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Flashcards in Criminal Procedure Deck (63)

4th amendment standing

Car stop = driver and passengers.

Home = right of possession and overnight guest.


When do police need warrants?

* in home, UNLESS consent or exigent circumstances.

* exigent circumstances:
1) hot pursuit: felony, NOT misdemeanor.
2) emergency: evidence destroyed OR officer safety.

* knock and announce

* consent:
- third party can consent as to area of joint control, UNLESS owner is present and objects, BUT in any case NOT to area of exclusive control, BUT officers may rely on apparent authority. EXCEPTIONS: landlords and tenants, hotel guests, employee personal lockers.
-parent can consent to search of adult child's room.


Probable cause for a warrant

1) officer's personal observation.
2) information from reliable known informant.
3) info from unknown informant if independently verified.
4) evidence already seized through lawful means.

* Honest mistake does not invalidate warrant UNLESS officer knew the info was false or recklessly disregarded truth.


NY: probable cause

* Probable cause need not use competent evidence, may use unsworn hearsay.

* If using informant, warrant must demonstrate:
1) veracity
2) reliability
3) basis of knowledge


Search incident to lawful arrest

* within defendant's wingspan as long as bag is large enough to conceal weapon or evidence of crime.


NY: search incident to arrest

Police may NOT search area around defendant UNLESS they believe he is armed and dangerous.


NY: emergency (search without warrant)

Must show:
1) nexus between emergency and area searched
2) emergency needed immediately attended to
3) primary purpose was to deal with emergency, not to pursue arrest.


Stop and frisk

1) reasonable suspicion
-less than probable cause.
2) based on articulable facts
-can be based on informant's tip if reliable.
3) that defendant was involved in crime.

* Frisk: allowed if necessary for safety.
-officer can seize anything that be plainly identified by feel.


NY: stop and frisk

Officer may ONLY seize something that plainly feels like a weapon under stop and frisk.


Terry stop of car

Police can search passenger compartment for weapons if:
1) reasonable belief that suspect has dangerous weapons;
2) search limited to where weapons could be hidden;
3) may frisk individual if reasonable suspicion that he has weapon.


Rules for searching a vehicle

1) NO warrant needed if probable cause that car contains contraband or evidence or a crime (NOT applicable to searches of passengers).

2) search incident to arrest of driver if:
i) arrestee in reaching distance of passenger compartment; OR
ii) reasonable belief that evidence of offense may be found in vehicle.

3) if car legally impounded, can search entire car.


Plain view

Can seize if:
1) in house for lawful purpose
2) incriminating character is immediately apparent.


NY: plain view

Officers cannot seize material based on alleged obscenity without a warrant.


NY: consent by drivers

Anyone who drives a car is deemed to have consented to blood, urine, breath, and saliva tests.


Administrative searches

1) airports
2) business in highly regulated industries
3) wiretaps for national security
4) search of students by drug officials
5) special needs, e.g. drug testing of student athletes.
6) inventory searches of items in official custody (in NY, must have established procedures).
7) border searches.
8) checkpoints and roadblocks if uniform and nondiscriminatory.
9) file cabinets and desks of government employees if reasonable suspicion of work-related misconduct.
10) traveler suspected of smuggling contraband in stomach.
11) searches of parolees and their homes.
12) seizure of contaminated/spoiled food.


Exceptions to exclusionary rule

1) inevitable discovery rule

2) independent source doctrine:

3) attenuation principle: passage of time OR intervening events.

4) Good faith exception: if good faith reliance on warrant, evidence admissible UNLESS:
i) no reasonable officer would have relied;
ii) warrant defective on face;
iii) warrant obtained by fraud
iv) warrant improperly executed
v) magistrate wholly abandoned judicial role.

5) Back-office negligence not disqualifying UNLESS systemic or reckless.

6) Violation of knock and announce will not lead to exclusion.

7) Witness' in-court identification is always admissible.


NY: exceptions to exclusionary rule

NY does NOT have a good faith exception.


Use of statements barred by 5th amendment

* Involuntary statements: not usable for impeachment or case in chief.

* Voluntary statements in violation of Miranda:
1) can by used for impeachment.
2) physical fruits are admissible for case in chief.


NY: voluntary confessions

NY courts consider:
1) length of interrogation
2) for minors, absence of parent.


Consequences of violation of Miranda

1) cannot be used in case in chief.

2) can use to impeach defendant if voluntary and trustworthy.

3) physical fruits of voluntary statements are admissible.

4) voluntary post-Miranda statements are admissible UNLESS police were intentionally attempting to circumvent Miranda.

* Harmless error test for evidence admitted in violation of 5th amendment.


6th amendment right to counsel

1) all felony cases
2) misdemeanor cases in which incarceration is actually imposed.


When does 6th amendment right to counsel apply?

* From formal charges to sentencing. Includes indictment, arraignment or preliminary hearing.
1) post-indictment/pre-arraignment lineups and identifications.
2) custodial and police interrogations.
3) post-arraignment interrogations.
4) arraignment.
6) guilty please and sentencing.
7) appeals as a matter of right.


When does 6th amend right to counsel NOT apply?

1) witness viewing photo IDs;
2) pre-charge investigative lineups;
3) fingerprints, handwriting, voice, or blood samples.
4) preliminary hearings on probable cause.
5) discretionary appeals.
6) post-conviction proceedings (parole, probation).


NY: "indelible" right to counsel

Right to counsel attaches on:

1) commencement of formal judicial proceedings.

2) at investigatory lineup, if defendant already has attorney and request his presence.

3) significant judicial activity, including grand jury appearances.

4) in custody, where police conduct is likely to be overwhelming to layperson, and counsel is requested.


Waiver of 6th amendment right

Knowing + voluntary + intelligent.


NY: waiver of right to counsel

* If represented by attorney, waiver valid ONLY in presence of counsel, UNLESS that counsel is for unrelated charge.


Consequences of 6th amendment violation

1) if at trial, automatic reversal.

2) withdrawal of guilty plea.

3) placement of informant -> inadmissible.

4) exclusion of identification at post-indictment lineup.

5) If non-trail proceedings, use harmless error analysis.

6) Statements and physical evidence can be used for impeachment, BUT NOT case in chief.


Ineffective assistance of counsel

1) deficient performance

2) prejudice to defendant's case.

* Conflict of interest: actual conflict + adverse effect.


NY: ineffective assistance of counsel

1) defendant did not receive "meaningful representation"

2) conduct was "egregious and prejudicial error"

3) but for deficiency, result would have been different.


Admissible of lineup IDs

1) Impermissibly suggestive?
2) If so, nonetheless reliable?
-opportunity to see defendant at crime scene.
-degree of attention at crime scene.
-accuracy of pre-ID description.
-level of certainty.
-length of time.

* If no to (1) and (2) above, then:
- out of court ID inadmissible.
- in court ID admissible ONLY IF prosecutor can show by clear and convincing evidence that ID was based on things other than the lineup.

* If lineup ID wrongfully admitted, then harmless error analysis.


Two ways to bring charges

Indictment: grand jury finds probable cause.

Information jurisdictions: preliminary hearing on probable cause by magistrate within 48 hours of arrest.


NY: bring charges

Defendants in felony cases are entitled to preliminary hearing UNLESS grand jury indicted them already.


Grand jury proceedings

1) defendant has no right to present or confront witnesses
2) prosecutor has no duty to present exculpatory evidence.
3) illegally obtained evidence or hearsay is admissible.
4) no right to counsel.


NY: grand juries

1) 16-23 people, 12 needed for indictment.

2) evidence must be legally sufficient and admissible at trial.

3) defendants can request to testify BUT must waive immunity.

4) witnesses with total immunity have no right to counsel.

5) witnesses without immunity have right to counsel.


Prosecution duty to disclose

* MUST disclose exculpatory evidence (negate guilt OR diminish culpability or punishment).

* Failure is grounds for reversal if:
1) evidence was exculpatory; AND
2) prejudice from failure to disclose.


NY: Prosecution duty to disclose

Prosecution MUST disclose:

1) all statements of prosecution witnesses related to the testimony.

2) statements of defendant and co-defendants. (if suppressible, then within 15 days of arraignment).

3) all documents, photos, drawings, scientific tests, objects, or tangible things that prosecution intends to use at trial.

* Grounds for reversal if defendant shows that failure to disclose materially contributed to or altered the outcome of the proceeding.


Waiver of jury trial

Voluntary + knowing + intelligent + in open court.


NY: waiver of right to jury trial

may NOT waive right in first-degree murder case.


Jury size and unanimity

Federal: 12 members + unanimous verdict.

State: 6 members + unanimous OR 6+ members + substantial majority.


NY: jury size

In felony trials, 12 jurors + up to 4 alternates. Defendant may waive and have 11 jurors.

If misdemeanor, 6 juror + up to 2 alternates.


Challenge to jury composition

Defendants must show:
1) distinctive group in community;
2) not fairly represented in venire;
3) resulting in systematic exclusion of that group.

* Prosection rebuttal:
1) manifestly and primarily advances
2) a significant government interest.


Peremptory challenges

may NOT challenge based solely on race or gender.

* Batson test for race:
1) moving party shows prima faciae case;
2) challenged party gives race-neutral explanation;
3) moving party must show justification is pretextual.


Guilty pleas

Judge must first advise defendant:
1) right to trial
2) right to plead not guilty
3) right to counsel
4) elements of charge
5) maximum and minimum sentences
6) waiving right to appeal
7) statements may be used under oath in subsequent perjury action.


Right to speedy trial

1) length of delay
2) reason for delay
3) assertion of right to speedy trial
4) prejudice to defendant
5) diligence and good faith by court.

* If violated = dismissed with prejudice.


NY: right to speedy trial

Felony: 6 months

Class A misdemeanor: 90 days

Class B misdemeanor: 60 days

Violation: 30 days


What is testimonial?

= reasonably expected to be used in prosecution, e.g.:
1) affidavit
2) custodial examination
3) prior testimony
4) police interrogation (EXCEPT ongoing emergency)
5) results of lab tests (NY: does not include rape kit tests)

* To admit, must show:
1) witness unavailable
2) defendant had prior opportunity to examine.


Bruton rule

Admission of the confession of a non-testifying codefendant is NOT allowed.


NY: burden of proof for affirmative defense

Insanity, duress, entrapment = preponderance of the evidence.


Blockburger tests

* Used to determine if offence is same for double jeopardy:
1) Does each offence require proof of an element that the other does not?
2) If not, then lesser included offense and DJ attaches, UNLESS:
-facts necessary to prove greater offense did not become available until after trial.
-prosecution negotiated as part of guilty plea to lesser offence that defendant waive DJ rights for greater offence.


NY: double jeopardy

Crimes arising out of single transaction must be tried together UNLESS:
1) each offense has different elements;
2) one concerns possession and the other use;
3) each offense involves death or injury of different victims.


When does DJ attach?

Jury trials: when jury is impaneled and sworn.

Bench trials: when first witness is sworn in.



1) OK after reversal due to trial error.

2) NOT OK after reversal due to insufficiency of evidence.

3) OK after mistrial if there is manifest necessity to declare mistrial:
-judge or juror sickness
-the jury hangs
-defendant moves for mistrial.
-BUT if prosecution moves for mistrial due to inability to locate witness, DJ will attach.


What can prosecution appeal?

= any determine not related to innocence:
1) orders dismissing indictments
2) orders suppressing evidence
3) post verdict new trial
4) bail determinations
5) sentences (even more severe is ok).


Factors for determining curtilage of home

1) proximity to home
2) whether or not included in enclosure
3) nature of the use
4) steps taken to protect


Defendant right to attach warrant

Can show by PoE that affidavit:
1) contained false statements made knowingly, intentionally, or with reckless disregard for truth;
2) false statements were necessary to finding of probable cause.


Requirements of wiretapping warrant

1) limited to short time period
2) probable cause
3) name of person(s) involved
4) description of conversations overheard
5) provisions for termination


Conditions to administer antipsychotic drugs for competency to stand trial

1) no serious side effects affecting fairness of trial;
2) necessary, no less instrusive method;
3) medically appropriate.


NY: prosecutor failure to disclose

Grounds for due process violation if failure had a "reasonable possibility" of contributing to verdict.


Violations of 8th amendment

1) recidivist statutes specifying death penalty for non-violent felonies.
2) jail sentence merely for inability to pay fine.
3) failure to admit or review mitigating evidence in death penalty.
4) death penalty in rape cases if victim is woman or child.
5) death penalty in felony-murder case where defendant did not intent deadly force.
6) death penalty for insane people or the mentally retarded.
7) death penalty for person under 18 at time of commission of crime.


Death penalty

Statutory scheme MUST provide:
1) clear and objective standards;
2) specific and detailed guidance;
3) opportunity for rational review.

* Aggravating circumstances in homicide crimes must be:
1) not apply to every defendant convicted of murder;
2) not unconstitutionally vague.

* sentencing proceed reqts:
1) channel of limit discretion.
2) must consider relevant mitigating evidence.


Writ of habeus corpus

* Available to defendant in custody, or on probation or parole.

* Civil action. Must show by preponderance of evidence that detention was improper.


Sentence enhancements

If fact proved to enhance sentence over statutory maximum, then:
1) must be charged in indictment;
2) proved beyond reasonable doubt;
3) submitted to jury.

NOT applicable to consecutive sentences based on determinations by judge.

Harmless error analysis for violations.


5th amendment right to counsel vs. 6th amendment right to counsel

5th : custodial police interrogations.

6th: post indictment