Criminal Procedure

Question 1

[CRIM PRO] • 4 • Exclusionary Rule and Fruit of the Poisonous Tree Doctrine • •

Answer 1

Under the exclusionary rule, evidence obtained in violation of a defendants 4th, 5th, or 6th Amendment rights is inadmissible in a criminal case. Additionally, all derivative evidence is also inadmissible under the fruit of the poisonous doctrine. The exclusionary rule DOES NOT apply if: (1) there is an independent source for the evidence; (2) the evidence would have inevitably been discovered; (3) the secondary evidence arose from intervening acts of free will by the defendant; OR (4) the police officers relied in good faith on a defective search warrant. The exclusionary rule DOES NOT apply to grand juries or civil proceedings.

Question 2

[CRIM PRO] • 7 • Fourth Amendment • Search and Seizure • Rights

Answer 2

The Fourth Amendment prohibits the government from conducting unreasonable searches and seizures in an area where a person has a reasonable expectation of privacy. A search or seizure without a warrant is generally unreasonable.

Question 3

[CRIM PRO] • 2 • Fourth Amendment • Search and Seizure • Search Warrant Requirements

Answer 3

A valid search warrant must be (1) granted by a neutral judge ; (2) based on probable cause established by articulable facts; AND (3) particular as to the place to be searched and items to be seized.

Question 4

[CRIM PRO] • 2 • Fourth Amendment • Search and Seizure • Seizure during Lawful Arrests

Answer 4

All arrests must be supported by probable cause. An arrest warrant is NOT required for public arrests when the arrest is supported by probable cause AND one of the following is true: (1) the offense was committed in the officers presence ; OR (2) there is probable cause to believe a felony was committed. Probable cause to arrest exists where the facts and circumstances within the officers knowledge warrant the belief that an offense has been or is being committed, and that the arrested person is the perpetrator. Absent an emergency, a warrant is required anytime arrests are made inside a persons home.

Question 5

[CRIM PRO] • 3 • Fourth Amendment • Exceptions to the Warrant Requirement • Plain View Doctrine

Answer 5

Under the Plain View doctrine, items may be seized by a police officer when (1) observed (with any of the five senses) in plain view (2) from a place the officer is lawfully permitted to be ; AND (3) probable cause exists to believe that the items are evidence of a crime.

Question 6

[CRIM PRO] • 1 • Fourth Amendment • Exceptions to the Warrant Requirement • Search Incident to Arrest

Answer 6

A warrant is NOT required to conduct a search incident to arrest. To be valid, the search must follow a lawful arrest , AND must be limited to the arrestee and the area within the arrestees immediate control (includes the passenger area of a car and any containers in the car).

Question 7

[CRIM PRO] • 4 • Fourth Amendment • Exceptions to the Warrant Requirement • Request for Information, Stop and Inquire, and Stop and Frisk

Answer 7

The police may make a request for information anytime except on “whim or caprice.” A police officer may stop and inquire if the police officer has reasonable suspicion that criminal activity is afoot. A stop and inquire allows only a brief detention for questioning, after which the suspect must be released. A police officer may only stop and frisk a person if the police officer has reasonable suspicion that the person is committing, has committed, or is about to commit a crime. Under the plain feel doctrine, during the frisk a police officer may only seize items he or she reasonably believes is a weapon. Reasonable suspicion is defined as the quantum of knowledge sufficient to induce an ordinarily prudent and cautious person under the circumstances to believe that criminal activity is at hand. Courts use a sliding scale based on the particular factual circumstances to determine whether reasonable suspicion was present to conduct a stop and frisk.

Question 8

[CRIM PRO] • 2 • Fourth Amendment • Exceptions to the Warrant Requirement • Consent

Answer 8

A warrantless search or seizure is constitutional if an individual who is authorized to consent, voluntarily and knowingly consents to the search or seizure. Where two individuals are authorized to consent, consent from only one of them is valid. However, if both are present, and one objects, consent from the other is NOT valid.

Question 9

[CRIM PRO] • 1 • Fourth Amendment • Exceptions to the Warrant Requirement • Administrative Searches

Answer 9

Administrative searches, those that serve special needs distinct from the ordinary interest in law enforcement , do NOT require a warrant. However, administrative searches of a private residence DO require a warrant.

Question 10

[CRIM PRO] • 2 • Fourth Amendment • Exceptions to the Warrant Requirement • Checkpoints

Answer 10

The government may stop vehicles and conduct searches at checkpoints IF the checkpoint (1) is conducted in a nondiscriminatory manner (people are stopped at random); (2) for a purpose other than investigation of criminal activity; AND (3) is reasonable in scope.

Question 11

[CRIM PRO] • 1 • Fourth Amendment • Exceptions to the Warrant Requirement • Automobile Search

Answer 11

A warrant is NOT required to search an automobile if there is probable cause to believe it contains evidence of a crime or contraband. The entire car may be searched, including any containers that might reasonably contain evidence or contraband. If the car itself is contraband, it may be seized from a public place without a warrant.

Question 12

[CRIM PRO] • 1 • Fourth Amendment • Exceptions to the Warrant Requirement • Emergency Situation

Answer 12

A warrant is not required in emergency situations where evidence may be moved or destroyed, or a fleeing suspect will escape before a warrant can be obtained. A court will consider the totality of the circumstances when determining whether an emergency existed.

Question 13

[CRIM PRO] • 3 • Fourth Amendment • Challenging Fourth Amendment Violations •

Answer 13

The Fourth Amendment only applies to government action , and only an individual with standing may challenge that action. Individuals have standing when they have a reasonable expectation of privacy in the area or item being searched (ownership or possession is generally sufficient).

Question 14

[CRIM PRO] • 5 • Fifth Amendment • Protection Against Self-Incrimination •

Answer 14

The Fifth Amendment protects against self-incrimination. This right includes a defendants right to refuse to be a witness against herself , and also protects the defendant from any incriminating statements that were made as a result of force or coercion.

Question 15

[CRIM PRO] • 6 • Fifth Amendment • Miranda Warnings •

Answer 15

In order to ensure that suspects are not being compelled to incriminate themselves, officers must provide Miranda warnings before interrogating a suspect in custody. Miranda warnings inform suspects that (1) they have the right to remain silent ; (2) anything they say can be used against them in court; (3) they have the right to talk to an attorney and have one present when they are questioned; AND (4) if they cannot afford an attorney, an attorney will be provided to them. A suspect is in custody when she reasonably believes she is not free to leave the officers control. A suspect is interrogated when she is subject to express questioning OR any communication or conduct by the officer that is likely to elicit a response. When a suspect chooses to invoke a right under Miranda, the right must be invoked clearly and unambiguously. Once a suspect invokes the right to counsel, the police must stop questioning the suspect on ANY charge, until the suspect has spoken with an attorney. If a suspect invokes the right to remain silent, police may later question her IF they first scrupulously honor her right to remain silent.

Question 16

[CRIM PRO] • 1 • Fifth Amendment • Miranda Warnings • Waiver

Answer 16

Miranda rights may be waived either expressly or impliedly, however, the waiver must be made voluntarily AND knowingly and intelligently. The suspect must understand the nature of the right being waived and the consequences for waiving it.

Question 17

[CRIM PRO] • 2 • Fifth Amendment • Miranda Warnings • Exceptions

Answer 17

Miranda does NOT apply to (1) conversations with police informants (incriminating statements made to informants are admissible); (2) standard routine booking questions ; AND (3) when questioning is necessary for public safety.

Question 18

[CRIM PRO] • 2 • Fifth Amendment • Miranda Warnings • Violations

Answer 18

If a suspect is illegally arrested, ALL statements made by the suspect are inadmissible as the fruit of that illegal arrest UNLESS the state can show that the taint of the unlawful arrest has been purged (releasing the suspect would purge any taint).

Non-coerced statements made in violation of a suspects Miranda rights are not admissible at trial as substantive evidence, BUT are admissible for impeachment purposes if the defendant testifies. The fruit of the poisonous tree doctrine does NOT apply to Miranda violations. Coerced statements made by the suspect are never admissible for any purpose.

Question 19

[CRIM PRO] • 5 • Sixth Amendment • Right to Counsel •

Answer 19

Once judicial proceedings have been initiated, a defendant has the right to counsel at all critical stages of litigation. The right to counsel is offense-specific ; it only applies to the offense the defendant has formally been charged with, and does NOT prevent the police from questioning the defendant about unrelated offenses without an attorney. A defendants right to counsel will be violated IF the counsel provides ineffective assistance. To prove ineffective assistance, one must show that (1) the lawyer’s performance fell below an objective standard of reasonableness ; AND (2) a reasonable probability that, but for the lawyers mistakes, the outcome would have been different.

Question 20

[CRIM PRO] • 1 • Sixth Amendment • Waiver of Right to Counsel •

Answer 20

A valid waiver of the right to counsel must be made voluntarily AND knowingly and intelligently. The defendant must understand the nature of the right being waived and the consequences for waiving it.

Question 21

[CRIM PRO] • 1 • Sixth Amendment • Right to Testify •

Answer 21

A defendant has the right to testify on his own behalf.

Question 22

[CRIM PRO] • 2 • Sixth Amendment • Right to Self-Representation •

Answer 22

A defendant has the right to right to represent himself at trial, BUT the right must be assumed knowingly and intelligently. A judge may deny the right to self-representation if the defendant lacks the competence to stand trial OR validly waive the right to counsel.

Question 23

[CRIM PRO] • 1 • Sixth Amendment • Right to Speedy Trial •

Answer 23

A defendant has the right to a speedy trial. To determine whether this right was violated, a court will consider (1) the reason for the delay; (2) whether the defendant objected to the delay; (3) the length of the delay; AND (4) any prejudice the defendant suffered.

Question 24

[CRIM PRO] • 1 • Due Process under the 5th and 14th Amendments • Unnecessarily Suggestive Identifications •

Answer 24

Identifications that are so unnecessarily suggestive as to create a substantial likelihood of misidentification violate a defendants right to due process under the Fifth and Fourteenth Amendments.

Question 25

[CRIM PRO] • 1 • Guilty Pleas • Requirements •

Answer 25

A guilty plea is only valid if it is voluntary AND, at the time the defendant enters a guilty plea, the judge informs the defendant of the following: (1) the nature of the charge; (2) the maximum possible sentence; (3) the mandatory minimum sentence; (4) that the defendant has the right to a jury trial , to confront witnesses , and to be protected against self-incrimination ; AND (5) that those rights will be waived.