Criminal Procedure Flashcards
(126 cards)
1
Q
Double Jeopardy
A
Once placed in jeopardy, a D cannot be tried for same offense twice
2
Q
Second prosecution barred if
A
- First prosecution ended AFTER Jeopardy attached (when jury sworned in or in bench trial when first witness sworn in)
- D was acquitted
- If conviction reversed at Appellate ct for insufficient evidence
- if D was convicted in a lesser included offense in first prosecution
3
Q
Second prosecution NOT barred when
A
- First ended in mistrial declared for manifest necessity . e.g.,
a. hung jury,
b. on M of defendant,
c. conviction reversed on appeal due to procedural error like wrong jury instruction, admission of evidence - Second tried by a different sovereign govt
4
Q
Same Offense Blockburger Test
A
Compare elements of offense 1 and offense 2:
is any element of 1 not in the 2 and vice versa ? - Yes - Then no Bar (neither is lesser included of the other)
if all elements of 1 are in 2 (or vice versa)? - Yes - Then Bar (1 is lesser included of 2 or vice versa)
No Bar == can be prosecuted in succession (even if acquitted in first)
5
Q
Collateral Estoppel
A
Acquittal for offense 1 in first prosecution bars second prosecution if basis for acquittal in first case is a controlling fact in second case
6
Q
Convictions for several offenses in 1 proceeding
A
Barred ONLY if legislature did not intend to authorize convictions/punishments for all those offenses
If 1 is a lesser included offense of 2, it’s a rebuttable presumption that the legislature DID NOT intend to punish for both
7
Q
Double Jeopardy : New Evidence Exception
A
Id unlawful conduct is subsequently used in case 2 which was
not available at case 1 proceeding
(1) not occurred by tie of case 1, OR
(2) not discovered at case 1 despite due diligence
OR
circumstances materially changed after jeopardy attached (e.g., battery charge and the victim dies after jury sworn in)
8
Q
Sentence Enhancer conduct
A
can be indicted for offense based on the conduct in new. case
9
Q
Separate Sovereign : Double Jeopardy Exception
A
- State and Fed Govt
- Different States
NOT for municipalities though
10
Q
Privilege against Self-incriminatory testimonial behavior
A
Personal (i.e. asserted only when testimonial behavior is incriminating to themselves)
Exists in criminal AND civil cases AND congressional testimonies too as long as testimonial about D’s thoughts ( and not physical attributes)
not for business entities
Eliminated with grant of immunity e.g.,
- use immunity : prosecutor cannot use anything you say or anything govt finds based on what you say against you
- transaction immunity: prosecutor cannot prosecute based on whatever you tell them
11
Q
Non-testimonial and not protected by 5th amendment
A
Blood/breath samples (indicating information about physical attributes and not thoughts)
Walking on a straight like (reveals physical manifestations not thoughts)
Stand in a line up (physical appearance)
Stand in a line up to speak for voice sample ( sound of his voice)
Stand and walk to observe limp
Handwriting sample
12
Q
Search and Seizure: Executed by Government agent only
A
- public servent ( e.g. LE officer even if off duty), private citizen at the direction of police/govt,
- publicly paid actor
13
Q
Search and Seizure: Analysis
A
- Was it Search or Seizure (i.e. government action intruding on Reasonable Expectation of Privacy)
- Probable cause?
- Warrant?
- Exception to warrant requirement?
14
Q
Not Search
A
Objects held out to the public:
- information with third parties (e.g., bank records) EXCEPT cell-site location records
- Aerial surveillance in public air space of a fenced in yard
- trash left for collection
- pen register or numbers dialed from residential home
- odors emanating from luggage/car (e.g., K9 sniffer)
- sound of voice
- style of handwriting
- paint on outside of car
- location of car in public / driveway
- anything seen from open fields
-
15
Q
Yes Search (Reasonable expectation of privacy test)
A
- Rigorous squeezing of luggage in a bus luggage rack
- thermal imaging of residence
- attaching tracking devices to a vehicle + long term monitoring of vehicle
- drug sniffing dogs coming onto the porch : home much more important
- Historical cell-site data from third-party for 7 days or more
16
Q
Plain view Doctrine: Search
A
Not search if :
- an officer is merely looking at something left in plain view
- from a location where officer is lawfully permitted to be
17
Q
Trespass doctrine for Search or Not
A
- Sometimes it is a search because Police trespass to acquire info
18
Q
Open fields test
A
Officer going on unoccupied / undeveloped land not part of a curtilage of a dwelling - NOT search
Curtilage : area surrounding residence
19
Q
Reasonableness of Search
A
If the search is
- pursuant to a valid search warrant
- based on probable cause (typically)
20
Q
Probable cause
A
Facts indicating a reasonable probability of
- on going criminal activity
- presence of evidence of crime in the area
Heresy is allowed + to determine PC
Informant information can be relied on
- even anonymous informant + corroboration
E.g., Dog alert at traffic stop can create probable cause
- if D is arrested for serious offense retrieving cheek swab is reasonable and ok (not unlawful seizure or search)
21
Q
Items subject to seizure
A
- contraband
- fruits of a crime
- instrumentalities of crime
- evidence that crime was committed or that person committed a particular crime
22
Q
Warrant
A
- needs probable cause AND
- particularity
- placebo be searched
- identify items pursued in the search
23
Q
No knock entry Warrant
A
Police must knock and announce presence BEFORE entering premises : give occupant opportunity to let them in
Except-if police reasonably suspect that occupants would:
- resist arrest
- shoot
destroy evidence
24
Q
Seizure
A
Items:
- Reasonably believed to be described in the warrant
- left in plain view of a officer searching lawfully and having probable cause to be seizable (e.g., contraband)
25
Plain view Seizure
When officer is in a location lawfully and sees in plain view a seizable item - can seize it even without warrant
BUT cannot use plain view to search backpacks, bags etc
26
Officer misstatement to obtain Warrant
D can challenge the warrant by showing:
- Officer misstated in affidavit intentionally or recklessly
- misstatement was material (w/o it affidavit was insufficient)
27
Seizure when
when a reasonable person would believe they were not free to leave (TOTC factors e.g., submission to a show of force)
28
Exceptions to Warrant Requirement: Consent
Search can be within the scope of consent and reasonable extension therefrom
Consent can be from someone with actual authority or one with apparent authority (police reasonably believed them to have authority)
Joint occupant : only need consent from 1 but not with another present and active rejection
29
Exceptions to warrant requirement
1. Consent
2. Automobile
3. Plain view doctrine (warrantless seizure)
4. Exigent circumstances (warrantless seizure)
5. Administrative Inspections and Searches
Special Need justifications
6. Incident to Constitutional Arrest
7. Terry Stops
8. Border:
30
Exception to warrant requirement: Automobile
Still need probable cause but don't need a warrant because the mobility of the automobile is inherently an exigent circumstance
Scope of search: Anywhere where the items might be found including Passengers belongings
31
Traffic Stop different from Automobile search w/o warrant
NO need to have probable cause for traffic stop: ca acquire probable cause as events unfold
Only reasonably articulable suspicion
32
Exception to Warrant Requirement: Exigent circumstances (warrantless seizure)
OK when
a. destruction of evidence
b. evanescent evidence
c. hot pursuit
d. emergency aid
33
Exception to Warrant Requirement: Search incident to constitutional arrest
a. On the person of arrestee and
b. premises (wingspan rule) and
c. vehicle incident to arrest :
- if reason to believe evidence related to crime of arrest may be found - or if arrestee is unsecured : can search cabin but not trunk
- if arrestee is within reach - also only cabin not trunk
- inventory exception : when arrested and impounded standardized procedure following existing dept policy
34
Exception to Warrant Requirement: Non arrest Detections : Terry Stops
Brief investigative stop - but its a seizure IF
- officer draws weapon
- tone aggresive/confrontational
- takes ID person doesn't have right to leave or refuse consent
- if pursued : only if person stops submits to authority
35
Terry Stop - who's is seized?
Driver and passengers who cannot leave
36
Dog sniffs at traffic stops
not a search and therefore not prohibited as long as they do not prolong the stop beyond time needed to issue a ticket /conduct normal inquiries.
If the dog alerts : that can be a Probable cause for a further search.
37
Police Officer's mistake of law
if reasonable is not a cause for invalidating seizure
38
If Officer's have an alternative motive(e.g., drug search) for a traffic stop
officer's motive is irrelevant and drugs if subsequently found will be admissible
(e.g., under playing view or running plates leads to arrest and search incident to arrest)
39
Terry Stop Limitations
1. Needs to be based on reasonable suspicion of unlawful activity
2. cannot be prolonged
3. cannot involve moving detained person
4. no automatic right to search/frisk at Terry stop - need more
40
Terry Friskq
1. Only a superficial limited pat down allowed with open hands
2. Only if officer has reasonable suspicion that D is armed and dangerous
3. If immediately recognized as contraband , then yes can seize
41
Vehicle frisk
1. Just the passenger cabin - not the trunk
2. only areas where a weapon might be held
3. Only based on reasonable articulable suspicion that D was armed and dangerous
42
Reasonable suspicion
< Probable cause ( a fair probability that D was engaged in criminal activity)
based on specific and articulable facts that inform an officers belief
43
Arrest occurs when
D submits to police authority and is taken into custody
44
Arrest Needs
Probable cause
an offense - any offense is arrest able
45
Arrest needs warrant
when arrest at home
Not needed when arrested outside
Arrest D at C's house - need arrest warrant for D and search warrant for C's house
46
VA Felony Arrest
Officer may arrest anyone who commits
- any crime in officer's presence OR
- a felony not in the officer's presence
47
VA Misdemeanor arrest
Officer may arrest D for misdemeanor not committed in officer's presence if:
- Officer receives telephone/radio message that warrant for such an offense is on file OR
- offense involves assault and battery and is based n probable cause arising from reasonable eyewitness complaint
-generally, no automatic arrest for misdemeanors
48
Line up - right to a lawyer
6th amendment right counsel after judicial proceedings have begun
- applies to line up or show up (just the guy)
- after indictment
- not triggered by arrest alone
49
Showing photographs
No right to counsel (non corporeal identification)
50
Due process right at identification
If identification is so suggestive that there is substantial likelihood of misidentification
- applies EVEN when NO RIGHT TO COUNSEL
- can apply right after arrest
51
Independent source identification
in court identification - no longer reliant on flawed line up
52
Inadmissible confessions
If
1. coerced or involuntary
2. Delay in bringing arrested defendant before magistrate
3. Miranda violation
4. violation of 6th amendment right to counsel
5. product of unlawful arrest or detention
53
Confession Involuntaty if
Made under police coercion or threat - TOTC analysis
- physical force
- threat of physical force
- extreme psych trickery
Not D's undisclosed mental impairment alone - not sufficient
Not when D confesses because delusional "god told him to"
54
Coercive factors
1. deception by officers
2. delay in presenting D to magistrate
3. promise of a specific benefit made by person of authority
55
Harmless Error Test for inadmissible confessions
If inadmissible confession is admitted and results na conviction
- conviction need not be overturned if there is other overwhelming evidence of guilt
56
5th amendment privilege against self-incrimination
Miranda warning must be read prior to custodial interrogations by law enforcement/government agent
Except the witness testifying at grand jury hearings even if compelled by subpoena
57
An interrogation is Custodial if
1. freedom of movement test:
- would a reasonable person in D's circumstances feel they were free to end the encounter and leave
2. relevant environment test:
- did the relevant environment present the same coercive pressures as a type of station house questioning in Miranda?
58
Interrogation if
includes words or action or conduct by police that they know is likely to elicit a self-incriminating statement or response from detainee
routine booking questions ARE NOT interrogation
59
Public safety exception : miranda
if custodial interrogation is prompted by an immediate concern for public safety no Miranda warnings necessary and any incriminating statements are admissible against suspect
60
Miranda Warning
1. D has right to remain silent
2. anything they say can be used against them in court
3. D has right to presence of an attorney
4. if they can't afford an attorney, one will be appointed for them if they so desire
61
Admissible confession if
1. miranda warning given
2. D made voluntary and knowing waiver of rights (right to atty and to remain silent)
knowing == understanding consequences
62
Invocation of right to remain silent has to be
- explicit, unambiguous, and unequivocal
- scrupulously honored by police
once invoked no more badgering for an amount of time
- after which has to be re-mirandized and has to be about a crime not the subject of the first interrogation
63
Invocation of right to counsel has to be
- unambiguously stated
- by the detainee
- after which, honored and all questing ceased unless
- detainee then waives their right to counsel by reinitiating questioning
- or released to their normal life and 14 days passed
64
If violation of miranda rules, confession is
- inadmissible in Prosecution's case in chief
- but admissible to impeach a D's trial testimony at cross-exam
Not usable to prove guilt or to impeach a third party witness
65
Non-testimonial fruits of unwarned confessions
will be suppressed only if the failure to warn was purposeful but admissible otherwise
66
5th amendment right to counsel is ____________ but 6th amendment right to counsel is ___________.
not offense specific (good for all crimes)
offense specific (cops can remirandize and reinitiate interrogation about a different crime)
67
Physical evidence retrieved based on an unmirandized confession statement
is admissible- just not the statements themselves
68
Two step interrogation scheme with delayed miranda after first confession to get second confession
then both confessions are inadmissible
69
Genuine mistake to not mirandize before first confession then
second confession after miranda is admissible
70
6th amendment right to counsel
- after indicted or if judicial proceedings have begun
- attaches when formal charges are filed
- offense specific
71
Jail cell undercover persuasion to talk - after charges filed ______________ but before charges filed ________________.
fall under 6th amendment right to counsel and are inadmissible,
fall under 5th amendment right to counsel / silence alone and may be admissible because not interrogation or not custodial.
72
Undercover wearing a wire, statements of D recorded
may be __________ under _____________ before __________,
but are __________ under ______________after ___________.
admissible under 5th amendment before judicial proceedings have begun, (miranda doesn't apply)
inadmissible under 6th amendment after indicted/charged/bail set and proceedings have begun.
73
Once arrested AND PRESENTED BEFORE A JUDGE
proceedings have begun,
6th amendment right to counsel attaches, (not in miranda world anymore)
any statement w/o atty present is inadmissible. Police cannot even talk to D without lawyer present.
74
D must have _________ to challenge the admissibility of evidence with an ______ based on ________ of his/her rights.
standing.
objection
violation
75
If a search is unreasonable, ____________ obtained as a result must be ___________
Except _______________ from __________ obtained in violation of _______ may be admissible.
all fruits
excluded.
physical evidence derived
statements
Miranda
76
Illegally obtained evidence (in violation of D's rights) may still be used in ___________ for _________ purposes
cros-exam
impeachment
77
Passenger in a car that is stopped cannot challenge ____________ but can challenge _____________.
unlawful search of the car - no standing
the seizure of their person being unlawfully stopped
78
Illegally obtained evidence (in violation of D's rights) is not excluded
if the connection between unlawful police conduct and and the evidence is ______ breaking the ___________ (e.g., __________).
remote
casual link
e.g., intervening acts of free will by D
79
Illegally obtained evidence (in violation of D's rights) is not excluded
if the evidence would have anyway _________________.
would have been discovered inevitably
80
Exceptions to Exclusionary requirements
1. impeachment
2. attenuation doctrine
3. inevitable discovery doctrine
4. Independent source doctrine
5. good faith exception
81
Illegally obtained evidence (in violation of D's rights) is not excluded
if the evidence is obtained through _____________.
an independent source than fro the illegal source
82
Good Faith exception to exclusionary rule
When a reasonable police officer would believe that actions taken were reasonable under a valid warrant or statute that was later held to be invalid
83
Good faith exception is almost never applies
to warrantless searches
84
No good faith exception if a warrant is
1. egregiously lacking probable cause (very bare bones)
2. facially deficient in particularity that officer cannot reasonably belief it was valid or rely on it ( no what's to be searched and what's to be seized)
3. Affidavit relied upon by magistrate has known/reckless falsehoods
85
Who has no standing in a house
temporary commercial visitors
mere authorization for presence
presence to engage in illegal activity
86
who has standing in a house
owner
resident
overnight guest
87
Ownership alone is insufficient: Mike doesn't have standing to challenge unlawful search of "Mike's bag" found in a car search, despite his name on the bag, unless Mike
owns or regularly drives the car and had keys (Mike has no REP in a bag he left in someone's car)
88
A passenger's coat found in a back seat in an unlawful car search, the passenger however
does have standing to challenge the search of the coat (has REP in their own coat)
89
Grand Jury purpose
1. issue indictments
2. perform investigations
90
Federal case have to use grand jury but states
do not have to, VA does though
91
VA Grand Jury
5-7 jurors
considers bills of indictment whether tp return a true bill (if not a no bill)
92
Investigative VA Grand Jury
7-11 jurors
investigates and makes a report then discharged
93
Multi-jurisidictional VA Grand Jury
Cross jin lines - across counties
- returns indictments
94
Right to Speedy Trials analyzed by
TOTC
1. length of delay
2. reason for delay
3. whether D demanded trial date (demanded his trial date)
4. prejudice to defendant ( has the delay harmed the D)
95
Remedy to speedy trial right violation
Dismissal of all charges
96
VA Right of speedy trial: Charges dropped if:
- trial has not starter in 5 months from preliminary hearing if in custody
- trial not started in 9 months from preliminary hearing is not in custody
97
VA Speedy trial : Trial commences when
Double jeopardy attaches or
when pleas of guilty or solo contendre is entered
98
Prosecutor is obligated to disclose ALL
material exculpatory evidence to the D - Brady Doctrine
99
Trial publicity : to combat prejudice caused by publicity Judge can
- Delay a trial
- Sequester the jury
- Change the venue
100
VA Court System : GDC
No record, no judge, no attorneys
Do preliminary hearings for felonies
101
VA Courts: Circuit courts
Trials
felony cases
de novo appeals
102
VA Court : Court of Appeals
Appeals from Circuit courts
103
VA SOL for criminal cases
Felonies : no SOL
Misdemeanor: 1 yr
104
VA Indictment
Written document : after true bill from grand jury: sets forth felony charges
105
VA Information
Written accusation of charges by prosecutor
106
Arraignment
Formal reading of the charges against the D, not necessary if waived by D
107
Indictment
Formal accusations of the D with offenses alleged by a grand jury - happens first
108
Constitutional right to jury trial if max sentence authorized can
exceed 6 months
109
VA jury - For Felony ______ and for Misdemeanor case _______
12 jurors
7 jurors
110
Jury verdicts I criminal trials must be
unanimous
111
VA Juries can do
sentencing
112
Verdict
in writing
read aloud in open court
113
VA Peremptory challenges
4 for felony cases
3 for misdemeanor cases
114
Ineffective counsel - show
1. Performance below std of reasonableness
2. Prejudice - but for deficient performance, the outcome would've been different
115
Confrontations Clause doesn't apply if
it contravenes a public policy concern
116
Guilty pleas must be
voluntary
and
intelligent
117
Once sentencing has happened, guilty please can be rendered invalid only
if proven involuntary
jurisdictional defect
prosecutor breaks deal
118
Nolo contendere (or no contest) plea
Fed court - cannot be used in subsequent litigation
VA - it can be used in subsequent cases
119
Withdraw guilty or no contest plea in VA ONLY
before sentencing imposed or suspended
or before 21 days after judgement entered
120
Habeas Corpus
civil proceeding D acting as P in suit against govt
121
122
Crim Pro - 4th amendment Evidentiary Search and Seizure - Framework
Q1: Govt action?
Q2: Was it a "search" - Is there a Reasonable expectation of Privacy / trespass
Q3: Was there a valid warrant
1. Was there PC?
2. Good faith exception even if warrant not valid?
3. Exceptions
123
Search/Seizure Exceptions to Warrant Requirement
1. Incident to lawful arrest
2. Automobile exception
3. Plain View
4. Consent
5. Terry investigatory detention
6. Exigent circumstances :
hot pursuit,
evanescent evidence
emergency aid
124
Crim Pro Checklist - Level 1
Exclusionary Rule
Search and Seizure
Arrest and investigatory Detentions
Confessions and Privileges
Right to counsel
Line-ups, fair trial, guilty pleas, and Double Jeopardy
125
Crim Pro - 4th amendment Search
Q1. Is there govt action?
Q2: Is there a search/seizure - REP?
Q3: If it's a search- was it reasonable - valid warrant? or exceptions to warrant requirement?
Q4: Is there an exception to the exclusionary rule?
126
