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Flashcards in Criminal Procedure Deck (78):

What are the key amendments for CRIM PRO

4th, 5th, 6th, 8th


what is the significance of 4th amendment?

the prohibition against unreasonable search and seizure


what is the significance of the 5th amendment?

Privilege against self incrimination (Miranda) and prohibition against Double Jeopardy


what is the significance 6th amendment

Right to a speedy trial, right to a trial by jury, right to confront witnesses, right to assistance of counsel.


what is the exclusionary rule

the victim of illegal search or a coerced confession can have the product of that illegal search excluded from any subsequent criminal prosecution.


does exclusion apply to grand jury, civil and parole proceedings?



does the exclusion rule apply for the impeachment purposes?



What is the fruit of the poisonous tree doctine?

excludes illegally seized evidence and also all evidence obtained or derived from the police illegality.


does the fruit of poisonous tree apply to miranda violations?



what are the three ways that the government can break the chain between an original, unlawful police action and supposedly derived piece of evidence?

1. independent source for that evidence, independent of that police illegality, 2. inevitable discovery: the police would have inevitably discovered this evidence anyway. 3. intervening acts of freewill on the part of the Defendant.


Will a conviction be overturned because of improperly obtained evidence was admitted at trial?

No. court will apply the harmless error test. a conviction will be upheld if the conviction would have resulted despite the improper evidence.


what does the fourth amendment protect?

protects from unreasonable searches and seizures.


what must as an arrest be made on?

probable cause.


Does a non-emergency arrest of an individual in his home require a warrant?

yes it does.


what does the police need to arrest you and compel you to come ot the police station for finger printing or interrogation?

probable cause.


what do the police need to briefly detain you?

reasonable suspicion supported by articulable facts of criminal activity.


what does a police car need to stop a car?

reasonable suspicion that the law has been violated.


does a dog alert to the presence of drugs form the basis for probable cause for a search?

yes it does. but they cannot use it directly outside the house without probable cause.


What is the first step to any search and seizure question?

you must decide if there was government conduct. ex: publicly paid police, privately paid police with power to arrest, or private individual acting at the direction of the police.


what is the second step to any search and seizure question?

you must analyze whether the person had a reasonable expectation of privacy. ( you own the premises, you live on a premises, overnight guest, property you own. NO right to privacy over your voice, handwriting, account records, location of your car, anything that can be seen across open fields, public airspace, odors, garbage set out on the curb, info held to the public)


What is the third step to any search and seizure question?

did the police have a valid search warrant?


what are the two requirements for a valid search warrant?

probable cause and particularity.


standard for probable cause

a fair probability that contraband or evidence of a crime will be found in the area searched?


standard for particularity

the warrant must state with the particularity the place to be searched and the things to be seized.


use of informants we consider what?

totality of the circumstances.


can a valid warrant be based in part by an anonymous informant?

yes it can.


when are no knock entrys permitted in the execution of search warrants?

exigent circumstances exist. (1) knocking and announcing would be dangerous and futile. (2) destruction of evidence.


what is the fourth step in a search an seizure question?

if the warrant is not valid, does an officers good faith save the defective search warrant? the general rule is that an officers good faith reliance on a search warrant overcomes the defects with the probable cause or particularity requirements.


four exceptions to an officers good faith reliance on a warrant are?

(1) the affidavit underlying is so lacking in probable cause that no reasonable police officer would have relied on it (2) the affidavit is so lacking in particularity
(3) the police officer or prosecutor lied or mislead the magistrate,
(4) if the magistrate is biased.


what is the fifth step in a search and seizure question?

If the warrant is invalid or there is no warrant, you look to the warrant exceptions.


what are the 6 exceptions to the warrant requirement?

1. Search incident to a lawful arrest
2. The automobile exception
3. Plain view
4. Consent
5. Stop and Frisk
6. Evanescent Evidence, Hot Pursuit and Special Needs
7. Community Caretaker Exception


what is the search incident to a lawful arrest exception?

The person and the areas within the person's wingspan. The search must be contemporaneous in time and space.


How does search incident to lawful arrest work with automobiles

The police may search the interior of the auto if the arrestee is (1) unsecured and still may gain access to the interior. OR (2) the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.


What is the community care taker exception?

justifies a warrantless search if an officer faces an emergency that threatens the health or safety of an individual or the public.


what is the automobile exception to a warrantless arrest?

(1) if the police have probable cause before searching anything, they can search the entire car. (2) the police can open any package which could reasonably contain the item they had probable cause to look for whether that package is owned by the passenger or driver.


Can the probable cause necessary to justify the warrantless search of an auto under the automobile exception arise after the car is stopped?

Yes but the probable cause must arise before any thing or anybody is searched.


What constitutes the plain view exception?

(1) the police must be LEGITIMATELY present at the location where he or she does the viewing of the item seized.
(2) It must be IMMEDIATELY APPARENT that the item is contraband or a fruit of a crime.


For consent to be valid, the consent must be ____?



If one party consents and the other one doesnt, whose consent controls?

the one who doesnt consent controls


What is a terry frisk?

A pat down of the outer clothing and body to check for weapons.


A terry stop is a brief detention for the purpose of what?

investigation suspicious conduct, there must be reasonable suspicion.


Evanescent evidence is what?

Evidence that might disappear quickly.


What is the hot pursuit exception?

police can enter any one's home without a warrant and any evidence they see in plain view will be admissible. Have to be within 15 minutes.


What are inventory searches?

Before incarceration of an arrestee, the police may search the (1) arrestees personal belongings and (2) the arrestees entire vehicle.


How do public school searches work?

public school children engaged in extra curricular activities can be randomly drug tested. Warrantless searches of public school children's effects, such as purses and/or backpack is permissible. It has to offer a MODERATE chance of finding evidence of a wrongdoing. and it must no be accessibly intrusive.


Do all wiretapping and eavesdropping require a warrant?

Yes they do.


What are the Miranda Warnings?

You have the right to remain silent, anything you say can be used against you in court, you have a right to an attorney, and if you cant afford an attorney one will be appointed for you if you so desire.


What triggers the Miranda warnings?

Custodial Interrogation.


what is the legal standard for custody?

you are in custody if, at the time of the interrogation, a reasonable person would not be free to leave. routine traffic stops and probation interviews are not considered custodial.


what is the legal standard for interrogation?

any conduct where the police knew or should have known that they might illicit incriminating response form the suspect.


What are the two substantive bases on which you can attack a pretrial identification:

Denial of the right of the counsel (6th amendment) or Denial of due process


what are some procedures that give right to counsel?

Post charge line-ups (standing in a line) and show ups (one on one) give the right to counsel.

There is NO right to counsel when the police go out show the victim or witness photogoraphs.


what are some other stages where there is NO right to counsel:

1. taking of blood samples
2. taking of handwriting samples
3. Pre-charge lineups
4. Brief recess during testimony at trial.
5. Parole and probation revocation proceedings.
6. the taking of fingerprints.


denial of due process

Certain pretial identification techniques are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law.


are bail issues immediately appealable?



Is preventive detention constitutional?



Do the Ds have a right to appear at proceedings of grand juries?



Must a prosecutor disclose evidence, whether willful or inadvertent?

yes violates the due process clause and may be grounds for reversal of a conviction.


A failure to disclose exculpatory information will constitute grounds for reversing a conviction if:

1. the evidence is favourable to D, and

2. Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed.


Is there a right to unbiased judge?



When is there a right to jury trial?

anytime the D is tried for an offense which the maximum authorized sentence exceeds 6 months.


what is the minimum number of jurors permissible?

6, if 6 the verdict must be unaimous.


Is there a constitutional right to a unanimous 12 juror verdict?

No, 10-2 and 9-3 is ok.


What is the cross sectional requirement?

You have a right to have the jury pool reflect a fair cross section of the community. But no right to have the empaneled jury reflect a fair cross section of the community.


What is a peremptory challenge?

a challenge to exclude a juror for any reason whatsoever except RACE or gender.


When does a criminal Defendant's right to counsel apply?

to all critical stages of a prosecution, including rial.


What is the ineffective assistance of counsel?

there must be deficient performance by counsel and, but for, such deficiency, there is a reasonable probability that the result of the proceeding would've been different.


does a defendant have a right to self-representation?

Yes a defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent, and he is competent to proceed pro se.


when does the D'S right to confront a witness not apply under the 6th amendment?

1) preventing such confrontation serves important public purpose and the reliability of the witness testimony is otherwise assured.
2) A D who is disruptive may be removed from the courtroom, thereby relinquishing his right of confrontation.


what does the Judge have to address when a D pleads guilty?

1) nature of the charge
2) the maximum authorized penalty and any mandatory minimum ; and
3) the judge must tell him that he has a right to plead not guilty and to demand a trial;
4. All of this must be on the record.


What are the four based for withdrawing a guilty plea after sentence?

1. the plea was involuntary
2. lack of jurisdiction
3. ineffective assistance of counsel.
4. failure of the prosecutor to keep agreed upon plea bargain.


Does a death penalty statute have to give the Defendant a chance to present mitigating facts and circumstances?

Yes, unconstitutional if not. There can be no automatic category for the imposition of death penalty.


Can a judge determine the aggravating factors justifying imposition of the death penalty?

No only a jury.


when does double jeopardy attach?

when the jury is sworn or the first witness is sworn (bench trial).


Exceptions permitting retrial

1. jury is unable to agree upon verdict
2. Mistrials for manifest necessity (medical emergency)
3. A retrial after a successful appeal is not double jeopardy


Upon retrial after a successful appeal, the D cannot be retried for ?

more serious offense than he was convicted of at the first trial.


What happens upon a breach of a plea bargain by D.

his plea and sentence can be withdrawn and the original charges reinstated.


when do two crimes not constitute the same offense?

when a crime requires proof of an additional element that the other does not.