Criminal Procedure

Question 1

The Exclusionary Rule

Answer 1

A remedy whereby someone who has been the victim of an illegal search or a coerced confession can have the product excluded from any subsequent criminal prosecution

Question 2

Exclusionary Rule exceptions

Answer 2

1. Impeachment
2. Grand jury proceedings
3. Civil proceedings
4. Parole revocation
5. Knock and announce rule violation in the execution of search warrants

*A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial–they apply the harmless error test

Question 3

Fruit of the Poisonous Tree

Answer 3

FOP: excludes illegally seized evidence and all evidence obtained or derived from the police illegality

*Doesn’t apply to Miranda violations, unless police act in bad faith in obtaining such information

Three ways exceptions:

1. The government can show it had an INDEPENDENT SOURCE for that evidence
2. INEVITABLE discovery–they would have discovered it anyway
3. INTERVENING acts of free will of defendant

Question 4

Search and Seizure Analysis

Answer 4

Step 1: government conduct
Step 2: Reasonable expectation of privacy
Step 3: Valid search warrant?
Step 4: If warrant not valid, officer’s good faith defense
Step 5: No warrant, not valid, no defense, Exceptions to warrant requirement

Question 5

Probable cause

Answer 5

Trustworthy facts or knowledge that a reasonable person would deem sufficient to believe that the suspect has committed or is committing the crime

Determined by a totality of the circumstances

Question 6

Reasonable suspicion

Answer 6

Have a reasonable suspicion that criminal activity is taking place based on specific, articulable facts

*determined by a totality of the circumstances

Question 7

Good Faith Defense

Answer 7

Def: if a search warrant is invalid (lacks PC), then the warrant may be saved if the officer’s good faith reliance on a search warrant overcomes defects with PC or particularity

Question 8

Exceptions to Good Faith Defense

Answer 8

1. The affidvait is so lacking in PC that no reasonable officer would rely on it
2. Lacking in particularity that no reasonable officer would rely
3. The police officer or prosecutor lied to or misled the magistrate when seeking the warrant
4. The magistrate is biased and has wholly abandoned his or her neutrality

Question 9

Seizure

Answer 9

Def: a seizure occurs when, under a totality of the circumstances, a reasonable person would not feel free to leave or decline the officer’s request.

Question 10

Arrest

Answer 10

Def: an arrest occurs when the police take a person into custody against her will for purposes of prosecution or interrogation.

Rule: must be based on probable cause
Warrant only required for home arrests, not public place.

Question 11

Investigatory Detention

Answer 11

AKA: stop and frisk
Rule: if the police have a reasonable suspicion that criminal activity is afoot, supported by articulable facts (not just a hunch), the officer may detain the person for investigatory purposes.

Rule: if the officers have RS to believe the person is armed and dangerous, they may frisk detainee for weapons.

Rule: must be reasonable in scope and duration to confirm or disspell suspicions.

Question 12

Auto Stop

Answer 12

Terry stop: must have RS to believe that a law has been violated.

Roadblocks valid if: special need and must

1. stop cars on the basis of some neutral, articulable standard and
2. be designed to serve purposes closely related to a particular problem

Question 13

Search Warrant Exceptions

Answer 13

1. Stop and frisk
2. Incident to con arrest
3. Auto search
4. Plain view
5. consent
6. hot pursuit, evanescent evidence, emergency aid

Valid even if warrant not executed properly or proper

Question 14

Standing

Answer 14

The person must have a reasonable expectation of privacy in the thing seized or place searched or a constitutionally protected area.

1. right to possession
2. his home, whether or not possession
3. overnight guest of owner of place

Not for things held out to the public:

1. curtilage
2. garbage left out
3. land visible
4. smell from one’s car or luggage

Question 15

Search Incident to Valid Arrest

Answer 15

1. arrest must be valid, otherwise search invalid too (PC)
2. search must be contemporaneous with arrest
3. search must be limited (wingspan or car)

Auto exception: limited to

1. unsecured arrestee with access to the car
2. the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.

Search of impounded vehicle okay=inventory search

Question 16

Auto Exception

Answer 16

PC that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.

Question 17

Plain View

Answer 17

Warrantless seizure when the officers:

1. are legit on the premises
2. discover evidence, fruits, or instrumentalities of a crime, or contraband
3. have PC to believe that the item is evidence or contraband (immediately apparent to them).

Question 18

Consent

Answer 18

Consent must be voluntary. Don’t need to have knowledge of right to consent. The scope of the search is limited by the scope of consent, but generally extends to all areas to which a RP under the circumstances would believe it extends.

Authority: any person with apparent equal right to use or occupy the property may consent. Any evidence found may be used against other owners or occupants.

Question 19

Confessions

Answer 19

The admissibility of a defendant’s confession or other incriminating admission involves an analysis under the Fourth, Fifth, Sixth, and Fourteenth Amendments

Question 20

Confessions–14th Amendment

Answer 20

Under the DPC, the confession must be voluntary, determined by a totality of the circumstances.

Only involuntary if there is an official compulsion (not just mental illness). Harmless error test applies, the conviction neeed not be overturned if there is other evidence of overwhelming guilt

Question 21

6th Amd Right to Counsel

Answer 21

Guarantees the right to assistance of counsel in all criminal proceedings, which include all the critical stages of prosecution have begun. (After formal charges been filed)

The 6TH amd prohibits police officers from eliciting an incriminating statement from the defendant outside of presence of counsel after the D has been charged. Unless D waived his right to counsel.

Before charged? 5th right

This right is offense specific, thus, he may be questioned regarding unrelated or uncharged offenses. Proof of an additional element the other does not require.

Question 22

No right to counsel

Answer 22

1. blood sampling
2. handwriting/voice
3. pre-charge or investigative line-ups
4. photo identifications
5. prelims to determine PC to detain (not to prosecute)
6. brief recesses during D’s testimony at trial
7. discretionary appeals
8. parole revocation
9. post-conviction

Question 23

Waiver

Answer 23

Waiver of 6th amendment right must be knowing and voluntary.

Question 24

5th Amendment

Answer 24

Miranda implicated when the defendant is in custody, before interrogation begins.

Custody: 1. free to leave and 2. coercive pressures of the environment

Interrogation: includes any words or conduct by the police that they know would likely elicit an incriminating response.

Question 25

Responses to Miranda

Answer 25

1. do nothing--police may continue questioning 2. waive--must be knowing and voluntary 3. right to remain silent--must be explicit, unambiguous, and unequivocal (the police may question about an unrelated crime) but must stop badgering 4. right to counsel--must be unambiguous statement, then all questioning must cease until counsel has been provided. (all questioning, not just related)

Question 26

Pretrial ID

Answer 26

Rule: requires 6th amendment right to counsel if post-charge lineup or show-up Rule: denial of due process rights if the ID is unnecessarily suggestive and there is a substantial likelihood of misidentification Exceptions: independent source (opportunity to observe the crime)

Question 27

Right to Trial by Jury

Answer 27

Only for serious offenses, not petty offenses or juvenile proceedings Serious=more than six months imprisonment Must be at least six jurors, and if so, unanimous No need for majority vote if 12

Question 28

Double Jeopardy

Answer 28

A person may not be retried for the same offense once jeopardy has attached. It attaches in a jury trial at empaneling and swearing, bench trial when first witness is sworn Exceptions: 1. hung jury 2. mistrial with manifest necessity 3. D's successful appeal unless grounds were for insufficient evidence to support guilty verdict. No greater offense though. 4. Breach of plea bargain

Question 29

Crim Pro--Analysis Search

Answer 29

1. Reasonable expectation of privacy 2. Warrant requirement 3. exception 4. if consent, then make sure to talk about scope and who can consent.

Question 30

Right to Confront Witnesses--6th amendment

Answer 30

When two defendants are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement. Exceptions: Unless all portions referring to the defendant are redacted/eliminated. The confessing defendant takes the stand and subjects himself to cross The non-testifying co-defendant's confession is being used to rebut the D's claim that the D's confession was obtained coercively

Question 31

Right to Counsel--Informants

Answer 31

Miranda only applies to interrogation by the publicly paid police, not where it is by an informant who the D does not know is working for the police 6th: right violated when the police deliberately elicit an incriminating statement from a D without first obtaining a waiver of D's right to have counsel. Absent a waiver, the right is violated when an undisclosed, paid government informant is placed in the D's cell, after D has been indicted, and deliberately elicits incriminating responses. A violation does not occur by the placing of informant in the cell, only when some other action is taken.