of reasonableness; and (ii) Counsel’s deficient performance prejudiced the defendant, resulting in the reasonable probability that the outcome would have been different.

Question 50

when can an attorney remove a potential juror for cause?

Answer 50

if the juror isn't able to consider the case fairly and impartially

Question 51

Can you use a preemptory challenge to remove any potential juror for any reason?

Answer 51

Yes, unless you're removing them because of their race or sex

Question 52

What are the 5 situations where the good faith exception won't apply?

Answer 52

(i) No reasonable officer would rely on the affidavit underlying the warrant; (ii) The warrant is defective on its face; (iii) The warrant was obtained by fraud; (iv) The magistrate has “wholly abandoned his judicial role”; or (v) The warrant was improperly executed.

Question 53

What are the 3 exceptions to the Mirana requirements?

Answer 53

1) Public safety 2) Routine booking questions 3) Statements made to undercover police

Question 54

What must a court find for it to accept a defendant's guilty plea?

Answer 54

The judge must determine that the plea is both intelligent and voluntary. Voluntary: The plea did not result from force or improper threats or from promises other than those contained in the plea agreement. Intelligent: The defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea, and (iii) the rights that the defendant is waiving.

Question 55

What is the Blockburger test?

Answer 55

A test to see whether someone's 6th Amendment right against double jeopardy has been violated. Two crimes committed in one criminal transaction are deemed to be the same offense for Sixth Amendment purposes unless each offense requires proof of an element that the other does not. Crime #1 is A+B. Crime #2 is A+C. One requires an element that the other doesn't. It therefore doesn't violate double jeopardy. However, if Crime #1 is A+B, and Crime #2 is A+B+C, then that would violate double jeopardy since Crime #1 should merge into Crime #2 as a lesser included.

Question 56

What is the proper remedy if a defendant isn't informed of their right to counsel, and they enter a guilty plea?

Answer 56

That plea can be withdrawn by the defendant. If it is withdrawn, then it's inadmissible as evidence in the case.

Question 57

When does a person have a right to a jury trial?

Answer 57

If it's a criminal charge that carries a possible punishment of 6 months imprisonment

Question 58

What are the 3 protections given by the double jeopardy clause?

Answer 58

(i) Protection against a second prosecution for the same offense after acquittal; (ii) Protection against a second prosecution for the same offense after conviction; and (iii) Protection against multiple punishments for the same offense.

Question 59

What is transactional immunity

Answer 59

"Transactional" (i.e., “blanket” or “total”) immunity fully protects a witness from future prosecution for crimes related to her testimony.

Question 60

what is use and derivative use immunity?

Answer 60

“Use and derivative-use” immunity protects a witness in a criminal case from the use of the witness’s own testimony, or any evidence derived from that testimony, against the witness in a subsequent prosecution This does not stop a later civil suit from being brought against the witness using the witness's testimony

Question 61

Do police ever have to re-Mirandize someone?

Answer 61

Yes, if the interrogation is stopped for a long duration and then resumed, the suspect should receive fresh Miranda warnings

Question 62

when does the right against double jeopardy attach to a defendant?

Answer 62

in a jury trial, when the jury is sworn in. In a bench trial, when the first witness is sworn in. This means that any time prior to those occurrences, the prosecution can drop and re-initiate the charges, and it won't violate double jeopardy

Question 63

How does the 6th Amendment right to counsel differ from the 5th Amendment right to counsel?

Answer 63

The 5th Amendment right to counsel relates to counsel for custodial interrogations. The 6th Amendment right to counsel gives a criminal defendant the assistance of defense counsel for their case. The 5th Amendment right doesn't attach unless you affirmatively invoke it at the interrogation (ex. I want to speak to my attorney). The 6th Amendment right attaches automatically once there has been an indictment, information, or other formal charges

Question 64

What is the Batson Test for discriminatory preemptory challenges?

Answer 64

To prove that someone used their preemptory challenge to discriminate a juror on the basis of race or sex, these steps must be followed: 1) The moving party must establish a prima facie case of discrimination (e.g., the prosecution used peremptory challenges to strike only nonwhite jurors). 2) The party who exercised the peremptory challenge must then provide a neutral reason for the peremptory challenge (e.g., the strikes were based on age, not race). 3) If it does so, then the burden shifts back to the moving party to prove that the other party's reason was pretextual (e.g., the prosecution struck a 21-year-old black man but not a 21-year-old white man).

Question 65

What 4 factors will a court look at when analyzing a speedy trial right violation?

Answer 65

1) length of the delay 2) reasons for the delay 3) risk of prejudice to the defendant caused by the delay 4) whether the defendant affirmatively asserted his right to a speedy trial

Question 66

What rights exist for a trial to be open to the public?

Answer 66

Generally, the public have a right to sit in on a trial and observe it, and a defendant has a right to keep their trial open to the public. However, the trial can be made private if there's a substantial likelihood of prejudicing the defendant by keeping it open (ex. defendant is on trial for child molestation.)

Question 67

What is the Crawford Doctrine?

Answer 67

A 6th Amendment Confrontation Clause rule, stating that if a statement is testimonial (i.e., made under circumstances which would lead a reasonable person to believe that the statement would be used at a later trial), the 6th Amendment bars its admission if: 1) the statement's declarant is unavailable; and 2) defendant had no prior opportunity to cross-examine the declarant

Question 68

What is the Bruton Doctrine?

Answer 68

A rule stating that a defendant's own statements are always admissible against them, even if they invoke their right not to testify. If there are co-defendants, a non-testifying co-defendant's statements are inadmissible against the other defendant, because it violates the Confrontation Clause.

Question 69

What are the 4 duties of prosecutors?

Answer 69

1) Cannot knowingly present false evidence 2) Brady Doctrine relating to turning over all evidence to the defendant, especially favorable evidence 3) A prosecutor can't make inappropriate comments about the defendant, including comments on a defendant invoking their right not to testify at their trial, or make unfair remarks about the defendant's guilt or innocence to others (reporters or jury) 4) Prosecutor cannot contact the defendant outside the presence of their counsel

Question 70

What is the Brady Doctrine in relation to a prosecutor's duties?

Answer 70

A rule stating that the prosecutor must give the defense all material, exculpatory (evidence favorable to the defense) evidence. This rule includes 2 types of evidence: 1) evidence that tends to show that the defendant didn't do the crime. 2) evidence that would allow the defense the impeach the credibility of the prosecution's witness's

Question 71

How does a grand jury differ from a typical criminal court proceeding?

Answer 71

In a grand jury, the defendant does not have a right to counsel, nor the right to testify. Grand juries can also consider illegally obtained evidence and hearsay. Grand juries are also held privately, their decisions don't have to be unanimous, and the prosecutor has no duty to present exculpatory evidence to the grand jury.

Question 72

What happens if the police coerce, threaten, or make false promises to induce a defendant into making a guilty plea and/or admission?

Answer 72

That plea and/or admission is inadmissible

Question 73

What is the presumptive rule about the availability of bail?

Answer 73

It's presumed that bail is available unless the defendant poses a danger to the public or is a flight risk

Question 74

How can a defendant challenge the validity of a warrant that they think has false info?

Answer 74

defendant must establish by a preponderance of the evidence: 1) that the false information was knowingly, intentionally, or with reckless disregard for its truthfulness included by the affiant in the affidavit; and 2) that the information was necessary to a finding of probable cause by the magistrate.

Question 75

When is it not unconstitutional for a prospector to withhold favorable evidence from the defendant? (Brady rule)

Answer 75

If the nondisclosure of evidence does not cause prejudice against the defendant. Prejudice is when there's a reasonable probability that the defendant's conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant

Question 76

what is a structural error?

Answer 76

an error that affects the entire framework of a criminal trial and renders the trial fundamentally unfair (ex. denying right to jury trial)

Question 77

If a trial court commits a structural error, what should an appeals court do?

Answer 77

Automatically reverse the defendant's conviction

Question 78

what are some examples of structural errors that can render a criminal conviction automatically reversible?

Answer 78

1) denying a right to jury trial 2) denying right to counsel 3) discriminatory selection of jurors 4) defense attorney enters guilty plea over defendant's objection 5) improper jury instruction on the burden of proof 6) excluding the defendant from the courtroom during trial

Question 79

Can someone invoke their 5th Amendment right against self-incrimination in a civil proceeding?

Answer 79

Yes, so long as their civil testimony could be used against them in a future criminal proceeding