Criminal Procedure Flashcards
(104 cards)
1
Q
What is considered government conduct?
A
Includes:
* Publicly paid police force
* Private individuals acting at direction of police
Does not include:
* Privately paid police (e.g. security guards) unless deputized with power to arrest
2
Q
Fourth Amendment
A
People have a right to be secure in their persons against unreasonable searches and seizures
3
Q
Fourth Amendment
“Seizure”
A
Given the totality of the circumstances, the average person would not feel free to decline an officer’s request or to terminate the encounter
Requires:
* Physical application of force by the police officer, or
* Show of force and a submission to that show of force
4
Q
Fourth Amendment
Arrest
A
- Unreasonable to arrest for misdemeanor without a warrant unless committed in officer’s presence
- Reasonable to arrest for felony if officer has probable cause to believe felony occurred and person committed felony
5
Q
Probable cause
A
Knowledge of reasonably trustworthy facts and circumstances that would lead a reasonably prudent person to believe the suspect has committed the crime
6
Q
Fourth Amendment
“Search”
A
- Government intrusion into an area in which person has a reasonable expectation of privacy
- No expectation of privacy if hold something out to the public
7
Q
Fourth Amendment
When is there no privacy interest?
A
- Smells
- Sounds
- Handwriting
- Car paint
- Location of car on public street or driveway (but cannot install GPS without warrant)
- Records held by third party
- Anything seen across open fields
- Anything seen from flying over public airspace
- Garbage set out on the curb for collection
8
Q
Fourth Amendment
Is there a privacy interest in CSLI?
A
Yes
9
Q
Fourth Amendment
When does a D have standing?
A
D’s own expectation of privacy must have been violated, not someone else’s
Always have standing:
* Owner of premises
* Live on the premises
* Invited overnight guests
10
Q
What are the requirements for a search warrant?
A
- Issued by neutral and detached magistrate
- Based on probable cause
- Describe with particularity the area to be searched and items to be seized
11
Q
What probable cause is required for a search warrant?
A
Fair probability that contraband or evidence of a crime will be found in the area searched
12
Q
Search warrant
When is informant’s information sufficient to support search warrant?
A
- Sufficiency determined by totality of circumstances considering informant’s credibility and basis for their information
- Cannot be based entirely on an anonymous tip
13
Q
Search warrant
Do the items in a search warrant need to be on the premises at the time the warrant was issued?
A
No, can be anticipatory
14
Q
How must search warrants be executed?
A
- Conducted by police alone, no third parties allowed unless identifying stolen property
- Conducted without reasonable delay
- Knock and announce presence and leave reasonable time
- Must be refused entry before using force
- Exception: no knocking requirement if doing so would be futile, dangerous, or lead to destruction of evidence
15
Q
Exception to warrant requirement
Search incident to lawful arrest
A
Person or any area the person would be able to reach after lawful arrest
16
Q
Exception to warrant requirement
Search incident to lawful arrest when D arrested in car
A
If arrested while in the car, police may search interior (excluding trunk) if:
* Arrestee is unsecured and may still gain access to the car
* Police reasonably believe there will be evidence of the crime for which person was arrested
17
Q
Exception to warrant requirement
Automobile exception
A
- May stop vehicle they reasonably suspect violated the law
- May search interior (including trunk) if probable cause to believe car contains evidence of a crime
- May search containers they have probable cause to look, including passenger’s belongings
- May order driver and passengers out of vehicle
- May tow car to safe place and search later
18
Q
Exception to warrant requirement
Are roadblocks constitutional?
A
Constitutional:
* Purpose is something other than seeking incriminating information about driver stopped
* Informational roadblocks to generally inquire about a prior crime
* Checkpoint roadblocks (e.g. DUI checkpoint) are constitutional if neutrally applied
19
Q
Exception to warrant requirement
Police view exception
A
Police may conduct warrantless search if:
* Legitimately on the premises
* See an item in plain view
* Readily apparent that the item is contraband, or evidence, fruits, or instrumentalities of crime
20
Q
Exception to warrant requirement
Consent
A
- Police may conduct warrantless search if have voluntary consent
- “Voluntary”: no coercion, but suspect does not need to be informed that they have a right to withhold consent or of the specific items being sought
- Search limited to scope of consent
- Not valid if given in response to search warrant which ends up being invalid
21
Q
Exception to warrant requirement
Who can consent to a search?
A
- Anyone with apparent authority
- Example: person using friend’s car
- If person did not actually have authority, search is valid if it was reasonable for officer to believe they had authority to consent
22
Q
Exception to warrant requirement
Who can consent to a search when there are multiple occupants?
A
- No consent if one occupant consents and a co-occupant objects
- Consent if objecting co-occupant is removed from property for unrelated reason
23
Q
A
24
Q
Exception to warrant requirement
Terry stop and frisk
A
- Police may stop person without warrant or probable cause if officer has articulable and reasonable suspicion of criminal activity
- Officer may frisk person if reasonably believes suspect is armed and dangerous
- During a frisk, if an officer reasonably suspects an item is a weapon or contraband by its plain feel they can grab it
25
# Exception to warrant requirement
Terry stop and frisk - automobile stops
If officer reasonably believes driver or passenger may be armed and dangerous, officer may frisk suspect and search vehicle in areas where weapon may be placed
26
# Exception to warrant requirement
Hot pursuit
* Police may make warrantless search or seizure if pursuing fleeing felon
* Must be less than 15 minutes from felon
* Search extends to whatever is reasonably necessary to prevent suspect from resisting or escaping
27
# Exception to warrant requirement
When can police enter a private home in hot pursuit?
* Cannot follow misdemeanor suspect unless law enforcement emergency
* Can follow felony suspect if have probable cause for warrantless arrest in public, attempt to make arrest, but suspect flees
28
# Exception to warrant requirement
Exigent circumstances
* May enter home if necessary to prevent destruction of evidence or if believe someone on the premises is in imminent danger
* Exception: officers created the exigency by violating or threatening to violate Fourth Amendment
29
# Exception to warrant requirement
Evanescent evidence
Officers may make a warrantless search or seizure if the evidence will likely disappear before able to get a warrant
* Example: scrapings under nails
* Exception: warrant required for blood sample after DUI arrest if practical
30
# Exception to warrant requirement
Emergency aid
Police may perform warrantless search or seizure if there is an emergency that would threaten health or safety if the police do not immediately act
31
# Exception to warrant requirement
Community caretaking
* Police may make warrantless searches if they come across criminal activity while performing community caretaking duties (duties not related to investigation of a crime)
* Does not include making warrantless entry into a private home
32
# Exception to warrant requirement
Police inventory
* Warrants not required for police inventory searches, i.e. searches of prisoners entering prison
* Includes entirety of impounded vehicle and any containers within
* Must be part of a department standard or routine
33
# Exception to warrant requirement
Public schools
* Warrants and probable cause not required for school officials to search students’ backpacks and lockers
* Students in extracurriculars can be required to submit to drug testing, including school dances
34
# Exception to warrant requirement
When is it reasonable for public school officials to search students?
* Offers a moderate chance of finding evidence of wrongdoing,
* Measures used to perform the search are reasonably related to objective of search, and
* Search is not excessively intrusive given the nature of the infraction, and the age and sex of the student
35
# Exception to warrant requirement
Parole
Warrantless searches of parolee’s person and home permitted
36
# Exception to warrant requirement
Government employees
Warrantless searches of government employees’ desks and file cabinets permitted if:
* Search is reasonable in scope, and
* Non-investigatory work-related need or reasonable suspicion of work-related misconduct
37
# Exception to warrant requirement
Drug testing
* Government can require drug testing without probable cause or individualized suspicion when justified by a special need beyond general interest of law enforcement
* Example: drug testing railroad workers after accident
38
# Exception to warrant requirement
Border patrol
* Searches at the border do not require warrant, probable cause, or reasonable suspicion
* May search international mail if there is reasonable cause to believe the mail contains contraband
39
# Exception to warrant requirement
Safety inspections
* Government inspectors can conduct safety inspections by a warrant issued by showing a need for a general and neutral enforcement plan
* Probable cause that a violation has already occurred is not necessary
40
Wiretapping and eavesdropping
Always require a warrant
Exceptions:
* Unreliable ear: speaker assumes risk the other person consents to government monitoring or is an informer
* Uninvited ear: speaker has no Fourth Amendment claim if they make no attempt to keep conversation private
41
What are the steps to analyze the constitutionality of a search or seizure?
1. Is there government conduct?
2. Does D have standing?
3. Was there a valid warrant?
4. Does the good faith defense save the warrant?
5. Does an exception to the warrant requirement apply?
42
# Confessions
Voluntary requirement
* Due process requires confessions to be voluntary to be admissible
* Confessions only involuntary if obtained through coercion
* Harmless error test applies
43
# Confessions
When is a confession voluntary?
Based on the totality of the circumstances, given:
* Suspect's age
* Suspect's education
* Suspect's mental and physical condition
* Setting of interrogation
* Duration of interrogation
* Manner of interrogation
44
# Confession
When is a confession involuntary?
Does not require physical torture, mental coercion sufficient
45
Is a confession involuntary if it results from a mental condition that impacts free will?
Not automatically involuntary
46
When are Miranda warnings required?
Whenever person is subjected to custodial interrogation by someone known to be a police officer
47
# Miranda warnings
"Custodial"
Test:
* Would a reasonable person under the circumstances feel free to terminate the interrogation and leave?
* Does the relevant environment present the same inherently coercive pressures as stationhouse questioning?
48
# Miranda warnings
What is considered custodial?
Custodial:
* Approached on sidewalk and told not to leave, and cuffed when try to leave
Not custodial:
* Permit officers to enter home
* Traffic stop
* Approached on sidewalk and asked if can answer questions
49
# Miranda warnings
"Interrogation"
* Any words or actions on the part of police that they should know are reasonably likely to elicit an incriminating response from the suspect
* Does not include spontaneous, unsolicited confessions
50
# Miranda warnings
What is considered an interrogation?
Interrogation:
* Driving suspect through crime scene repeatedly
Not interrogation:
* Conversation with undercover informant
* Routine booking questions
51
What are the Miranda warnings?
* Right to remain silent
* Right to an attorney
* If cannot afford an attorney, one will be provided at not charge
* Anything you say can be used against you in court
Warnings do not need to be verbatim
52
Waiver of Miranda rights
Knowingly and voluntary waiver of rights is valid
53
# Miranda warnings
Right to remain silent
* Suspect must state in an explicit, unambiguous, and unequivocal manner that they wish to remain silent to assert right
* All questioning related to that specific crime must stop
* Must scrupulously honor request by not badgering detainee
54
# Miranda warnings
Right to counsel
* Suspect must invoke in unambiguous and specific manner
* “I think I should get an attorney” is insufficient
* All questioning must stop until attorney is present or suspect initiates
* Cannot ask about this or any other crime
* Prohibition on questioning lasts as long as detainee is in custody + 14 days
55
Is an un-Mirandized confession admissible?
* Inadmissible to prove D's guilt, but may be used for impeachment if no compulsion
* Public safety exception: un-Mirandized confession admissible if interrogation was reasonably prompted by concern for public safety
56
Is pre-trial identification admissible?
* Unconstitutional and inadmissible if unnecessarily suggestive and so substantially likely to produce misidentification that denies due process of law
* Witness may make in-court identification if identification has an independent source (e.g. victim or witness had adequate opportunity to observe D at the time of the crime)
57
Exclusionary rule
Evidence that is obtained in violation of D’s constitutional rights is inadmissible
58
Fruit of the poisonous tree doctrine
Exclusionary rule extends to evidence derived from an unlawful search or seizure
59
# Exception to exclusionary rule
Independent source rule
Admissible if prosecution can show evidence was obtained from a source independent of original illegality
60
# Exception to exclusionary rule
Inevitable disclosure
Police would have discovered evidence absent unconstitutional conduct
61
# Exception to exclusionary rule
Attenuation
Remote connection between unconstitutional conduct and evidence, or intervening circumstances break that chain (including D's intervening acts of free will)
62
# Exception to exclusionary rule
Good faith
Police act in good faith reliance on arrest warrant, search warrant, or law, that turns out to be an error
63
# Exceptions to exclusionary rule
Types of evidence
* Live witness testimony
* In-court identifications (if witness has independent basis outside jailhouse identification)
* Out-of-court identifications (unless unduly suggestive circumstances arranged by police)
64
# Exception to warrant requirement
Types of proceedings
* Grand jury (unless obtained in violation of federal wiretapping statute)
* Parole revocation
* Civil
65
# Exceptions to exclusionary rule
Types of violations
State law
Agency regulations
66
# Exception to exclusionary rule
Un-Mirandized statement
Un-Mirandized statement itself is inadmissible, but fruits derived from statement are admissible
67
# Exception to exclusionary rule
Factors to assess attenuation
* Temporal proximity
* Intervening circumstances
* Purpose and flagrancy of police misconduct
68
# Exception to exclusionary rule
What are the exception to the good faith exception?
* Warrant is so defective (lacking in particularity or probable cause) that it was not reasonable for officer to act on it
* Officer lied or misled magistrate to get warrant
* Magistrate was biased and wholly abandoned neutrality
69
Harmless error test
* Conviction will be upheld even if unconstitutionally gathered evidence was admitted at trial if the conviction would have resulted despite the improper evidence
* Government has burden of proving beyond reasonable doubt that error was harmless
* Applies to improperly admitted evidence and improper comments made by prosecution
70
Grand jury proceedings
* Conducted in secret
* D does not have a right to appear or present witnesses
* Witness subpoenaed to testify does not have a right to Miranda warnings or counsel
* May base indictment on evidence that would not be admissible at trial
* Prosecution not required to disclose exculpatory information
71
Brady violation
Prosecution’s failure to disclose material, exculpatory evidence is grounds for reversing conviction if:
* Evidence is favorable to the defendant, and
* Reasonable probability that the result would have been different had the information been disclosed
72
Right to a jury trial
* Right to a jury trial for all serious offenses (possibility of more than 6 months' incarceration)
* Must have at least six jurors
* Verdict must be unanimous
73
Right to jury of peers
* “Peers”: selected from pool of people from a representative cross-section of community
* Same rules for jury selection as civil trial
* For cause challenge: juror’s views would prevent or substantially impair performance of duties
74
Sixth Amendment
* Right to effective assistance of counsel in all criminal prosecutions
* D has right to confront witnesses against them at trial
75
# Sixth Amendment
When does the right to assistance of counsel attach?
When formal charges are filed against D, including all critical stages:
* Post-indictment interrogations
* Preliminary hearings to determine probable cause
* Arraignments
* Post-charge lineups
* Guilty pleas and sentencing
* Felony trials
76
# Sixth Amendment
When is there no right to counsel?
* Blood sampling
* Pre-charge or investigative lineup
* Photo IDs
* Preliminary hearings to determine probable cause to detain
* Post-conviction proceedings
77
# Sixth Amendment
Waiver of right to counsel at trial
* Waiver must be knowing and intelligent
* D is competent and has rational and factual understanding of proceeding
78
# Sixth Amendment
What happens if the right to counsel is violated?
* Automatic reversal of conviction if violated at trial
* Harmless error test applied if violated at non-trial stage
79
# Sixth Amendment
"Effective" assistance of counsel
Conviction may be reversed if:
* Counsel had deficient performance, and
* But for deficiency, there is a reasonable probability that there would have been different result
Must specify particular errors
80
# Sixth Amendment
What are not grounds for reversal of conviction based on lack of effective assistance of counsel?
* Inexperience
* Lack of preparation
* Gravity of charges
* Complexity of defenses
* Accessibility of witnesses
81
# Sixth Amendment
When does joint representation violate the right to counsel?
* Conflict of interest between co-Ds
* Automatic reversal if conflict is present, the lawyer asks judge to appoint separate counsel and judge refuses
* If attorney fails to bring up conflict of interest in a timely manner, D must show that the attorney actively represented conflicting interests
82
# Sixth Amendment
Is the right to confrontation absolute?
No, exceptions include:
* Preventing confrontation serves important public purpose and reliability of witness testimony is otherwise assured, e.g. protect child from testifying against abuser
* D may be removed from courtroom if disruptive
* D may voluntarily leave courtroom
* Forfeit if D does something to keep witness from testifying
83
# Confrontation clause
When are prior testimonial statements admissible?
Declarant is unavailable and had an opportunity to cross-examine when statement was made
84
# Confrontation clause
What are testimonial statements?
Testimonial:
* Preliminary hearing
* Grand jury hearing
* Former trial
* Police interrogation conducted to establish or prove past acts
Non-testimonial:
* Statements to inviduals not principally charged with uncoveirng and proscuting crimes
* Calls made to 911 operator
* Handwriting samples
85
# Confrontation clause
Are confessions implicating a co-D admissible?
No, unless D takes the stand and parts referring to non-confessing D are exised
86
What is the burden of proof in criminal cases?
* Prosecution must prove every element beyond a reasonable doubt
* Affirmative defenses shift burden of proof to D
87
Fifth Amendment
Individuals may not be compelled to make self-incriminating statements
88
# Fifth Amendment
Who may assert the privilege against self-incrimination?
* Anyone at any proceeding in which testimony they give might incriminate them
* Must assert privilege the first time question is asked, or will have waived privilege for all subsequent criminal prosecutions
89
# Fifth Amendment
Does the privlege against self-incrimination apply to business entities?
No
90
# Fifth Amendment
What evidence does the privilge against self-incrimination apply to?
Testimony only, not real or physical evidence
* Can compel production of blood, voice, handwriting, and hair sample
* Can compel arrestee to give DNA cheek swab after arrest for serious crime
* Does not apply to past communications
91
Can the prosecution comment on D's decision to remain silent?
No, not allowed to comment on D’s decision not to testify or choice to remain silent after Miranda warnings
Exceptions:
* May comment if defense asserts D was not allowed to explain his side of the story
* Silence may be used against D before Miranda warnings
92
# Fifth Amendment
Does the privilege against self-incrimination extend to other people?
No
93
# Fifth Amendment
When may a witness be compelled to answer self-incriminating questions?
* Granted adequate immunity from prosecution
* No possibility of incrimination, e.g. statute of limitations has run
* D takes the stand
94
What are the factors to determine if D's right to speedy trial has been violated?
* Length of delay
* Reason for delay
* Whether D asserted right
* Prejudice to D
95
What is the remedy for violation of right to speedy trial?
* Dismissal with prejudice
* No relief for period between dismissal of chargers and later refiling
96
# Fifth Amendment
Double jeopardy clause
D may not be subject to same trial or punishment more than once
97
# Fifth Amendment
Does double jeopardy apply to civil proceedings?
* No, may be tried civilly and criminally for same offense
* Example: convicted of larceny for stealing government bonds, government can then file a civil suit to recover money
98
# Fifth Amendment
Does double jeopardy apply to criminal trials by different sovereigns?
* Only applies to criminal trials by the same sovereigns
* Can be prosecuted for same offense by different states and the federal government
* Cities within the same state are not separate sovereigns
99
# Fifth Amendment
How does double jeopardy when D has committed multiple crimes?
* Blockburger: two crimes do not constitute the same offense when each crime has an element the other does not (i.e. is not a lesser included offense)
* Double jeopardy bars retrial of lesser-included offense when there has already been a trial for the greater offense, and vice versa
100
# Fifth Amendment
When does double jeopardy attach?
* Jury trial: empaneling and swearing in of jury
* Bench trial: swearing in of first witness
* Juvenile proceedings: commencement (when the court begins to hear evidence)
101
# Fifth Amendment
Summary: when does double jeopardy apply?
1. Criminal prosecutions
2. Trials by same sovereign
3. Appellate court finds insufficient evidence to support conviction
4. Appellate court finds D guilty of lesser-included charge
5. Crime is lesser-included offense
6. Crime is greater offense
102
# Fifth Amendment
Summary: when does double jeopardy not apply?
1. Civil proceedings
2. Trials by different sovereigns
3. Trial ended in hung jury
4. Trial discontinued due to manifest necessity
5. D breaches plea bargain agreement
6. Retrial after successful appeal by D, but not for a more serious offense
103
Habeas corpus proceeding
* After D has exhausted all appeals, may attack conviction collaterally in new and separate civil proceeding
* Focuses on lawfulness of D’s detention
104
Death penalty for felony murder
* May not be imposed for felony murder when D did not kill or intend to kill
* May be imposed if D acted with reckless indifference to the value of human life
