Criminal Procedure

Question 1

Exclusionary Rule

Answer 1

Prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial

Question 2

Fruit of the poisonous tree doctrine

Answer 2

Evidence derived or obtained from illegal govt. conduct is excludable against D

Arises when illegal police action leads to evidence

Question 3

4th Amendment

Answer 3

People have the right to be free from unreasonable searches and seizures, and warrants must be based on probable cause

Question 4

Seizure

Answer 4

Occurs when the government exercises control over a person or a thing. Must be a physical application of force by the PO or a show of force and a submission.

look at the totality of the circumstances and ask whether the average person would feel free to decline an officer’s requests or terminate the encounter altogether

Question 5

Investigatory Detention

Answer 5

A governmental seizure of a person that is less than a full custodial arrest. Will be considered reasonable if the PO has reasonable suspicion of criminal activity based on articulable facts.

Question 6

Arrest

Answer 6

An arrest occurs when police take an individual into custody for purposes of criminal prosecution or interrogation

Probable cause is always required for any valid arrest

Probable cause = reasonably trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is planning to commit a crime

*Warrants are rarely required for arrests

Police generally do not need a warrant before arresting a person in a public place

Exception —
- non-emergency home arrests require a warrant and reasonable belief suspect is at home
- unreasonable to arrest a person for a misdemeanor if it was not committed in the PO’s presence

Question 7

Search

Answer 7

A search occurs when there is a governmental intrusion into an area where a person has a reasonable expectation of privacy

Question 8

Reasonable Expectation of Privacy

Answer 8

REOP is determined by the totality of the circumstances

No REOP for inherently public things (smell of your stuff, records held by a third party like a bank, where a PO sees something in your yard from a place they are allowed to be)

Automatic standing — REOP always exists if D either:

1) Owns, has a right to possess, or lives in the premises to be searched, or

2) Is an overnight guest of the premises to be searched

Question 9

Standing

Answer 9

For someone to challenge a search or seizure, they must have standing to challenge gov conduct. Gov needs to violate YOUR REOP.

Question 10

Warrant

Answer 10

Unless an exception applies, govt. must have a properly executed warrant to conduct a search

Requirements for a valid warrant:

1) Based on probable cause — usually a police affidavit demonstrating probable cause that the search or seizure will produce evidence

–Affidavits — must contain facts showing probable cause

—May include information from anonymous sources

—If (1) there was a false statement, (2) affiant intentionally or recklessly included a false statement, and (3) false statement was material to finding probable cause, then warrant is invalid

2) Precise on its face — warrant must describe, with reasonable precision, the place to be searched and/or items to be seized

3) Issued by a neutral and detached magistrate

Question 11

Good Faith Exception to Invalid Search Warrant

Answer 11

exclusionary rule does not apply if police act in good faith on an invalid search warrant

Exceptions to good-faith reliance — police cannot rely on a defective warrant or erroneous law obtained in good faith if:

1) Affidavit completely lacks probable cause (i.e., no reasonable police officer would have relied on it),

2) Warrant is defective on its face,

3) Police or govt. official lied or misled magistrate, or

4) Magistrate has “wholly abandoned her judicial role

Question 12

Execution of Search Warrants

Answer 12

Timing — search warrant must be executed without unreasonable delay after it is issued

Knock and announce requirement — police must knock and announce their purpose, then wait a reasonable time for admittance before entering on their own accord

*Exception — knock and announce is not required if officers have reasonable suspicion that announcing their presence would be dangerous, futile, or would inhibit the investigation

Scope of search — limited to what is reasonably necessary to discover items described in the warrant

Police can detain people found on the searched premises. But police cannot search detained persons unless they are specifically named in the warrant or a valid warrantless search exception exists

Question 13

Search Incident to Lawful Arrest

Answer 13

Police may search a lawfully arrested person and his immediate surrounding area without a warrant

Requirements:

1) Arrest must be lawful

2) Search must be contemporaneous with the arrest

3) Search must be limited to area within suspect’s reach or movement (i.e., where he could obtain weapons or destroy evidence)

Limitation: cell phones — police may not search digital information on a phone seized during an arrest without a warrant

Question 14

Search Incident to Lawful Arrest - Automobile

Answer 14

after arresting occupant, police may search the vehicle’s interior, including glove box, if at the time of the search:

1) Arrestee is unsecured and may access the vehicle interior, or

2) They reasonably believe evidence of the crime for which the arrest was made may be found in vehicle

–Police cannot search trunk without probable cause or consent

–Breathalyzer — a warrantless breathalyzer test is valid following a lawful arrest based on probable cause of drunk driving

Question 15

Protective sweeps

Answer 15

police may sweep an area for officer safety or with reasonable belief that accomplices may be present

Question 16

Inventory search

Answer 16

police may search arrestee’s belongings or seized property when jailing an arrested suspect

Question 17

Automobile Search Exception

Answer 17

If probable cause exists, police may search an entire vehicle (including the trunk) and containers or compartments inside that may contain the evidence they are searching for

Requirements:

1) Police must have probable cause to search the vehicle; and

2) Probable cause must arise before the search begins

Scope of permissible search:

Police can search entire vehicle and all containers within the vehicle that might contain the object for which they are searching (E.g., police may open packages or luggage that might contain evidence relating to the reason they searched the vehicle)

Police may search passengers and their belongings

Vehicle parked within curtilage of one’s home (e.g., driveway) requires search warrant

Question 18

Plain View Searches

Answer 18

Police may search from any place where they are legitimately present when viewing (i.e., when conducting the search)

Scope of plain view searches — includes anything viewable from land or public property, even if only viewable through binoculars

– Plain smell — included within plain view

—If a smell gives rise to probable cause from a place of legitimate police presence, they can search that item

Limitations — police cannot use technology not generally available to the public to view evidence that may constitute a plain view search (e.g., infrared scanners that can view through walls)

Note — use of drones for plain view searches is unsettled law and thus unlikely to appear on the MBE

Question 19

Seizures based on Plain View

Answer 19

police may seize evidence in plain view without a warrant if:

1) Police are legitimately on the premises from which they viewed the evidence to be seized;

2) Criminal activity or contraband is immediately apparent; and

3) Police have probable cause to believe that plainly viewed evidence is contraband or relates to a crime

Question 20

Consent to Search

Answer 20

With valid consent, police may search anything

Requirements for valid consent:

1) Voluntarily and intelligently made

Police cannot falsely claim legal cause to search

Police have no obligation to inform suspects that they have a right to refuse consent

2) Person giving consent has authority to consent

–Authority to consent must be reasonably apparent

Scope of consent — can be limited by consenting party

Violation of scope renders the entire search non-consenting

Question 21

Third-Party Consent

Answer 21

allowed if there is authority to consent

Where multiple people have property rights (e.g., ownership, authorized use, occupancy), any single one can consent to the search of any area where they have authority to consent

A resident’s right to consent trumps a non-resident

E.g., if both a tenant and landlord are present, the tenant’s refusal trumps the landlord’s consent

Scope of consent is dictated by the person present with highest authority to consent

Refusal trumps consent — no consent if two present persons with equal right to possession disagree on consent

Question 22

Stop & Frisk

Answer 22

Police may detain a person for an investigative purpose if they have reasonable suspicion of criminal activity

Allowable scope of stop & frisk:
–Length — detention must be no longer than necessary to verify the suspicion

–Frisk — if police have reasonable suspicion the person is armed or dangerous, they may frisk for weapons

—Plain feel — if police have reasonable belief during the frisk that what they feel is a weapon or contraband, they may seize the suspected item

—-Officers cannot manipulate the item to develop reasonable belief — it must be plain touch only

—-Evidence validly seized is admissible

Stop vs. arrest — a stop is a brief detention, less than an arrest

But police may develop probable cause to arrest based on anything occurring or discovered during the stop and/or frisk

Question 23

Exigent Circumstances

Answer 23

If exigent circumstances exist, police can search or seize evidence without a warrant

Hot pursuit, evanescent evidence, and emergencies are forms of exigent circumstances justifying a warrantless search or seizure

Question 24

Exigent Circumstances: Hot Pursuit

Answer 24

Hot pursuit — while actively pursuing a fleeing felon, police can search for anything relating to the pursuit or can search for their own protection

Permissible scope is as broad as reasonably necessary to prevent suspect from escaping or resisting

Police can enter into a private dwelling after attempting arrest in a public place if they have probable cause

Question 25

Exigent Circumstances: Evanescent Evidence

Answer 25

police can search or seize evidence that could disappear if police were required to secure a warrant E.g., drugs that may be discarded, DNA evidence that may not last, blood tests & alcohol blood level (modern trend is to see this as unreasonable) Reasonableness judged by totality of the circumstances

Question 26

Exigent Circumstances: Emergency

Answer 26

warrantless searches are justified for emergencies that threaten health or safety if not immediately acted upon. Unless officers create the exigency by violating the 4th Amendment. E.g., police see someone injured or threatened with injury, bomb threats, need to find source of a food or drug contamination Whether an emergency exists is viewed objectively

Question 27

Community Caretaker Exception

Answer 27

PO may make warrantless searches if they come across criminal activity while they are performing community caretaker duties (duties not related to investigation of crime)

Question 28

Administrative searches

Answer 28

govt. agencies may conduct routine searches or inspections of highly-regulated businesses or industries E.g., building code inspection, inspections for food safety, airline passenger searches A warrant is required for inspections of private residences or commercial buildings Requires less particularity than standard warrants A general and neutral enforcement plan for the searches will suffice to validate the warrant

Question 29

Public School Searches

Answer 29

to conduct a search, school officials must have reasonable grounds to believe the search is necessary Less burdensome standard than probable cause School search is reasonable if: 1) Search offers a moderate chance of finding evidence of wrongdoing; 2) Procedure for searching is reasonably related to the objectives of the search; and 3) Search is not excessively intrusive Drug tests — random urinalysis is permissible for public school students participating in extracurricular activities

Question 30

Parolees

Answer 30

even without reasonable grounds for the search, at least as long as there is a statute authorizing such searches

Question 31

Government Employees

Answer 31

Searches of government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct

Question 32

Drug Testing

Answer 32

Drug tests of railroad employees involved in an accident Drug tests of persons seeking customs employment in positions connected to drug interdiction

Question 33

Border Searches

Answer 33

Border searches At borders, officials may conduct routine searches of persons and their effects (including vehicles) without a warrant, probable cause, or reasonable suspicion Border = any place where one can arrive in the U.S. from a foreign country (e.g., there is a “border” at Denver International Airport)

Question 34

Border Detention

Answer 34

Detentions — reasonable suspicion required Officials may detain a traveler at the border if they have reasonable suspicion she is smuggling contraband

Question 35

International Mail

Answer 35

Officials can open and inspect international mail if they have reasonable suspicion it contains contraband

Question 36

Immigration

Answer 36

Officials may raid a business to determine citizenship status of its employees

Question 37

5th Amendment

Answer 37

Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself also protects against double jeopardy

Question 38

Scope of 5th Amendment

Answer 38

Privilege only available for compelled testimonial or communicative evidence: Testimonial = verbal or otherwise communicative evidence Lineups and physical evidence — not testimonial - includes prelim hrg, grand jury hrg, former trial, and PO interrogation Compelled = elicited or induced Evidence produced from D’s free will is not compelled (e.g., D’s diary is not compelled) Lie detector tests, custodial interrogations, etc. are compelled and 5th Amend. privilege will apply Does not apply to companies — a legal entity (e.g., corporation, partnership, LLC) has no 5th Amend. privilege against self-incrimination

Question 39

6th Amendment

Answer 39

Once 6th Amend. right to counsel attaches, police may not elicit incriminating statements outside the presence of D’s counsel. It prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived their right to counsel. Also, Confrontation Clause comes from 6th Amendment Application — right attaches once charges have been filed Applies at all critical stages of a criminal prosecution after formal proceedings have begun Scope — right is offense-specific; police can question D about any other crime without violating D’s 6th Amend. rights

Question 40

Waiver

Answer 40

The Sixth Amendment right to counsel may be waived. The waiver must be knowing and voluntary. However, the waiver does not necessarily require the presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court.

Question 41

6th Amendment - Offense Specific

Answer 41

The Sixth Amendment is offense specific. Thus, even though a defendant’s Sixth Amendment rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda; see below). Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Question 42

Remedy for 6th Amendment Violations

Answer 42

At nontrial proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel. But if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without a showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal. A statement obtained in violation of a defendant’s Sixth Amendment right to counsel, while not admissible in the prosecution’s case-inchief, may be used to impeach the defendant’s contrary trial testimony.

Question 43

14th Amendment

Answer 43

The 14th Amend. Due Process Clause requires that the govt. prove guilt beyond a reasonable doubt in all criminal cases Due Process is about the procedures that gov has to follow before depriving someone of life, freedom, or property

Question 44

14th Amendment - Self-Incrimination

Answer 44

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion. Coercion can be physical and mental.

Question 45

Harmless Error Test

Answer 45

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion

Question 46

Miranda Rights

Answer 46

Those in custody must be informed of Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible Miranda warnings — police must inform accused that he has: 1) A right to remain silent; 2) Anything said can be used against him; 3) He has a right to the presence of an attorney; and 4) One will be appointed if he cannot afford one Substantial compliance in reading warnings is sufficient Failure to give warnings implicates 5th Amend., not 6th Amend

Question 47

Custodial Interrogation Defined

Answer 47

Miranda only applies when accused is in custody and interrogated. Two step analysis. Custody — accused is not free to leave Interrogation — statements by police likely to elicit incriminating responses *Unsolicited statements are not protected Note — routine questioning (e.g., during booking or a probation interview) is not considered interrogation

Question 48

Public safety exception to Miranda

Answer 48

police may interrogate suspects without giving Miranda warnings if necessary for public safety (e.g., D has info about a bomb that could go off in public)

Question 49

Invoking Miranda Rights

Answer 49

An accused may terminate an interrogation at any time by invoking his right to remain silent or by requesting counsel

Question 50

Invoking Right to Silence

Answer 50

police must cease all questions 1) Only the accused can re-initiate dialogue 2) Police may resume questions after a significant period concerning unrelated crimes, but D must be re-warned of Miranda rights *need to unequivocally invoke right

Question 51

Invoking 5th Amendment Right to Counsel

Answer 51

Once accused requests counsel unambiguously, police must cease all questions on any topic Note — different than 6th Amend. right to counsel, which is offense-specific and only attaches once charges are filed If accused initiates communication, interrogation is allowed. Right lasts as long as custody + 14 days after.

Question 52

Waiving Miranda Rights

Answer 52

valid Miranda waiver must be (1) knowingly and (2) voluntarily made Burden is on prosecution to prove this by preponderance of the evidence

Question 53

14th Amendment & Confessions

Answer 53

to be admissible, the 14th Amend. Due Process Clause requires that confessions be voluntary Voluntariness is assessed based on totality of circumstances, including suspect’s age, mental/physical condition, education, and the duration, manner, and setting of the interrogation

Question 54

Double Jeopardy

Answer 54

A D cannot be retried for the same offense once jeopardy has attached Arises when D is prosecuted with one crime and tried, then charged again based on the same offense Same offense — offenses are different if conviction for one offense requires proof of an element not included in the other offense Lesser included offense — once jeopardy attaches for the greater offense, D cannot be charged for a lesser included offense Examples: Same offense — e.g., first offense requires proof of A, B, & C; second offense requires proof of A & B; second offense is barred Different offense — e.g., first offense requires proof of A & B; second offense requires proof of A, C, & D

Question 55

Exceptions to Double Jeopardy

Answer 55

New evidence for greater offense becomes available D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery

Question 56

When jeopardy attaches

Answer 56

start of trial generally required E.g., does not attach for charges or grand jury proceedings alone Jury trial — attaches once jury is impanelled and sworn in Bench trial — attaches once first witness is sworn in Pleas — attaches once court accepts a plea agreement

Question 57

Exceptions to Fruit of Poisonous Tree Doctrine

Answer 57

illegally obtained evidence is admissible if govt. can “break the chain” between the illegal govt. conduct and the seized evidence; common ways to break the chain: 1) Independent source — govt. had an independent source for obtaining the evidence, i.e., independent from the original illegality 2) Inevitable discovery — govt. would have discovered illegally derived evidence even without illegal conduct 3) Attenuation — where evidence challenged is too remote and attenuated from unlawful search or seizure Includes intervening acts of free will by D (e.g., after initial illegality, D consciously leads police to the evidence)

Question 58

Remedy for exclusionary rule violation

Answer 58

harmless error review For admission of illegally-seized evidence to be upheld on appeal, govt. must show that it was harmless beyond a reasonable doubt

Question 59

Other Exceptions to Exclusionary Rule

Answer 59

1) Live witness testimony 2) In-court identifications 3) Out-of-court Identifications (unless unduly suggestive circumstances arranged by the police)

Question 60

Juries

Answer 60

6th Amend. provides right to a jury trial for all “serious offenses” D has a right to be present for all critical stages (e.g., jury selction) Serious offense = potential imprisonment for more than 6 months

Question 61

Jury Sizes and Selection Requirements

Answer 61

1) Jury size and unanimity — jury must contain at least 6 jurors 2) Unanimous verdict is required for all serious offenses 3) Juror composition requirements — the jury pool (“venire”) must be a representative cross-section of the community 4) The chosen jury does not have to be representative 5) Right to an impartial jury — D can question potential jurors on possible prejudices if relevant to the case (e.g., racial biases, feelings on the death penalty) 6) Jurors can be struck for cause if their views would prevent or substantially impair them from performing their duties 7) Peremptory challenges — parties may exercise peremptory challenges for any reason Exception — cannot be used to exclude jurors on account of race or gender (violates equal protection)

Question 62

Right to effective counsel

Answer 62

included in 6th Amend. right to counsel To establish ineffective assistance of counsel on appeal, D must show there is a reasonable probability that his trial’s outcome would have been different absent counsel’s deficient performance

Question 63

Conflicts of Interest - Joint Representation

Answer 63

Joint representation is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the defendant is entitled to automatic reversal.

Question 64

Right to Confront Witnesses

Answer 64

6th Amend. gives D the right to confront adverse witnesses Confrontation — D has a right to have adverse witnesses testify in-person and subject to cross-examination In-person testimony not required if: 1) Exclusion is necessary for public policy; and 2) Reliability of the testimony is otherwise assured D can be removed from court for disruptive behavior

Question 65

Co-Defendant Confessions

Answer 65

Co-defendant confessions — a co-D’s confession implicating D is inadmissible against D at a joint jury trial (OK at bench trial) Exceptions — confession of a co-D is admissible if either: a) Confessing co-D testifies subject to cross-examination, b) Ds have separate trials, c) Confession is redacted so that all portions referring to the co-D are eliminated, or d) Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively

Question 66

Hearsay Exception to Confrontation Clause

Answer 66

prior testimonial statements of unavailable witnesses are only admissible if D had the opportunity to cross-examine the declarant when the statement was made

Question 67

Forfeiture by Wrongdoing

Answer 67

A defendant can be held to have forfeited a Confrontation Clause claim by wrongdoing. However, the Court will not find a forfeiture by wrongdoing unless the wrongdoing was intended to keep the witness from testifying

Question 68

Double Jeopardy Exceptions Permitting Retrial

Answer 68

1) Hung jury 2) Mistrial due to manifest necessity D may be retried when there is a manifest necessity to abort the original trial (e.g., D is too ill to continue) or if it is discontinued at D’s request on grounds not constituting an acquittal 3) Retrial after a successful appeal by D D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict 4) D breaches a plea bargain agreement 5) Separate sovereigns D can be tried for the same crime in different states D can be tried for the same crime in fed. and state court