Criminal Procedure

Question 1

What do constitutional protections apply to?

Answer 1

Only government actions with two important exceptions:
1. private persons acting as government agents and
2. defense counsel for purposes of 6A with respecto to effective assistance of counsel

Question 2

When does a seizure occur?

Answer 2

When an officer, by means of physical contact or show of authority, intentionally terminates or restrains the person’s freedom of movement.

Question 3

What is the test for if a seizure has occurred?

Answer 3

Whether a reasonable person would feel free to disregard the officer.

Question 4

What is the standard for a stop and frisk or “terry” stop?

Answer 4

An officer has reasonable suspicion, based on articulable facts, to believe the suspect is or is about to be engaged in criminal behavior.

An officer’s reasonable mistake of law can give rise to reasonable suscpicion.

Question 5

What can an officer do during a Terry stop?

Answer 5

They can pat down a detainee for weapons, but they cannot frisk for evidence.

If the pat down reveals shapes of obvious contraband, the officer can seize those objects.

Question 6

What happens is a stop is not based on adequate suspicion?

Answer 6

If the initial stop is unlawful, but the officer develops basis for a lawful arrest during the stop, then evidence seized can be used at trial.

If the intial sop is unlawful, and no basis devleops to make a lawful arrest, than the evidence seized during the arrest cannot be used at trial.

Question 7

What standard is required for traffic stops?

Answer 7

Resonable suspicion.

Question 8

What can an officer do after making a lawful traffic stop?

Answer 8

They can pat down the occupant for weapons if they have reasonable suspicion the person has a weapon.

Question 9

What standard is required for arrests?

Answer 9

Probable cause to believe that the arrested indidividual has committed some crime.

Question 10

What is a pretext arrest?

Answer 10

As long as the police have probable cause to believe an individual committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is probable cause or for some other crime.

Question 11

What is required for an arrest warrant?

Answer 11

1. issued by a neutral and detached magistrate;
2. baed on a finding of probable cause to believe that the named individual has committed a particular crime; and
3. name the person and identify the offense.

Question 12

What does an arrest warrant do once issued?

Answer 12

It allows officers to enter an individual’s home to arrest that individual.

Question 13

What is required for an officer to be able to enter a third party’s home or business to arrest and individual.

Answer 13

A search warrant for the premise.

Question 14

When can an arrest occur inside a dwelling without a warrant?

Answer 14

1. there are exigent circumstnaces (e.g., felony hot pursuit or danger to others); or
2. there is consent to enter

Question 15

When can an officer do a warrantless arrest?

Answer 15

In a public place, either for a crime committed in the officer’s presence or based on probable cause to believe the individual committed a felony.

If the crime was not committed in the officer’s presence, the officer can only make an arrest for a felony.

Question 16

What happens if an arrest is illegal?

Answer 16

It might result in the exclusion of evidence discovered during the arrest.

Question 17

What searches incident to an arrest can an officer do during a lawful arrest?

Answer 17

Officers can make a contemporaneous search of the person arrested and the immediate surrounding area to:
1. protect officers from weapons or other dangers; and
2. to prevent the destruction or concealment of evidence.

Question 18

What is a “search”?

Answer 18

A search occurs when government conduct violates a reasonable epectation of privacy?

Question 19

What is “government conduct” in terms of a “search”?

Answer 19

It can occur with physical intrusion upon private property or without a physical intrusion (using some types of technology constitutes a search).

Question 20

Where do people have a reasonaple expectation of privacy against the government?

Answer 20

1. houses
2. hotel rooms
3. offices
4. luggage
5. curtilage (e..g yard)
6. your car (although more limited)

Question 21

Where do we not have a reasonable expectation of privacy against the government?

Answer 21

1. public streets
2. open fields (even on private property)
3. garbage cans left on the street
4. abandoned property

Question 22

What is required for the government to conduct a search where there is a reasoanble expectation of privacy?

Answer 22

A search warrant.

Question 23

What is required for a search warrant?

Answer 23

1. be issued by a neutral magistarte
2. be based on probable cause to believe that the items sought are fruits, instrumentalities, or evidence of a crime
3. describe the property and place to be searched with particularity.

Question 24

What happens if a search warrant is invalid?

Answer 24

The items seized pursuant to the warrant wil be excluded from the prosecution’s case in chief.

Question 25

What is required to obtain a wiretapping search warrant?

Answer 25

There must be probable cause and a warrant which must: 1. specifically indetify whose conversations are to be intercepted 2. include an end date for the warrant 3. perform minimization

Question 26

What are the expections to the warrant requirement?

Answer 26

"ESCAPES" 1. exigent circumstnaces 2. search incident to arrest 3. consent 4. automobiles 5. plain view 6. evidence obtained from administrative searches 6. stop and frisk

Question 27

What are the two types of administrative searches?

Answer 27

1. Administrative warrants (e.g., fire or health inspections of a building) 2. Warrantless administrative searches - used to ensure compliance with various administrative regulations (airplane boarding areas, international borders, highly regulated industreis, students in public schools special-need searches, roadblocks)

Question 28

What does the fifth amendment say about interrogations?

Answer 28

It provides that no person shall be compelled in any criminal case to be a witness against himself.

Question 29

What is the scope of the fifth amentment privilege?

Answer 29

- It applies to natural persons, not corporations or unions. - Applies to testmonial evidence, not physical evidence - Applies to testimony that would be a link in the chain leading to prsecution or conviction. As long as there is reason to beleive the testimony might lead to future criminal prosecution.

Question 30

What statements are protected under the fifth amendement?

Answer 30

Statements made by an individual to a government.

Question 31

When is a Miranda warning required?

Answer 31

When a person being questioned has been arrested or is otherwise not free to leave.

Question 32

What are the Miranda warnings?

Answer 32

Before conducting sutodial interrogations, police must inform the supsect: 1. they have hte right to remain silent 2. any statement they make can be used against them in court 3. they have a right to consult an attorney and to have hte attorney present during questioning and 4. they have the right to have an attorney appointed if they cannot afford one. They must also ask whether the defendant udnerstands these rights.

Question 33

How do you invoke the right to remain silent?

Answer 33

Affirmatively.

Question 34

What happens when a defendant invokes the right to remain silent?

Answer 34

The interrogation must stop, but it can be resumed after a substantial period of time has passed and the Miranda warnings are given again.

Question 35

How do you inovke the right to counsel.

Answer 35

Affirmatively.

Question 36

What happens after the right to counsel is invoked/

Answer 36

All questioning must stop until either; 1. the lawyer is present or 2. the defendant affirmately initiates contact with police.Wh

Question 37

What is the Public Safety Exception?

Answer 37

When public safety is at risk, the police do not have to give Miranda warnings before questioing.

Question 38

What are the consequences of statements obtained involuntarily

Answer 38

The involuntarily obtained statement is never admissible against a defendant.

Question 39

What are the consequences of statements obtained in violation of Miranda rights

Answer 39

They are inadmissible in the prosecution's case in chief, but may be admissible to impeach the defendant to challenge his creditibility.

Question 40

What does the sixth amendment protect?

Answer 40

The sixth amendment explicitly provides a criminal defendant with "assistnace of counsel for his defense."

Question 41

How is the sixth amendment right invoked?

Answer 41

It automatically attaches once there has been an indictment, information, or other formal charges. And it exists unless a defendant knowingly or intelligently waives teh right.

Question 42

What charges does the Sixth Amendment right apply to?

Answer 42

It is offense-specific. A criminal defendant has a Sixth Amendment right to counsel only with regard to offenses for which he has actually been chared (and any lesser-included offenses).

Question 43

When does hte Sixth Amendment Right to Counsel apply?

Answer 43

It applies to all felony prosecutions and to any misdemeanor prosecutions for which jail time or suspended jail sentence is imposed. It applies at all critical stages of prosecution. (evidentiary hearings, post-indictment lineups, post-indictment interogations, and all parts of hte trial process.)

Question 44

What rights to defendants have for photo arrays?

Answer 44

Neither the defendant nor his lawyer has the right to be present, but police must turn over the array to the defendant.

Question 45

What rights does a defendant have for a pre-indictment line up?

Answer 45

Defendant does not have a right to counsel

Question 46

What rights does a defendant have for a post-indictment line up?

Answer 46

Defendant has a right to have counsel present. If the right is violated, then evidence that the witness identified the defendant at the lineup must be excluded.

Question 47

What is the exclusionary rule?

Answer 47

Illegally obtained evidence, either physical evidence obtained by an illegal search or a statement obtained through an illegal interrogation, is inadmisible at the criminal trial of the person whose rights were violated. Evidence obtained in violation of the 4th, 5th, or 6th amendments cannot be introduced at trial to prove a defendant's guilt.

Question 48

When does the exclusionary rule apply?

Answer 48

Only at trial, not at pre-trial proceedings (i.e. grand jury proceedings)

Question 49

Who has standing to invoke the exclusionary rule.

Answer 49

Only the individual whose rights were violated. With the exception that if a driver of a car is arrested without probable cause, passengers are also deemed to have been seized as well, so they can challenge teh constitutionality of the stop.

Question 50

What is fruit of the poisonous tree?

Answer 50

The exclusionary rule also applies to evidence obtained as a result of the initial violation.

Question 51

What are the exceptions to the exclusionary rule?

Answer 51

1. Knock and Announce 2. Inevitable Discovery 3. independent Source 4. Attenuation in the Causal Chain 5. Good Faith 6.1/2 Negligence

Question 52

When does the good faith exception to the exclusionary rule apply?

Answer 52

It applies to officers who rely on either: 1. an existing law that was later declared unconstitutional, or 2. A warrant that, while facially valid, is later found to be defective.

Question 53

When can officers not rely on a warrant in good faith?

Answer 53

If the warrant was obtained by fraud. If the warrant was facially defective. or If the magistrate wholly abandoned their judicial role.

Question 54

What is the 1/2 negligence exception to the exclusionary rule?

Answer 54

Isolated negligence by law enforcement personnel does not necessarily trigger the exclusionary rule. Instead, teh conduct must be sufficiently deliberate so that the exclusion could meaningfully deter it.

Question 55

What is the rule for initiation of federal felony charges?

Answer 55

Under the Fifth Amendment Presentment Clause, all federal felony charges must be intiated by indictment by a grand jury unless the defendant waives the indictment. An indictment requires probable cause to believe the defendant committed the crimes charged.

Question 56

Has the Fifth Amendment Presentment Clause been incorporated to the states?

Answer 56

No. States can choose whether to proceed by grand jury indictment or by information. If proceeding by information there must be a preliminary hearing before a neutral judge to determine whether there is probable cause.

Question 57

What evidence can grand jurys consider?

Answer 57

Evidence illegally obtained and hearsay evidence.

Question 58

What is the test for whether a defendant is competent to stand trial?

Answer 58

Whether hte defendant comprehends the nature of the proceedings against him and can assist his lawyer in defending teh case. If the defendant is competent to stand trial, he is also competent to pelad guilty and waive the right to trial.

Question 59

What happens when a defendant pleads guilty?

Answer 59

He waives various trial rights, such as the right to put the prosecution to its proof, to confrom and produce witnesses, to trial by jury, to challenge the introduction of evidence, to appeal if there is a conviction.

Question 60

What is required for a guilty plea to be valid?

Answer 60

The defendant must knowingly and intelligently waive their rights through plea allocution.

Question 61

What does the Eighth Amendment say about bail?

Answer 61

It forbids the setting of excessive bail, but does not state outright that bail must be offered pending trial.

Question 62

What is the general rule about bail?

Answer 62

Bail is availiable unless the defendant poses either a flight risk or a danger to the community. There is a presumption in favor of bail.

Question 63

What is the Sixth Amendment's right to jury trial?

Answer 63

A defendant has a right to jury trial for all serious offenses, for which the authorized punishment is more than six months.

Question 64

What is the federal requirement for jury size?

Answer 64

Twelve members and they must decide the case unanimously.

Question 65

What is the state requirement for jury size?

Answer 65

Six or more in a criminal case, and they must decide the trial unanimously.

Question 66

What is required for a venire or jury pool?

Answer 66

It must represent a fair cross-section of the commuinty from which no distinctive group is excluded.

Question 67

What are the two ways to remove potential jurors during the voir dire process?

Answer 67

1. challenges for cause 2. preemptory challenges

Question 68

What are challenges for cause?

Answer 68

They are used to ensure an impartial jury. Jurors can be removed for cause when they reveal something that will prevent them from being impartial and deliberating fairly. There is no limit to the number of challenges for cause.

Question 69

What are peremptory challenges?

Answer 69

Challenges that can be made for any reason, including huches.

Question 70

What are the limits to peremptroy challenges?

Answer 70

Neither side can challenge jurors on the basis of race or sex. And each side is statutorily limited in the number of peremptory challenges.

Question 71

What are the two ways a defendants right to a speedy trial is protected.

Answer 71

1. statutes of limitations 2. constitutional provisions

Question 72

When do statutes of limitations being running.

Answer 72

Normally when the crime occurs. But for continuing offenses, they begin running when the offense ends.

Question 73

What are the two consitutional provisions that protect against delay of a speedy trial?

Answer 73

1. The Due Process Clause protects against pre-accusation delay. But its relatively toothless as long as the SOL has not run. 2. The Speedy Trial Clause of the Sixth Amendment protects defendants against delay that occurs between the time of arrest or indictment (wichever comes first) and the time of trial.

Question 74

What four factors does a court look at during a Speedy Trial Clause claim?

Answer 74

1. length of the delay 2. reason for the delay 3. whether the defendant asserted their right to a speedy trial; and 4. risk of prejudice to the defendant

Question 75

Where do Public Trial rights come from?

Answer 75

The Sixth Amendment and the First Amendment taken togther.

Question 76

What does the Confrontation Clause of the Sixth Amendment guarantee?

Answer 76

The defendants 1. right to confront the witnesses against them; and 2. the right to compulsory process to produce their own witnessesW

Question 77

What is the Crawford Doctrine?

Answer 77

If a statemetn is testimonial (i.e. made under circumstances which would lead a reasonable person to believe the statement would later be used at trial), the Sixth Amendment bards admission of the statement if: 1. the declarant is unavailable and 2. the defendant had no prior opportunity to cross-examine the witness.

Question 78

What is the Bruton Doctrine?

Answer 78

A defendant's own statemetns are always admissible agaisnt him, even if he does not testify at trial. If there are co-defendants, a non-testifying co-defendant's statements are not admissible against hte other defendant.

Question 79

What is the requirement for judges during trial?

Answer 79

The Due Process Clause requires that judges possess neither actual nor apparent bias. Actual bias consists of interestst hat would impair the judge's impartiality.

Question 80

What are the four prosecutorial duties?

Answer 80

1. Brady Doctrine 2. A prosecutor may not knowingly present false testimony. 3. A prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel. 4. A prosecutor may not comment on a defendant's failure to testify at trial or maek unfair remarks about the defendant to the jury. BUT they can comment on a defendants silence before his Miranda rights attached.

Question 81

What is the Brady Doctrine?

Answer 81

Prosecutors must turn over all material exculpatory evidence tot he defensive. - evidence that tends to show the defendant is not guilty of the crimes charged - evidence that would enable the defense to impeach the credibility of prosecution witnesses

Question 82

What is the result of prosecutorial misconduct?

Answer 82

Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a mistrial or reversal of a convication. These claims are subject to the harmless error rule.

Question 83

What must a judge do if joint representation might lead to a conflict of interest.

Answer 83

1. warn the defendants taht joint representation is a risk 2. given them the opportunity to get separate counsel 3. if they choose not to, get an affirmative waiver in which the defendants acknowledge there is and conflict and they would prefer to go forward with joint representation.

Question 84

What is the Strickland test for effective assistance of counsel?

Answer 84

It is a two prong test assessing whether a defendant was denied effective assistnace. 1. Did the defense counsel's performance fall below the wide range of reasonable conduct that lawyers might enage in? 2. If yes, is there a reasonable possibility that, had counsel performed effectively, the result would have been different? - if they went to trial --> must show reasonable probability they wouldn't have been convicted - if guilty plea --> must show would nto have pled guilty if lawyer hadn't given bad advice or already shown he was prejudicie.