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Flashcards in Criminal Procedure Deck (143):
1

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

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.

2

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

1. Privilege against compulsory self-incrimination
2. Prohibition against double jeopardy

3

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

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

4

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

Prohibition against cruel and unusual punishment.

Excessive bail

5

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

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)

6

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



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?

7

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

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?

8

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

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)

9

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

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

Business

10

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

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.

11

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

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)

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?

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)

13

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

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?

14

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

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.

15

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

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.

16

What is the particularity requirement for issuing a search warrant?

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.

17

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

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.)

18

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

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.

19

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

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

20

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

Yes. As long as there is probable cause.

21

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

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)

22

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

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.

23

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

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.

24

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

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

25

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

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

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)?

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.

27

What is the consent exception to the warrant requirement?

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.

28

What is the automobile exception to the warrant requirement?

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.

29

What is the plain view exception to the warrant requirement?

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.

30

What is the inventory exception to a warrant requirement?

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)

31

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

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.

32

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

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

33

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

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

34

When is evidence from a Terry frisk admissible?

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

35

What is the special needs exception to the warrant requirement?

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)

36

What are the requirements governing warrantless public school searches?

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.

37

What are the requirements governing foreign country/border searches?

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

38

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

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).

39

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

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.

40

What are the limitations on exclusion doctrine?

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

41

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

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)

42

Can police make pretextual auto stop? If so when?

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.

43

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

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.

44

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

No, as long as the mistake was reasonable.

45

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

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?

46

When can police make station house detention?

Need full probable cause.

47

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

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

48

What are requirements for wiretapping?

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

49

What are the requirements for eavesdropping?

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

50

What is the law of arrest?

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.

51

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

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

52

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

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).

53

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

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)

54

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

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.

55

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

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.

56

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

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

57

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

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

58

When is a Miranda warning required?

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.

59

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

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.

60

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

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.

61

What is the effect of a Miranda violation?

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

62

What is the public safety exception to Miranda rights?

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

63

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

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

64

How does a defendant waive Miranda right?

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.

65

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

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.

66

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

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

67

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

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.

68

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

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

69

When does the exclusionary rule NOT apply?

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

70

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

Harmless error rule (reasonable doubt)

If habeas proceeding, released if can show error had "substantial and injurious effect or influence"

71

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

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

72

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

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

73

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

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

74

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

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.

75

What is the right to an unbiased judge?

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

76

Must a judge be a lawyer?

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.

77

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

No - DP violation

Unless shackling is justified by concerns re: courtroom security or escape

78

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

DP violation.

79

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

DP violation.

80

Must police preserve all items that might be used as exculpatory

No, but can't have bad faith destruction.

81

When does D NOT have right to jury?

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

82

How many jurors are required by constitution?

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

83

What rights to venire does D have?

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

84

When can peremptory challenges NOT be used?

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.

85

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

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)

86

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

No.

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?

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.

88

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

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

89

When does D have right to counsel?

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.

90

When may defendant waive counsel at trial and defend himself?

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.

91

What is the constitutional protection of effective assistance of counsel?

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

92

What constitutes IAC? (6th Amdt.)

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.

93

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

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.

94

Deportation risk & IAC

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

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?

State provided psychiatrist for the preparation of that defense

96

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

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

97

What is the right to confront witnesses?

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.

98

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

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.

99

What rules govern prior testimonial statements of unavailable witnesses

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)

100

What is the burden of proof in criminal case?

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.

101

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

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

102

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

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.

103

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

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

104

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

Yep.

105

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

Yep. That's not prosecutorial vindictiveness, somehow.

106

What procedural rights does a D have during sentencing?

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.

107

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

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;

108

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

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.

109

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

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.

110

Can a state impose DP for rape or felony murder?

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

111

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

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

112

Can you impose DP on person who is intellectually disabled?

You cannot, 8th Amdt.

113

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

You cannot, 8 Amdt.

114

What are 8th Amdt. requirements surrounding lethal injections?

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

115

When is imprisonment for nonpayment of court fees unconstitutional?

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

116

When must state provide counsel for appeal?

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).

117

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

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

118

What are some prisoners' rights?

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).

119

What is double jeopardy?

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

120

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

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.

121

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

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.

122

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

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.

123

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

They can.

124

What is the separate sovereigns exception to double jeopardy?

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

125

When can prosecution appeal?

Can appeal habeas.

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

126

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

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.

127

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

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.

128

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

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.

129

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

Yes.

130

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

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.

131

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

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

132

What are the rights required in juvenile court proceedings?

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.

133

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

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

134

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

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.

135

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

Only post-charge.

136

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

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

137

What is the exclusionary rule?

Improperly obtained evidence will be inadmissible.

138

What is the community caretaker exception to the warrant requirement?

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

139

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

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

140

What is the scope of curtilage?

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.

141

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

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.

142

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

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.

143

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

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.