Criminal Procedure

Question 1

What are the constitutional protections afforded under the 4th Amdt.?

Answer 1

1. Prohibition against unreasonable searches and seizures
2. Warrant shall not issue without probable cause

The 4th Amdt protects defendant from an unreasonable search by the government in all areas where D has a reasonable expectation of privacy. If he does not have a reasonable expectation, he cannot complain about the reasonableness of the search, no matter how reasonable. If he does have reasonable expectation of privacy, then we reach the merits.

Question 2

What are the constitutional protections afforded under the 5th Amdt.?

Answer 2

1. Privilege against compulsory self-incrimination

2. Prohibition against double jeopardy

Question 3

What are the constitutional protections afforded under the 6th Amdt.?

Answer 3

1. Right to speedy trial
2. Right to public trial
3. Right to trial by jury
4. Right to confront witnesses
5. Right to compulsory process for obtaining witnesses
6. Right of assistance of counsel in felony cases and misdemeanor cases in which imprisonment is imposed

Question 4

What are the constitutional protections afforded under the 8th Amdt.?

Answer 4

Prohibition against cruel and unusual punishment.

Excessive bail

Question 5

What types of government actions constitute a seizure of a person?

Answer 5

When, under the totality of the circumstances, a reasonable person would feel that he was not free to decline officer’s requests or otherwise terminate the encounter (ex. arrest, seizure of persons by gov’t)

Question 6

What are the four global questions that comprise the inquiry in a search and seizure question?

Answer 6

1. Is the search or seizure governed by 4th Amdt?
2. If warrant, was the search and seizure with warrant conducted in conformity with the 4th Amdt.?
3. If no warrant, was the search and seizure without warrant conducted in conformity with the 4th Amdt.?
4. Even if search and seizure was unconstitutional, is evidence gathered nonetheless admissible?

Question 7

What is the test for determining whether a search/seizure is governed by the 4th Amdt?

Answer 7

1. Was it executed by government agent?
2. Was it of an area/item protected by the 4th Amdt?
3. Did government agent either physically intrude into protected area to obtain item, or instead violate the individual’s reasonable expectation of privacy?
4. Did the individual subjected to the search have standing to challenge the search?

Question 8

Who are “government agents” for the purposes of determining whether a search/seizure is governed by the 4th Amdt.?

Answer 8

1. Usually uniformed police officers, either on or off duty.
2. Private security guards but only if they are deputized as officers of the public police.
3. Private citizens acting at directive of police
4. Public school administrators when acting within the scope of their duty (principal, vice principal)

Question 9

What are areas/items protected by the 4th Amdt.?

Answer 9

1. Persons
2. Houses (including hotel rooms, including curtilage)
3. Papers, letters, personal correspondence
4. Personal effects (backpacks, purses, cars, belongings)

Business

Question 10

What are examples of objects held out to the public, where there is no reasonable expectation of privacy?

Answer 10

Mnemonic: Public Observation Generally Obliterates Fourth Amendment Protections

1. Physical characteristics (sound of voice, handwriting)
2. Odors that emanate from car or luggage
3. Garbage (left at curb for collection)
4. Open fields (areas outside curtilage, including barn)
5. Financial records held in a bank
6. Airspace (land visible from public place, even plane or helicopter).
7. Pen registers (devices that list the phone numbers someone has dialed)

Also, paint on the outside of one’s vehicle.

Question 11

How does one determine whether government agent physically intruded/violated expectation of privacy? (For purposes of determining whether 4th Amdt. applies)

Answer 11

Minority: trespass test - physical intrusion into constitutional area in order to obtain information
ex. GPS tracker on car (need a warrant)

Majority: privacy-based test - if agent’s search/seizure of constitutionally protected area violates reasonable expectation of privacy. Requires both:

1. Actual (subjective) expectation of privacy over area searched/item seized AND
2. Privacy expectation is recognized by society as reasonable

Note: on second prong, use of sense-enhancing tech that isn’t in public use to obtain info from inside suspect’s home that otherwise couldn’t be obtained without physical intrusion violates the legitimate expectation of privacy (ex. thermal imaging tech)

Question 12

How does one determine whether an individual has standing to challenge conduct in court, such that the 4th Amdt. will apply to a search or seizure?

Answer 12

Must be the individual’s own constitutional rights that have been infringed - their own property, not third party’s rights. Must have reasonable expectation of privacy in area from which item was seized.

One may not raise a violation of another’s constitutional rights at a suppression hearing.

Ex. own home, overnight guests in general areas of that place.
No standing if using premises solely for business, one-time use.
No standing re: passenger in car, no expectation of privacy.
No standing if you’re validly arrested in your friend’s house with arrest warrant, but the cops didn’t get a search warrant for your friend’s house! (Note, however, if he were an overnight guest, this does constitute privacy interest)

Question 13

What is the test for determining whether a warrant was executed and conducted in conformity with the 4th Amdt.?

Answer 13

1. Was the warrant issued by a neutral and detached magistrate? (conduct must demonstrate bias in favor of prosecution, hard to reach)
2. Was the warrant supported by probable cause and particularity?
3. If not, did the police rely upon the defective warrant in good faith?
4. Was the warrant properly executed by the police?

Question 14

What is the probable cause requirement for issuing a search warrant?

Answer 14

Warrant will only be issued if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officer lays out affidavit establishing the circumstances that enable determination of probable cause.

Probable cause - trustworthy facts, knowledge sufficient for a reasonable person to believe that suspect committed or is committing a crime for which the arrest is authorized by law

Hearsay may be basis of the probable cause.

Question 15

Can informant tips be used to demonstrate probable cause in issuing a warrant?

Answer 15

Yes, if it meets the “totality of circumstances” test. Even if the affidavit doesn’t establish the reliability/credibility of informant, may still be used. “Common sense/practical determination” must be met. This is a fluid and fact-specific test. Factors include: reliability, basis of knowledge, credibility (previously provided good tips, i.e.)

Don’t need to reveal identity of the informant.

Question 16

What is the particularity requirement for issuing a search warrant?

Answer 16

Must describe with reasonable precision the place to be searched and the items to be seized. If it doesn’t, the warrant is unconstitutional, even if the affidavit includes detail.

The entire house - too broad.

Question 17

What is the good faith exception to an otherwise constitutionally deficient search warrant?

Answer 17

Evidence obtained by police in reasonable reliance on a facially valid warrant may be used in prosecution, even if the warrant was not supported by probable cause. (If the police obtained a warrant and it was invalid.)

Question 18

When will a search warrant be held invalid (based on the affidavit supporting it)

Answer 18

1. False statement by affiant (officer applying for warrant);
2. Affiant intentionally/recklessly included the false statement, AND
3. False statement was material to the finding of probable cause.

Question 19

What are the exceptions to application of the “good faith” exception, when analyzing a constitutionally deficient search warrant?

Answer 19

1. If affidavit was so lacking in probable cause that no reasonable officer would have relied upon it
2. If warrant so lacking in particulars that officer could not reasonably presume it valid,
3. If affidavit that the magistrate relied upon included material knowing/reckless falsehoods that were necessary to finding of probable cause
4. If magistrate who issued the warrant is biased in favor of prosecution

Question 20

May a warrant include searching a non-suspect third party?

Answer 20

Yes. As long as there is probable cause.

Question 21

What is the test for determining whether police officers properly executed a warrant?

Answer 21

1. Compliance with the warrant’s terms and limitations (though may detain within premises, just can’t take them away; can’t look for iPad in a wallet)
2. Compliance with “knock and announce” rule (knock, announce purpose, wait reasonable time for admittance)

Question 22

When does a police officer need not comply with the “knock and announce rule” when executing a search warrant?

Answer 22

If the officer reasonably believes that doing so would be:

1. Futile
2. Dangerous, OR
3. Would inhibit the investigation.

And anyways, evidence collected post-failure to knock and announce can still be used.

Question 23

What does a search warrant allow police to do w/r/t persons on the premises?

Answer 23

Can detain occupants during a search.
Cannot search persons found on premises who were not named in warrant.
Cannot follow, stop, detain, or search people who left premises shortly before warrant was executed.

Question 24

What are the major exceptions to the requirement that searches and seizures be conducted pursuant to a warrant? (8)

Answer 24

ESCAPIST mnemonic.

1. Exigent circumstances (evanescent, hot pursuit, emergency aid)
2. Search incident to lawful arrest
3. Consent
4. Automobiles
5. Plain view
6. Inventory
7. Terry Stop and Frisk (lesser intrusion)
8. Special needs doctrine

PLUS

1. Administrative inspections and searches
2. Searches in foreign countries and at the border

Question 25

What are examples of exigent circumstances that allow an officer to conduct a search and seizure without a warrant?

Answer 25

1. Evanescent - may seize evidence likely to disappear before warrant can be obtained (yes to DNA under fingernails; no to drug levels in blood due to enhanced invasion) 2. Hot pursuit - police may even pursue into private dwelling (of suspect or third party - anything found in plain view is admissible) 3. Emergency aid - addressing emergencies that could affect health or safety (objectively reasonable test); injury need not be life threatening

Question 26

What are the requirements imposed upon a search incident to arrest (such that officer is conducting search and seizure without warrant, falling into exception)?

Answer 26

1. Arrest must be lawful/constitutional (based on probable cause) 2. Timing (contemporaneous with arrest) 3. Geographic scope (wingspan, cell phones physically but not the data within, includes passenger cabin of car - even closed containers). You can search anything on the person, doesn't need to be subject to frisk requirements. Automobile - it doesn't matter what the arrest is for. They can then search the area within the immediate control of driver (entire passenger area - unlocked glove compartment, back seat). Once the arrested driver is under complete control (e.g. secured in the squad car), then they can ONLY search when they have reason to believe an item connected to the arrest is still in that automobile. In both situations, may search anywhere within the passenger compartment, but not the trunk. To search the trunk, need another exception (automobile exception, consent, e.g.) Police can also make protective sweep if they believe accomplices may be present.

Question 27

What is the consent exception to the warrant requirement?

Answer 27

1. Must be voluntary (but no need to have knowledge of the right to withhold, and police have no duty to report that). 2. Limited in scope (but generally extends to all areas which reasonable person under circumstances would believe it extends; can say "don't go in my left pocket") 3. Person must have apparent authority to consent (apparent equal right to use or occupy the property; note here that if suspect grants consent but doesn't actually have it, OK as long as police reasonably believed person had consent! 4. Comports with shared premises rules (When adults share residence, any adult can consent anywhere within. However, cannot give valid consent when co-occupant is present and objects to search; however, if co-occupant objected and is removed, can act on the consent of the remaining occupant even if that person already voiced their objection) Note: a parent who has access to the whole house can consent to the child's room Note: 4 only applies to rooms within the house. W/r/t a locked chest within a room that is not the consentor's, then clearly shows that the exclusive right did not belong to consentor and that person did not have authority to consent.

Question 28

What is the automobile exception to the warrant requirement?

Answer 28

Note: there can be cars involved in the other exceptions! Don't reflexively assume that if a car is mentioned, this exception is implicated. Does not eliminate the need for probable cause. Standard: if police have probable cause to believe that vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain an item for which they had probable cause to search. * can search passenger belongings (not just driver) * if probable cause based on container in vehicle, can only search the container. * YOU can look ANYWHERE, including the trunk! Probable cause need not exist at start of auto stop. It can be acquired at any time before initiating a search (after running the plates, i.e.) IF warrantless search is valid, can tow the vehicle to station and search it later. If police believe the auto itself is contraband, can seize from public place without warrant. Note: can look in anything that might contain evidence.

Question 29

What is the plain view exception to the warrant requirement?

Answer 29

Police may make warrantless seizure when they: 1. Lawful access to the place from which item can be plainly seen 2. Lawful access to item itself 3. Criminality of item must be immediately apparent If police are conducting a legitimate search for item X but come across another illegal item, they can always seize them whether or not they were searching for them.

Question 30

What is the inventory exception to a warrant requirement?

Answer 30

At police station, police may make inventory search of arrestee's belongings, pursuant to police policy. May also make inventory search of an impounded vehicle. Provided: 1. Regulations governing inventory search reasonable in scope 2. Search itself complies with those regs 3. Search conducted in good faith (motivated solely by need to safeguard possessions and ensure officer safety - subjective)

Question 31

What is the Terry stop and frisk exception to a warrant requirement?

Answer 31

Police officer may stop a person without probable cause if has articulable and reasonable suspicion of criminal activity. May require detainee to state name, and if reasonably believes person may be armed and presently dangerous, may conduct a protective frisk. Reasonable suspicion is objective standard, not at all subjective. Anything observed during stop and frisk, including through touch, is fair game. If stop and frisk was OK, anything of illegal nature that they observed can be seized.

Question 32

What is the threshold question for whether someone is seized for purposes of 4th Amdt.?

Answer 32

Totality of circumstances, whether they felt free to leave or decline to answer questions 1. Tone and demeanor of officer 2. Whether individual was told had right to refuse consent 3. When pursued, if stops and submits to authority or is restrained by officer

Question 33

What is the permissible scope of a frisk in Terry stop and frisk (exception to warrant requirement)

Answer 33

Limited to a check for weapons, but if you find something else that upon plain feel is contraband, can seize that. Scope of intrusion: patdown of outer clothing, unless specific info that a weapon is hiding. May order occupants out of a stopped vehicle and frisk them and search passenger compartment if reasonable belief that they are dangerous. Dog sniffs are OK so long as it doesn't prolong a stop unreasonably. May also make a sweep for confederates

Question 34

When is evidence from a Terry frisk admissible?

Answer 34

Evidence is admissible from a pat down if seized based on "plain feel" that it was a weapon or contraband, and without manipulating it.

Question 35

What is the special needs exception to the warrant requirement?

Answer 35

Sometimes a search will be reasonable even if suspicious-less. Usually for special needs of school or government officials. Justification is that government has heightened need, and person being searched should have diminished expectation of privacy. Some of these include: 1. Administrative searches to seize spoiled/contaminated food 2. Administrative searches of a business within highly regulated industry 3. Searches of prisoners before gen pop entry 4. Searches of airline passengers prior to boarding 5. Searches of parolees and their homes as long as there is a statute so authorizing the searches 6. Searches of gov't employee desk and file cabinets when scope is reasonable and there is work-related need/reasonable suspicion of work-related misconduct 7. Drug test of railroad employees in accident 8. Drug test of people seeking customs employment in positions connected to drug interdiction 9. Drug test of public school students participating in extracurriculars 10. Some other public school searches DOES NOT INCLUDE law enforcement programs whose primary purpose is to do general evidence gathering (narcotics stop points)

Question 36

What are the requirements governing warrantless public school searches?

Answer 36

Public school officials don't need a warrant to search students, provided they have reasonable grounds for the search. Reasonable only if: (1) moderate chance of finding evidence of wrongdoing, (2) measures to carry out search are reasonably related to objectives of search, and (3) search is not excessively intrusive based on age/sex of student, nature of infraction Note that probable cause is not required.

Question 37

What are the requirements governing foreign country/border searches?

Answer 37

4th Amdt. doesn't apply to US officials conducting searches outside the US. 1. If on border - roving patrols may stop even if only officer "reasonably suspects" that there are "illegal aliens," and may stop at a fixed checkpoint. Can disassemble vehicle even without reasonable suspicion. Even illegally obtained evidence can be used in civil deportation hearing. Can do factory survey of work. 2. International mail - can search w/ reasonable suspicion that it contains contraband. 3. Detentions - if reasonable suspicion of smuggling contraband, may detain

Question 38

What are the rules governing the establishment of police checkpoints on roads?

Answer 38

Can set up road blocks to stops cars without individualized suspicion, when: 1. Stopped on basis of neutral, articulable standard (every car) 2. Designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility (drunk drivers OK; narcotics are not).

Question 39

If evidence is obtained as part of an unconstitutional search or seizure, may it nonetheless be admissible? If so, when?

Answer 39

The exclusion doctrine used to provide greater protections (can't admit evidence when part of unconstitutional search and seizure). However, many exceptions to the exclusion doctrine over the years. The remedy of suppressing the (unconstitutional) evidence will not be granted when: 1. Police in good faith believed the warrant was valid 2. Evidence is used at proceeding other than trial on merits (grand jury proceeding, preliminary hearing) 3. When the evidence is used to impeach the defendant, who has testified.

Question 40

What are the limitations on exclusion doctrine?

Answer 40

Evidence that was part of an unconstitutional search and seizure may still be admitted into evidence if: 1. Can be used to impeach D testimony on cross, just can't be used as evidence in prosecutorial case in chief; 2. Failure to comply with knock and announce requirement doesn't mean evidence will be inadmissible; 3. Erroneous police conduct must be reckless, deliberate, or grossly negligent (criminal negligence not tort) 4. Officer can make reasonable mistake when executing a search warrant, and the evidence obtained during that reasonable mistake will be admissible. 5. Fruit of poisonous tree exception

Question 41

What is the fruit of the poisonous tree/derivative evidence rule?

Answer 41

Evidence obtained after unconstitutional violation = fruit of poisonous tree. Generally, this is inadmissible unless prosecutors can show break in causal link through: 1. Independent source 2. Inevitable discovery 3. Attenuation ("purges the taint" through time and intervening events, restores D's free will)

Question 42

Can police make pretextual auto stop? If so when?

Answer 42

Yes - if the police have probable cause to believe a driver violated a traffic law, may stop the car even if ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.

Question 43

May police order occupants out of car after lawfully stopping vehicle?

Answer 43

Yes - in the interest of officer safety. And if he reasonably believes them to be armed, he may frisk them and search the passenger compartments for weapons.

Question 44

Will a police officer's mistake of law invalidate a seizure (in automobile stop)?

Answer 44

No, as long as the mistake was reasonable.

Question 45

May police detain a suspect in order to obtain a warrant?

Answer 45

Yes, if they reasonably believe suspect hid drugs in home, may prevent him from going into home unaccompanied so doesn't destroy drugs while they get a search warrant?

Question 46

When can police make station house detention?

Answer 46

Need full probable cause.

Question 47

When can officer use deadly force to apprehend a suspect? (this constitutes a 4th Amdt. seizure)

Answer 47

Can't unless reasonable to do so under the circumstances (suspect poses danger to own life or life of others)

Question 48

What are requirements for wiretapping?

Answer 48

This constitutes a search for 4th Amdt purposes. A valid warrant may be issued if: 1. Probable cause 2. Suspected persons involved in conversations to be overheard are named 3. Warrant describes type of convo with particularly 4. Wiretap limited to short period of time 5. Wiretap terminated when desired info was obtained 6. Return made to court, showing what convo was intercepted

Question 49

What are the requirements for eavesdropping?

Answer 49

If you speak to someone who agreed to a wiretap or electronic monitoring, no 4th Amdt. claim.

Question 50

What is the law of arrest?

Answer 50

When police take someone into custody, must be for 1. Interrogation or 2. Prosecution It is considered de facto arrest when police ask someone to come in for fingerprinting or questioning Standard of proof needed for an arrest: probable cause It's OK to arrest someone for any offense, even if the penalty is only a fine.

Question 51

When does police officer need an arrest warrant? When does police officer NOT need arrest warrant?

Answer 51

Don't need arrest warrant in public place, provided probable cause. Need a warrant to arrest someone in their home, unless emergency. Need an arrest warrant and a search warrant if they want to arrest someone in third party's home

Question 52

What are the three constitutional challenges a D can bring to suppress a confession?

Answer 52

1. Miranda was not complied with 2. Confession was involuntary 3. Product of an illegal arrest 14th Amdt - due process (must be voluntary; but if involuntary confession, harmless error test - overwhelming evidence of guilt) 6th Amdt - right to counsel (after judicial proceedings have begun, can't elicit incriminating statement after D charged) 5th Amdt - Miranda right (person in custody must, prior to interrogation, be informed of right to remain silent, anything said can be used against in court, attorney right, attorney appointed if indigent) Exam analysis: 1. Start with the assumption that a confession is admissible. 2. If wants to keep it out, must allege a constitutional violation whose remedy is to suppress the confession (three: (a) involuntary confession, (b) confession that violate Miranda, (c) confession that violate right to counsel).

Question 53

What is the standard for a 14th Amdt. challenge made by D to suppress a confession?

Answer 53

Involuntary confession. TEST: totality of the circumstances. Will be deemed involuntary if confession made as product of police coercion that overbears suspect's will. If involuntary confession, cannot use as part of case in chief. If witness tells a different story after taking the stand, prosecution cannot impeach for PIS. Even if involuntary confession, will be admissible if passes the harmless error test (overwhelming evidence of guilt)

Question 54

What are requirements governing the 6th Amdt right to counsel?

Answer 54

Precludes officers from deliberately eliciting incriminating statement from D outside presence of counsel after D formally charged, unless waived right to counsel. Does not apply to questioning on other offenses - unrelated, uncharged ones (standard: does each require proof of additional element the other crime doe snot require) Waiver only if D "knowingly, voluntarily" waives. Remedy: if at non-trial proceedings, apply harmless error. If entitled to lawyer at trial and didn't get one, automatically reverses conviction. Prosecution can still use these unconstitutionally obtained incriminating statements (e.g. confession) to impeach defendant's contrary trial testimony. This can be in its case in chief.

Question 55

At what pre-trial stages does the 6th Amdt right to counsel not attach?

Answer 55

1. Taking blood samples 2. Taking handwriting/voice exemplars 3. Preliminary hearing determining probable cause to detain (but does apply in determining whether to prosecute) 4. Photo IDs or pre-charge investigative line-ups Formal charge - indictment by grand jury or charging papers by prosecutor. Anything after that must be through counsel.

Question 56

At what post-trial stages does the 6th Amdt right to counsel not attach?

Answer 56

1. Discretionary appeals (except those resulting from nolo or guilty pleas) 2. Post-conviction proceedings 3. Parole and probation revocation

Question 57

What are the 4 core Miranda warnings that compose the 5th Amdt privilege against compelled self-incrimination?

Answer 57

1. Right to remain silent 2. Anything say can be used against in court 3. Right to presence of attorney 4. If cannot afford attorney, one will be provided

Question 58

When is a Miranda warning required?

Answer 58

Anyone prior to interrogation, in custody of government and accused of crime: 1. Custody 2. Interrogation Generally only if detainee knows being interrogated by government agent. Doesn't apply to uncharged subpoena'd witness at grand jury. Even after arrested, if never interrogated, doesn't need to be Mirandized.

Question 59

What is the test for determining whether an individual was in government custody, for purposes of the 5th Amdt privilege against self-incrimination?

Answer 59

Custody determination: 1. Would reasonable person feel free to terminate and leave? 2. Same inherently coercive pressures as type of station house questioning (i.e. your bed at 4 a.m.) The more constrained they feel, the more likely it will be custody.

Question 60

What is the test for determining whether an individual was subject to government interrogation, for Miranda purposes?

Answer 60

Any words or conduct by police that they should know would likely elicit a response. Not required before spontaneous statements. Routine booking questions don't count. A cop acting as a cell-mate doesn't count.

Question 61

What is the effect of a Miranda violation?

Answer 61

Generally, evidence obtained (i.e. confession) in violation of Miranda is inadmissible, unless: 1. Used to impeach defendant trial testimony, under theory of prior inconsistent statement 2. if original unwarned questioning seemed unplanned and failure to give Miranda warning seemed inadvertent (i.e. questioing pre-Miranda led to confession, D confessed, then Mirandized, then subsequent proper questioning elicited confession). Cops get a second bite! 3. Nontestimonial fruits of unwarned confession (suppressed if the failure to give warning was not purposeful) (ex. Jim tells where gun is, police get gun, gun stays in) If the police obtain an unwarned confession, warn the suspect, and then requestion the subject in a question-first-warn-later scheme, both should be suppressed. However, if the unwarned questioning and warned questioning are part of a separate scheme, the warned questioning scheme doesn't need to be suppressed

Question 62

What is the public safety exception to Miranda rights?

Answer 62

OK when reasonably prompted by concern for public safety; but once you get out the public safety-related questions, must then Mirandize

Question 63

What are defendant's options, once have been Mirandized?

Answer 63

1. Do nothing (police may continue to question) 2. Waive rights 3. Invoke right to remain silent 4. Invoke right to counsel

Question 64

How does a defendant waive Miranda right?

Answer 64

Prosecution must show by preponderance of the evidence that the waiver was knowing and voluntary. Test is based on totality of circumstances. Voluntary - not subject to police coercion. Does not need to be express - if D keeps talking, will probably be a waiver.

Question 65

How can defendant invoke right to remain silence, and what are police obligations once defendant has done so?

Answer 65

Must be explicit, unambiguous, unequivocal (failure to answer does not count). Later questioning can occur on unrelated crime. But police must honor by not badgering.

Question 66

How can defendant invoke right to counsel? What are police obligations once defendant has done so?

Answer 66

If detainee unambiguously indicates wants attorney, all questioning must cease unless: 1. Defendant resumes answering questions, 2. Is released and 14 days have passed. Request has to be specific. You can't give counsel consult and then resume questioning without attorney. Test: reasonable officer in that situation would have inferred invocation of right

Question 67

When can defendant challenge a pre-trial identification (lineup, showup, photo array)

Answer 67

1. 6th Amdt right to counsel only if it's a post-charge ID? 2. Due process - only if ID is unnecessarily suggestive and creates substantial likelihood of misidentification Remedy: exclusion of the in-court ID.

Question 68

If an unconstitutional identification has been obtained, may witness still make in-court identification? If so, when?

Answer 68

If in-court identification has independent source (i.e. opportunity to observe at the time of the crime), then OK.

Question 69

When does the exclusionary rule NOT apply?

Answer 69

1. Grand juries, civil proceedings, violations of state law, internal agency rules, parole revocation proceedings. 2. Good faith reliance on law, defective search warrant, clerical error 3. Use of excluded evidence for impeachment 4. Knock and announce violations

Question 70

What is the standard for overturning a conviction on appeal, if illegal evidence is admitted during trial?

Answer 70

Harmless error rule (reasonable doubt) If habeas proceeding, released if can show error had "substantial and injurious effect or influence"

Question 71

What is the defendant's remedy for excessive pretrial publicity?

Answer 71

If it's prejudicial to D, may require change of venue or a retrial.

Question 72

What are the order of arguments, under basic rights to fair trial?

Answer 72

Trial begins with opening argument of prosecution, followed by defense opening arguments. Closing arguments proceed with prosecution, defense, government rebuttal

Question 73

What is the right to a public trial, in the context of a trial itself?

Answer 73

6th and 4th Amdt. both guarantee. The right varies depending on the proceeding. At trial, press and public have 1st Amdt. right to attend the trial itself, even if the trial is stipulated closed. State may permit television of proceedings over D objection

Question 74

What is the right to a public trial, in the context of pretrial proceedings?

Answer 74

Presumptively open to public and press: preliminary probable cause hearings, pretrial suppression hearings (unless party seeking closure has overriding interest likely to be prejudiced by disclosure, and it's the only reasonable option). Courts should make "every reasonable effort" to accommodate public attendance at jury voir dire.

Question 75

What is the right to an unbiased judge?

Answer 75

Due process violated if judge shows actual malice against D or has financial interest in trial result in guilty verdict

Question 76

Must a judge be a lawyer?

Answer 76

No - if misdemeanor, if upon conviction D has a right to trial de novo in a court with lawyer-judge. Serious crimes - probably needs to be a lawyer.

Question 77

Can the state compel D to stand trial in prison clothing, or if visibly shackled?

Answer 77

No - DP violation Unless shackling is justified by concerns re: courtroom security or escape

Question 78

What is D recourse if trial is conducted in manner making it unlikely the jury gave reasonable consideration?

Answer 78

DP violation.

Question 79

What is D recourse if jury is exposed to influence favorable to prosecution?

Answer 79

DP violation.

Question 80

Must police preserve all items that might be used as exculpatory

Answer 80

No, but can't have bad faith destruction.

Question 81

When does D NOT have right to jury?

Answer 81

1. Petty offenses (6 months or less in possible maximum sentence) 2. Juvenile delinquency proceedings 3. Civil contempt proceedings 4. Criminal contempt proceedings with cumulative penalties totaling 6 months or less (or if judge summarily imposes contempt punishment during trial itself) 6. Placing contemnor on probation for 5 or fewer years, as long as revocation wouldn't result in prison for more than 6 months

Question 82

How many jurors are required by constitution?

Answer 82

6. If only 6, need unanimous decision. 5/6 will not get job done.

Question 83

What rights to venire does D have?

Answer 83

Right to have jury selected from representative cross-section of community. Need only show underrepresentation of a distinct and numerically significant group in venire to show jury right violated. Particular defendant doesn't have the right to proportional representation of all groups in his own particular jury though

Question 84

When can peremptory challenges NOT be used?

Answer 84

Prosecutor can use for any reason generally. However, EP forbids use of peremptory challenges to exclude solely based on race or gender. TO make out Batson: 1. Facts or circumstances that raise an inference that the exclusion was based on gender. 2. Prosecutor must then come up with race-neutral explanation for the strike (even if it's not reasonable) 3. Judge then decides whether it was pretextual or genuine reason given. If judge believes prosecution was sincere, may uphold.

Question 85

What rights are conferred in the right to an impartial jury?

Answer 85

1. Right to voir dire questioning specifically on racial prejudice whenever race is involved, or accused of interracial capital crime 2. In death penalty case, state can't auto exclude someone who expresses doubt/scruple re: death penalty (test: whether it would prevent/substantially impair performance of duties). If juror improperly excluded, automatic reversal of death sentence. 3. Juror favoring death penalty - voir dire, defendant must be able to ask jurors if they would auto give DP upon guilty verdict. IF yes, must be excluded (b/c can't accurately assess mitigating factors)

Question 86

Are inconsistent verdicts reviewable (e.g. finding D1 guilty and D2 not guilty)?

Answer 86

No.

Question 87

Who decides if a D should be subject to a statutory law where a sentence may be increased beyond statutory maximum if additional facts are proved?

Answer 87

Facts must be submitted to the jury and proved beyond a reasonable doubt. This also goes for statutory fines and setting the amount on fines. It also applies to sentencing enhancements after a guilty plea. Test on appeal: harmless error.

Question 88

Who may decide whether sentences for multiple crimes run consecutively or concurrently?

Answer 88

State legislature may delegate to the judge, even though this is based on factual determination.

Question 89

When does D have right to counsel?

Answer 89

1. In felony cases 2. In misdemeanor cases only if imprisonment is actually imposed (ex. non-felony, D refused counsel, D convicted, doesn't get sentenced - no violation) Not on appeal Court can refuse to provide counsel to indigent accused of misdemeanor. But if she is found guilty, she can't be imprisoned; can only be fined.

Question 90

When may defendant waive counsel at trial and defend himself?

Answer 90

If in the judgment of judge his waiver is knowing and intelligent, based on trial judge consideration of emotional and psychological state, and he is competent to proceed pro se.

Question 91

What is the constitutional protection of effective assistance of counsel?

Answer 91

6th Amdt. right. Extends to first appeal. Effective assistance generally presumed.

Question 92

What constitutes IAC? (6th Amdt.)

Answer 92

1. Deficient performance by counsel 2. But for deficiency, result of proceeding would have been different. Must have specific deficiencies. Can't be based on: experience, lack of time, gravity of charges, complexity of defense, accessibility of witnesses to counsel.

Question 93

What constitutes IAC in a plea bargain case? (6th Amdt.)

Answer 93

Deficient performance and reasonable possibility that outcome would have been different with competent advice. 1. Had plea agreement been communicated, he likely would have accepted. 2. Plea would have been entered without prosecutor canceling it. If D subsequently had a fair trial after turning down plea offer based on IAC, still has an IAC claim.

Question 94

Deportation risk & IAC

Answer 94

Must inform client whether plea carries a risk of deportation (Padilla)

Question 95

What right does a defendant have, when he has made a preliminary showing he is likely going to be able to use insanity defense?

Answer 95

State provided psychiatrist for the preparation of that defense

Question 96

Does a defendant have a right to consult with attorney during testimony?

Answer 96

No, and may even be sequestered from attorney during short breaks.

Question 97

What is the right to confront witnesses?

Answer 97

6th Amdt. grant. Right is not absolute - doesn't need to be face-to-face (e.g. child witnesses). Judge can remove a disruptive D, D may voluntarily leave courtroom.

Question 98

What are the rules governing the introduction of a co-defendant's confession, when the confession implicates another defendant?

Answer 98

Confrontation clause prohibits use, even where the confession interlocks with D's own confession, which is admitted. However, may be admitted if: 1. All portions referring to other defendant can be eliminated 2. Confessing D takes the stand, subjects himself to X-ex, OR 3. Confession of non-testifying co-D is only being used to rebut D's claim that his confession was obtained coercively.

Question 99

What rules govern prior testimonial statements of unavailable witnesses

Answer 99

Confrontation Clause violation to use prior testimonial evidence unless (1) declarant unavailable, and (2) D had opportunity to X declarant when statement made. Testimonial statement: preliminary hearing, grand jury hearing, formal trial, police interrogation conducted to establish past acts, results of forensic lab testing offered for proof of matter asserted Not testimonial: statements from interrogations intended to aid police in responding to an ongoing emergency (ex. 911 operator)

Question 100

What is the burden of proof in criminal case?

Answer 100

The state much prove each element of the crime charged beyond a reasonable doubt. Elements: behavior, mental state, and any result that might be required by the definition of that crime. If the defense is that one of the elements has not been established, then defendant must only raise reasonable doubt. For all other defenses, state can require the defense to establish the defense by a preponderance of the evidence (if it wants to). If BOP unconstitutionally shifted, 14th Amdt. violation (as to every element). Question will be in the context of jury instruction.

Question 101

When must judge give jury instruction provided by D/P?

Answer 101

If instruction is correct, has not already been given, and is supported by some evidence.

Question 102

What requirements are included in a plea deal, in judicial determination of D's plea being voluntary and intelligent?

Answer 102

On the record, colloquy must ensure that D understands: Nature of charge and crucial elements thereunder Maximum possible penalty, mandatory minimum Right to not plead guilty, fact that guilty plea waives trial right Attorney may inform D instead of judge if record reflects that. Remedy: withdrawal attack and pleading anew.

Question 103

When may a plea be set aside after sentence (collateral attack)?

Answer 103

1. Involuntariness (didn't meet colloquy reqs) 2. Lack of jurisdiction 3. IAC 4. Failure to keep the plea bargain.

Question 104

May a prosecutor threaten to charge D with a more serious crime if he does not plead?

Answer 104

Yep.

Question 105

May a prosecutor charge a more serious offense if a D doesn't accept a plea, and demands a jury trial.

Answer 105

Yep. That's not prosecutorial vindictiveness, somehow.

Question 106

What procedural rights does a D have during sentencing?

Answer 106

Right to counsel. No right to confrontation or cross (so sentence may be based on hearsay or uncrossed reports) BUT if a magnified sentence is based on a statute that requires new findings of fact to be made (ex. re: mental illness of D), then you get the right to confrontation. Right enhanced in capital sentencing.

Question 107

What must a judge do if he imposes a harsher sentence on a D who successfully appealed first conviction, which carried lighter sentence?

Answer 107

Judge must set forth his reasons for harsher sentence, to ensure that D isn't vindictively punished for exercising right to appeal. Exception: 1. In a state that uses jury sentencing, unless second jury was told of first conviction's sentence;

Question 108

What is cruel and unusual punishment, for purposes of an 8th AMdt. violation?

Answer 108

Penalty that is grossly disproportionate to the seriousness of the offense committed. State appellate courts do not have to compare death sentence imposed in a case under appeal with other penalties imposed in similar cases.

Question 109

What are the 8th Amdt. requirements on the imposition of the death penalty?

Answer 109

1. Can be imposed only under scheme that gives judge or jury reasonable discretion, full information, and guidance. 2. Statute cannot be vague. 3. Must allow sentencing body to consider all mitigating evidence 4. If sentence based partly on the aggravating factor of defendant's prior conviction, sentence must be reversed if the prior conviction is invalidated. 5. A death sentence affected by vague or otherwise unconstitutional factors can be upheld, if all aggravating/mitigating factors are reweighed, and death still found appropriate.

Question 110

Can a state impose DP for rape or felony murder?

Answer 110

No, that violates 8th Amdt, if it was not intended to or did not result in death

Question 111

What is the sanity requirement for DP imposition, under 8th Amdt.

Answer 111

Can't execute someone currently insane, even if sane when crime was committed.

Question 112

Can you impose DP on person who is intellectually disabled?

Answer 112

You cannot, 8th Amdt.

Question 113

Can you impose DP or LWOP on person under 18 at time committed crime?

Answer 113

You cannot, 8 Amdt.

Question 114

What are 8th Amdt. requirements surrounding lethal injections?

Answer 114

The possibility that the drug protocol MIGHT be administered improperly does not make procedure cruel & unusual, will be C&U only if can prove: 1. serious risk of inflicting unnecessary pain, or 2. alternative procedure is feasible, readily implementable, significantly reduces substantial risk of severe pain

Question 115

When is imprisonment for nonpayment of court fees unconstitutional?

Answer 115

It's impermissibly discriminatory under EP when aggregate imprisonment exceeds maximum statutory sentence, due directly to involuntary nonpayment of a fine or court cost.

Question 116

When must state provide counsel for appeal?

Answer 116

If an avenue of post-conviction review is provided, can't make review less accessible to the poor. Thus, must be given counsel at state expense during first appeal granted as matter of right, and also for appeals of guilty pleas/nolo. No right to counsel in a habeas proceeding (BOP = preponderance of evidence that detention is unlawful).

Question 117

When is there a right to counsel at parole and probation revocation?

Answer 117

If it also involves the imposition of a new sentence. If after a revocation, an already imposed sentence springs into application/parole revocation is involved, only have a right to counsel if representation is necessary to a fair hearing

Question 118

What are some prisoners' rights?

Answer 118

1. Due process - no "atypical and significant hardship" 2. No 4th Amdt (no expectation of privacy, can have shit searched) 3. Right of reasonable access to courts 4. 1st Amdt may be burdened by regulations "reasonably related to penological interests" (can regulate incoming mail, but not outgoing). Can't interfere with prisoner religious practice absent compelling interest. 5. Right to adequate medical care (8th Amdt).

Question 119

What is double jeopardy?

Answer 119

Can't be retried for the same offense once jeopardy has attached. Double jeopardy attaches at the moment when the jury is sworn in. In bench trial, it attaches when the first witness on the issue of guilt is sworn in. - Can't have juvenile proceeding and then subsequent state proceeding - Usually doesn't attach in civil proceedings other than juvenile court

Question 120

What are the double jeopardy exceptions, permitting retrial of a defendant even if jeopardy has attached?

Answer 120

Retrial if: 1. First trial ended in a hung jury 2. If there was a manifest necessity to abort the original trial (if there was a mistrial that wasn't a result of prosecutorial misconduct) 3. If a D successfully appealed conviction, unless ground for reversal was insufficient evidence to support guilty verdict (retrial if there's a question of the weight of evidence). On retrial, cannot be tried for a greater offense than that which he was convicted of. 4. If D breaches plea bargain.

Question 121

How is "same offense" defined for purposes of double jeopardy?

Answer 121

Two crimes are not the same offense if each one requires proof of a fact that the other does not. (Blockburger test) Ex. A, B, X vs. A, B, C - no double jeopardy. Lesser included offenses constitute double jeopardy. BUT can still have multiple punishments if legislative intent to have cumulative punishments.

Question 122

What is the exception to barring prosecution for a greater offense after already prosecuting for a lesser included offense?

Answer 122

If the unlawful conduct that is subsequently used to prove the greater offense (1) has not occurred at time of prosecution for the lesser offense, (2) wasn't discovered despite due diligence. Can retry for murder if victim dies after a battery charge.

Question 123

May a state continue to prosecute a charged offense, despite a defendant's guilty plea to a lesser included offense?

Answer 123

They can.

Question 124

What is the separate sovereigns exception to double jeopardy?

Answer 124

DJ does not apply to trials by separate sovereigns. | Ex. different states, state and federal government.

Question 125

When can prosecution appeal?

Answer 125

Can appeal habeas. Prosecution may appeal any dismissal on D's motion that doesn't constitute acquittal on the merits.

Question 126

When may the 5th Amdt. privilege against self incrimination be involved?

Answer 126

Whenever response might furnish a link in the chain of evidence needed to prosecute. Must be claimed in civil proceeding if you want to use it later in a criminal one.

Question 127

What is the method for invoking the 5th Amdt. privilege against self incrimination?

Answer 127

Criminal defendant has a right not to take witness stand at trial, and not be asked to do so. Otherwise, privilege doesn't permit person to avoid being sworn in, but rather they must specifically invoke it. Being required to provide name during Terry stop doesn't violate 5th Amdt. because it doesn't generally pose danger of incrimination.

Question 128

What is the scope of the 5th Amdt. privilege against self-incrimination?

Answer 128

1. Testimonial but NOT physical evidence (ex. state may compel a handwriting exemplar) 2. Compulsory production of documents (note: if produced writing of own free will, not protected) 3. Seizure of incriminating documents Violation occurs only when statements are used against them in a criminal case.

Question 129

If a defendant remains silent before Mirandized, can that be used against him?

Answer 129

Yes.

Question 130

Can a prosecutor ever comment on D's failure to testify? (5th Amdt.)

Answer 130

Yes, if the comment is in response to defense counsel asserting that the defendant wasn't allowed to explain his side of the story. If in other circumstances, appeal is harmless error test.

Question 131

If granted immunity from prosecution and compelled to answer questions, can W ever be prosecuted for testimony given?

Answer 131

Yes, if passes the "use and derivative use test" -- if prosecutor shows that the evidence to be used was derived from a source independent of the immunized testimony

Question 132

What are the rights required in juvenile court proceedings?

Answer 132

1. written notice of charges 2. assistance of counsel 3. opportunity to confront & cross-examine witnesses 4. right not to testify 5. right to have guilt established by proof beyond reasonable doubt. Pretrial detention OK if serious risk; no right to trial by jury.

Question 133

What rights do persons whose interest in property would be lost by forfeiture have?

Answer 133

1. Right to pre-seizure notice and hearing (real property only, unless gov't can prove exigent circumstances) 2. 8th Amdt if penal forfeitures (forfeiture is excessive if it is grossly disproportionate to the gravity of the offense) (Excessive Fines Clause) - does not apply to civil in rem forfeitures, monetary forfeitures. 3. Do NOT get the due process right to provide "innocent owner defense" when innocent owner voluntarily entrusted property to wrongdoer

Question 134

If a defendant invokes Miranda, may the police reinitiate questioning? If so, when?

Answer 134

They must "scrupulously honor" the defendant's invocation. This means they cannot badger the defendant. If they wait a "significant" period of time, they can recommence an interrogation.

Question 135

When does a right to counsel attach in a line-up?

Answer 135

Only post-charge.

Question 136

Can D's grand jury testimony later be used against them, or is that a 5th Amdt. violation?

Answer 136

Can be used against them, no violation. This is because at grand jury, D can refuse to answer grand jury questions on 5th Amendment grounds. If he agreed to answer them, he waived his 5th Amdt. right

Question 137

What is the exclusionary rule?

Answer 137

Improperly obtained evidence will be inadmissible.

Question 138

What is the community caretaker exception to the warrant requirement?

Answer 138

Applies when police are acting to protect a person from imminent physical harm, don't need an arrest warrant.

Question 139

When will an informant's tip be sufficient to stop and frisk a suspect?

Answer 139

An anonymous tip, without more, ins insufficient to stop and frisk a suspect. When the source of suspicion is informant tip, it must be accompanied by indicia of reliability

Question 140

What is the scope of curtilage?

Answer 140

Like basically 10-15 feet. It's NOT private property field, forest, even if the cops cut through barbed wire! Wow! Greenhouse attached to the home would be curtilage. You would need warrant or an exception (incident to arrest, automobile, plain view, consent, stop and frisk, emergency). Therefore, no warrant requirement to search that area. Meanwhile, all evidence obtained through those activities could be the valid basis for a valid search warrant. You can do a flyover to gather evidence in open fields.

Question 141

Under Miranda, must arresting officer inform defendant of the possible charges that may be brought?

Answer 141

Nope. Ex. arrest someone for the hit and run. Turns out that kid dies, now it's IVM. You don't have to tell that the kid died.

Question 142

What is the scope of a post-charge lineup right to counsel attach?

Answer 142

As soon as the accused is within sight of a potential identification witness. The attorney must be present right when it commences. Once the government has initiated adversary judicial criminal proceedings, the presence of counsel is a prerequisite to the conduct of a lineup. The government has an affirmative obligation to ensure this.

Question 143

If police have a valid search warrant and they knock and announce, may they then forcibly answer if no answer?

Answer 143

No - that's a violation of the 4th Amdt, as applied to the states through the 14th Amdt. Absent an emergency or exigent circumstances, officers may not forcibly enter. Searches of a home without a warrant are presumptively unreasonable.