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Flashcards in Criminal Procedure Deck (23)
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Constitutional Requirements Binding on States

  1. 4th amendment prohibits unreasonable searches and seizures and the exclusionary rule
  2. 5th amendment privilege against compulsory self-incrimination
  3. 6th amendment right to speedy trial
  4. 6th amendment right to public trial
  5. 6th amendment right to trial by jury
  6. 6th amendment right to confront witness
  7. 6th amendment right to compulsory process for obtaining witnesses. 
  8. 6th amendment right to assistance of counsel in felony cases and in middemeanor cases in which imprisonment is imposed
  9. 8th amendment prohibition against cruel and unusual punishment


Constitutional Rights not binding on states

  1. right to indictment by grand jury
  2. prohibition against excessive bail does not necessarily create a right to bail



Exclusionary Rule

Judge made doctrine that prohibits evidence obtained in violation of the 4, 5, and 6th amendment rights. "i.e. fruit of the poisonous tree.


  1. Fruits derived from violation of miranda
  2. evidence obtained from a source independant of the original illegality
  3. an intervening act of free will (confession after illegal arrest)
  4. inevitable discovery - prosecution must show 
  5. violations of the knock and accounce rule

Limitations of the Rule

  1. inapplicable to grand juries, civil proceedings, violations of state law, internal agency rules, and parole revocation proceedings
  2. good faith reliance on law, defective search warrant, or clerical error
  3. use of excluded evidence for impeachment purposes

Harmless Error Test

  1. if illegal evidence is admitted, then conviction should be overturned unless it can be shown beyond a reasonable doubt tha tthe error was harmless. 

Enforcing the Exclusionary Rule

  1. should be decided by the judge before the evidence is heard by jury.  


Arrest Warrants

  1. Before arresting someone in a public place, warrants are not required.
  2. But the non-emergency arrest of an individual in his home requires an arrest warrant
  3. Station House Detention - police need probable cause to arrest you, to compel you to go to the police station for fingerprinting or for interrogation



Search and Seizure - flow chart

  1. Generally, the 4th AM provides that people should be free from unreasonable searches and seizures.  This right includes the right to be free from unreasonable arrests by the police
  2. General Approach
    1. Does the D have a 4th AM right?
      1. Was the search or seizure by a governmental agent?
      2. Did the search violate the defendant's reasonable expectation of privacy?
    2. If so, did the government agent have a warrant?
      1. Was the warrant proper and was the warrant properly executed?
      2. or can the search be saved with the good faith exception?
    3. If the police did not have a warrant, did they make a valid warrantless search?


Search and Seizure - 4th Amendment

  1. Governmental conduct
    1. the publicly paid police (on or off duty)
    2. any private individual acting at the direction of the public police
    3. Privately paid police are not government unless they are deputized with the poer to arrest you (campus police)
  2. reasonable expecation of privacy
    1. Standing to object to the search
      1. always have standing if:
        1. you own the premises searched
        2. you live in the place searched
        3. you are an overnight gues of the place searched
      2. sometimes standing if:
        1. You are legimately present when the search takes place
        2. you own the property seized
      3. No standing if:
        1. passendger in a car, who is not the owner or owner of property in the car
        2. Drug dealer briefly on the premises of someone else for drug purposes
    2. Things held out to the pulic have no expectation of privacy
      1. the sound of your voice
      2. style of handwriting
      3. paint color on car
      4. account records held at bank
      5. monitoring the location of your car on public street or driveway
      6. anything that can be seen across open fields
      7. anything that can be seen by a flying over public air space
      8. odors emanating from your luggage
      9. garbage


Search Warrants - Validity Requirements

  1. must be issued by a neutral and detached magistrate
    1. AG is not neutral
    2. paid incentives for issuing warrants are not neutral
    3. court clerks are neutral
  2. Must be based on probable cause, look to the totality of the circumstances
    1. police observation
    2. may be based on hearsay
    3. may be based in part from an informer's tip, even if anonymous
  3. Must be precise on its face - must state with particularity the place to be searched and the items to be seized
  4. must be properly executed
    1. without unreasonable delay
    2. after announcement (unless that presents a danger to officer)
    3. person or place searched or seized within scope of warrant


Exceptions to the Warrant Requirement

Searches Incident to a lawful arrest

  1. the arrest must be lawful - 
  2. the search must be contemporaneous in time and place with the arrest
  3. Scope - only the person and his wingspan may be searched
    1. places in which he can reach to store a weapon
    2. when in a car, this does not include the trunk

Automobile Exception - to search a car without a warrant requires

  1. Probable cause - the same probable cause they would have needed to obtain a warrant (that the vehicle contains the fruits, instrumentalities or evidence of a crime
  2. no need to arrest the driver, nor need for probable cause that the driver has committed a crime
  3. scope - police may search the whole car, including the trunk, and may open any package or luggage within the car, as long as the items for which they are looking could reasonably hidden in those compartments.  (cannot search for immigrants in glove box).  police may also tow the vehicle to station and search it later

Plain View - The police may seize property without a warrant where they

  1. are legitimately on the premises
  2. discover evidence, fruits, or instrumentalities of a crim or contraband
  3. see such evidence in plan view, AND
  4. have probable cause to believe that the item is evidence, contraband or a fruit or instrumentality of a crime


  1. Must be voluntary and intelligent
  2. person must have authority to give consent.  where two or more people have a equal right to property, anyone of them can consent to search.  but if two people are present and one denies, then police cannot come in.
  3. saying they have a warrant negates consent, bu the plice do not have to inform someone of their right to refuse consent. 

Stop and Frisk

  1. Police Officer may stop a person without probable cause where there is a reasonable suspicion of criminal activity
  2. scope - limited to a pat down of outer clothing
  3. admissibility - weapons are always admissible as long as the stop was reasonable.  if non-weapon, admissibility will depend on how much like a weapon or contraband could it have appeared from the outside (arising to reasonable suspicion)

Hot Pursuit and evanescent evidence (evidence that could get away if you take time to get a warrant. Police may even chase criminal suspect into a private dwelling.



Wiretapping and Eavesdropping

All Wiretapping and eavesdropping requires a warrant.  validity requirements still apply. 

all should assume that they could be speaking to a person who is wire tapped.  



5th Amendment Against Self-Incrimination - Miranda

  1. A Miranda warning is a pre-requisite to the admissibility of any statement made by the accused during custodial interrogation
  2. only applies if:
    1. the persion is in custody - not free to leave (restrained)
    2. there is an interrogation - any conduct that the plice knew or should have known may produce a damaging statement.
      1. spontaneous statements by the accused do not need a Miranda warning
    3. Miranda Waiver - a suspect may waive his Miranda rights, but the prosecution must prove that the waiver was knowing, voluntary and intelligent.  NO waiver of Miranda right from silence or should shrugging.
    4. 5th AM right to counsel - When upon hearing the Miranda Warning, someone invokes his right to counsel, re-initiation of interrogation by the police without his attorney present violations the Defendant's 5th Amendment right to counse.
      1. the 5th AM right to counsel, is NOT offense specific.  police must stop interrogation of ANY issue. 
    5. Any other time a suspect asks for an attorney (not after Miranda), he invokes his 6th Am right to counsel.
      1. the 6th Am right to counsel IS offense specific.  
    6. Exception - SC has allowed interrogation without Miranda warning where it was reasonably prompted by a concern for public safety.  


Pre-trial Identification defenses 

  1. Two Bases for Attack
    1. Denial of Right to Counsel
    2. Denial of Due Process
  2. Denial of Right to Counsel
    1. Generally, under the 6th AM a suspect has a right to the presence of an attorny at any post-charge line-up or show -up
    2. But no right to counsel, when the plice show a witness or victim a photograph of the defendant
  3. Denial of Due Process
    1. Where a pre-trial identification is unnecessarily subjective and there is a substantial likelihood of misidentification that defendant may attach the identification as denying due process.  In such case, those pre-trial identificiations must be excluded.
    2. But that same witness may make an in-court identification depsite the existence of a prior unconstitutional identification, as long as the prosecutor can verify the identification with an independant source (i.e. proof that the witness had ample time to see accused at the time of the crime)



  1. Bail issues are immediately appealable
  2. preventive detention is constitutional


Grand Juries

  1. States doe not have to use grand juries as a regular part of their charging process. People may be charged by a writing signed by the prosecutor stating the crime
  2. exclusion does not apply to the conduct of grand juries.  a grand jury witness may be compelled to testify based on illegally seized evidence
  3. the proceedings of grand juries are secret.  the Defendant has no right to appear and no right to send witnesses.  



  1. Right to an unbiased Judge
    1. biased judge would have a financial interest in the outcome
    2. or would have some actual malice toward defendant
  2. Juries - the 6th and 14th am guarantee the right to public trial
    1. Right to a jury only applies where
      1. the maximum sentence exceeds 6 months, or
      2. the sum of the sentences for criminal contempt exceeds 6 months
    2. The minimum number or jurors is 6
      1. if you use 6 jurors, then decision must be unanimous
      2. There is no constitutional right to a 12 person unanimous verdict
    3. The cross sectional requirement - you are the right to have the jury pool reflect a fair cross section of the community.
      1. but there is no right have the final jury reflect a cross-section of the community. 
    4. It is unconstitutional for the prosecution or the defense to exercise preemptory challenges to exclude prospective jurors based on race or gender
  3. Ineffective Assistance of Cousel
    1. Deficient performance by counsel
    2. but for such deficiency, the result of the proceeding would have been different.
  4. Speedy trial - this right begins upon arrest or charge of offense.  it is judged by the totality of the circumstances


Pre-trial disclosures

  1. Prosecution has duty to disclose exculpatory evidence
    1. failure to disclose can lead to reversing a conviction if
      1. evidence is favorable to defendant
      2. AND prejudice resulted from the non-disclosure.  reasonable probability that outcome owuld be different. 
  2. Defendant must disclose alibi defense during pre-trial
  3. defendant must present insanity defense during pre-trial


Competency to Stand Trial

  1. Defendant cannot be tried if he is mentally incompetant at the time of trial
  2. mental incompetence is when he:
    1. lacks a rational as well as factual understanding of the charges, or
    2. lacks sufficient present ability to consult with his lawyer with a reasonable degree of understanding.  
  3. Detention of the Insane defendant.  He can be detained for longer than the criminal sentence while insane.  once he regains sanity, he cannot be held indefinitely.  


Right to Confront

6ht am grants to a defendant in a criminal proseciution the right ton confront adverse witnesses.  Right is limited by public purpose (protection of minors)

  1. Co-Defendant's confession
    1. non-confessing co-defendant can keep the implicating parts of the confessor out of the trial.  
    2. confessing defendent undergoes cross-exam, then confession admitted
    3. cooraborating confession can be used to rebut co-defendant's claim that the confession was obtained coercively
  2. Prior testimonial evidence may not be admitted unless
    1. the declarant is unavailable and
    2. the defendant had an opportunity to cross exam
    3. does not apply when defendants wrong doing keeps witness from testifying


Guilty Pleas and Plea Bargaining

General Rules 

  1. the SC will not disturb guilty plea after sentence
  2. Contract theory of plea bargaining - SC treats plea bargaining like contracts, both sides held to whatever the deal is.

Taking the Plea - the judge must determine that the plea is voluntary, and inform Defendant on the record

  1. the nature of the charge
  2. the maximum authorized sentence and any mandatory minimum sentence
  3. that he has a right to not plead guilty and that if he does plead guilty, he waive the right to a jury trial

4 Good bases for withdrawing a guilty plea after sentence

  1. the plea was involuntary
  2. lack of jurisdiction
  3. ineffective assistance of counsel
  4. failure of the prosecutor to keep an agreed upon plea bargain



  1. Generally, the Defendant may not be given a harsher sentence of re-tiral after successful appeal. 
  2. The Death Penalty
    1. Any death penalty statute that does not give the defendant a chance to present mitigating facts and circumstances is unconstitutional
    2. there can be no automatic category for imposition of the death penalty
    3. the state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional
    4. only a jury and a not a judge may determine the aggravating factors justifying imposition of the death penalty.  


Double Jeopardy

Generally - once jeopardy attaches, the defendant may not be retried for the same offense

When does jeopardy attach?

  1. at a jury trial when the jury is sworn
  2. at a judge trial when the first witness is sworn
  3. generally, jeopardy does not attached when the proceedings are civil

Same Offense

  1. Generally, two crimes do not constitute the same offense if each crime requires proof of an additional element the other does not
  2. lesser included offenses(i.e. Robbery = larceny + assault):
    1. being put in jeopardy for the greater offense bars retial of the lesser offense.  
    2. Being put in jeopardy for the lesser offense bars retrial of the greater offense (except for battery that escalates to murder when victim dies)
  3. Separate Sovereigns - prohibition against double jeopardy does not apply to trials by separate sovereigns.  Thus a person may be tried for the same conduct by both the state and federal government or by two states.  But not by a state and its municipalities.

Exceptions permitting re-trial

  1. Hung jury - the jury is unable to agree on a verdict
  2. mistrial for manifest necessity/defendant's request
  3. re-trial after successful appeal
  4. breach of an agreed upon plea  bargain by the defendent.  when D breaches original plea bargain, then sentence can be withdrawn and the original charges reinstated.


5th Am Privilege Against Self-Incrimination

  1. Applies to any person asked under oath in any case a question which tends to incriminate them
  2. Waiver - you must asset the privilege the first time the question is asked, or you will have waived that privilege in all subsequent proceedings
  3. Scrope - 5th Am does not protect a defendant from having to use his bodies to incriminate him (hair sample, urine, etc.  Only protects from compelled testimony, i.e. lie detector test, etc
  4. It is unconstitutional for the prosecutor to make a negative comment on the defendants failure to testify or his remaining silent on hearing the Miranda warning
  5. 5th AM privilege can be eliminated by
    1. Grant of an immunity - use and derivative use immunity - promise that the gov will not use your testimony or evidence gathered from your testimony to convict you, but govt may prosecute you on other evidence it had prior to granting the privilege
    2. There is no possibility of incrimination - SOL had run
    3. Waiver - Crminal defendant who take the witness stand waives immunity for all legitimate subject of cross exam


Juvenile Court Proceedings

Following rights must be given:

  1. written notice of charges
  2. assistance of counsel
  3. opportunity to confront and cross-exam
  4. right not to testify
  5. right to have guilt established by proof beyond a reaosnable doubt

SC has not right to trial by jury for juvenile deliquency

Double jeopardy rule attaches once juvenile court adjudicates.  child cannot then be tried as an adult. 


Forfeiture Actions

Owner of personal property not entitled to notice and hearing before property is seized. 

Owner of real property is entitled to notice and hearing

Penal fines are subject to the Excessive Fines Cluase which states that forgeiture must not be grossly disproportionate to the gravity of the offense

No protection afforded to innocent owners of property where property was used for illegal purposes.