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Flashcards in Criminal Procedure Deck (66)
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What are 4 key questions you should ask when approaching a 4th Amendment question?

  1. Was there a search or seizure?
    • Was the search or seizure conducted by a government actor?
  2. Was there probable cause?
  3. Was there a valid warrant?
    • Was the warrant defective or did the police act in bad faith?
  4. Was there an exception to the warrant requirement?


What is required for a valid arrest?

  1. Probable cause; and 
  2. Warrant if: 
    • Suspect is in their own home absent consent or exigent circumstances; or 
    • Suspect is in another person's home absent consent or exigent circumstances



What is the two-prong test identified in Katz to determine whether or not there was a search?

  1. Did the defendant have a reasonable expectation of privacy?; and
  2. Was the expectation one that society recognizes as reasonable?

If yes, the search is protected by the 4th Amendment.

See Katz v. United States


List examples of objects or things in which there is no reasonable expectation of privacy

  1. Objects knowingly exposed to the public; 
  2. Smells emanating from personal belongings; 
  3. Car VIN #'s; 
  4. Handwriting samples;
  5. Voice exemplars;
  6. DNA samples; 
  7. Bank records;
  8. Phone call records; 
  9. Conversations with government informants;  
  10. Open fields; 
  11. Airspace above property higher than 400 feet 
  12. Naked-eye observations of private property; and
  13. Discarded property


What is considered one's home for the purposes of the 4th Amendment?

  1. Home/dwelling itself; and
  2. Curtilage (area surrounding the home). Whether or not area is curtilage depends on: 
    • Proximity of the area to the home;
    • Whether the area is within an enclosure surrounding the home;
    • The nature and uses to which the area is put; and
    • Steps taken by the resident to protect the area from observation by passersby

United States v. Dunn, 480 U.S. 294 (1987)




What are the requirements for a valid warrant?

Warrant must be: 

  1. Based on probable cause
    • Supported by oath or affidavit 
  2. Describe with particularity the thing/person to be seized and place to be searched; and 
  3. Be issued by a neutral and detached magistrate



What is the "knock and announce" rule?

Absent exigent circumstances, the police must knock and announce their identity before entering a home to execute a warrant

More Info: Knock and Announce


If police violate the "knock and announce" rule, what happens to evidence discovered during the search?

Still admissible. Exclusionary Rule does not apply. See Hudson v. Michigan.


What are 8 exceptions to the warrant requirement? 

  1. Searches incident to lawful arrest;
  2. Automobile search;
  3. Plain view search;
  4. Consent;
  5. Stop and frisk; 
  6. Inventory search; 
  7. Exigent circumstances; and
  8. Administrative searches

⭐️ The MBE likes to trick you on these. Memorize these exceptions. 


When does probable cause exist?

If the quantity of facts and circumstances would lead a reasonable person to conclude that either: 

  1. The individual in question has committed a crime; or
  2. Specific items related to criminal activity can be found at that particular location

More info: Probable Cause


What is the remedy if police act pursuant to an invalid warrant

Evidence obtained during an unlawful search will be inadmissible pursuant to the Exclusionary Rule. 

⚠️ Exception: Evidence is not excluded if police officers relied upon the warrant in good-faith.




What is the "Plain-view" doctrine?

A warrant is not required to seize an item if:

  1. The police are on the premises lawfully when they observe the item; and
  2. The incriminating nature of the item is immediately apparent (police may not move objects to get a better view)

More Info: Plain View Doctrine


The scope of a warrant is limited to: 

Only the premises, person, or items described in the warrant


What is a search incident to lawful arrest ("SITLA")?

Warrantless search of an arrestee and the area within their immediate control (wingspan, lunging area) during a lawful arrest 




Pursuant to a search incident to lawful arrest, can police search the arrestee's vehicle

Yes, if: 

  1. Arrestee has access to the vehicle compartments; 
  2. There is a reasonable belief arrestee may destroy evidence or pose a danger to the officers; and 
  3. There is reasonable belief that the vehicle contains evidence of a crime 


What is the exigent circumstances exception to the warrant requirement?

Police may search without a warrant if waiting to obtain a warrant will result in imminent:

  1. Destruction of evidence; 
  2. Escape of the accused; or 
  3. Danger to police or others in the area

More Info: Exigent Circumstances

⚠️ Note: Not applicable if police create the exigent circumstances so they can bypass the warrant requirement 


What is the scope of a "frisk"?

Police are only allowed to do a quick pat-down of the suspect's outer clothing for weapons. Cannot manipulate items. 


What is the "plain feel" exception to a Terry Stop? 

If, during the course of the frisk, the police have probable cause to believe the suspect has a weapon or contraband (e.g. they feel a gun), they may seize the weapon


What is the automobile exception to the warrant requirement?

Police may search an automobile and persons within it without a warrant as long as they have probable cause.

Police can search any locked containers in the vehicle and the trunk if the areas could reasonably hold the evidence sought (i.e. have probable cause to do so)

Also applies to motor homes, boats, and airplanes. 


What is the consent exception to the warrant requirement?

If a person has voluntarily consents to a search, no warrant or probable cause is needed. 

Whether or not a person has consented is determined in light of the totality of the circumstances.


Does a third party have authority to consent to a search? 

Yes, if:

  1. The third party owns or occupies the home; or 
  2. The third party and D jointly own or occupy the home and D is not present (valid even if D had previously objected at another time) 

⚠️ Note: If D is home and objects to the third party giving consent, the third party consent is not valid 



Which types of checkpoints are permissible?

  1. Sobriety checkpoints;
  2. Checkpoints at or near the border; and
  3. Checkpoints to obtain information about a recent crime

⚠️ Checkpoints to test for drugs are not valid 


The exclusionary rule does not apply to which type of proceedings

  • Grand jury proceedings; 
  • Civil proceedings; 
  • Administrative proceedings; and
  • Sentencing, bail, and parole hearings


What are the exceptions to the Exclusionary Rule

Evidence may still be admissible if it falls underneath these exceptions: 

  1. Independent source: Evidence is discovered by an independent source; 
  2. Attenutation: Relationship between the primary taint and discovery of evidence is sufficiently attenuated as to break the causal chain
  3. Inevitable discovery: Evidence would have been inevitably discovered through legal means
  4. Good faith: Exists when police officers were acting in good faith on a warrant that was later declared invalid (see more: Good Faith Exception
  5. Impeachment: Illegally obtained evidence may be used to impeach D at trial  



The 5th Amendment privilege against self-incrimination only applies to what type of statements?

compelled, testimonial statements 


Under the 5th Amendment, what type of evidence is not considered testimonial?

  • Observational evidence (e.g. lineups); and 
  • Physical evidence (urine samples, hair samples, handwriting samples) 


What are Miranda rights?

Holds that statements obtained while in custody as the result of direct questioning are inadmissible unless: 

  1. The police advise the suspect of their rights; and
  2. The suspect freely waives those rights

⚠️ Remember: Custody + Questioning  *REQUIRES*  Warning + Waiver


When is a suspect considered in "custody" for Miranda purposes?

When the suspect is in custody at the police station or otherwise not free to leave


What constitutes an interrogation under Miranda?

  • Direct questioning; or 
  • Words or actions that a reasonable officer knows or should know will elicit an incriminating response


What are the elements of a Miranda warning?

Police must inform D that he has:  

  1. A right to remain silent;
  2. Anything said can be used against him in court;
  3. A right to the presence of an attorney; and 
  4. f he cannot afford an attorney, one will be provided for him


When must Miranda warnings be given?

Before the interrogation begins


What must a suspect do to exercise their rights after Miranda warnings have been given?

The suspect must make an clear and unambigous request for an attorney and an affirmative invocation of the right to remain silent.

See "Give me a lawyer, dawg" (or did he want a "lawyer dog"?) as an example of an ambigous request for an attorney which did not properly invoke the right.


Are statements taken in violation of Miranda rights admissible?

Yes, the statements can be used to impeach D if D takes the stand. Involuntary statements, however, are inadmissible. 

⚠️ Note: Statements cannot be used as direct evidence.


Does silence constitute invoking the right to remain silent? 

No, D must make an unambiguous statement that he is asserting his right to remain silent 


Is physical evidence seized as the result of an illegal confession (i.e. one in violation of Miranda) admissible?


Yes, any physical derivative evidence obtained from a confession that violated Miranda is admissible. 

Ex. During an illegal interrogation, D tells police that the gun is hidden under the bed. The gun is admissible at trial. 


Is physical evidence obtained in violation of Miranda admissible? 

Yes, as long as the statement was not coerced. 


When does a suspect have a right to counsel for a lineup or showup?

At any post-charge, in-person lineup or showup



When does a suspect not have a right to counsel for an indentification procedure?

  1. Pre-charge lineups or showups; and
  2. Non-live identification (e.g. examining photographic lineups, fingerprinting, photo arrays)


What is the remedy when a post-charge, in-person lineup occurs without counsel present?

  1. Identification is inadmissible at trial; and
  2. Witness will be prohibited from making a subsequent in-court identification of D unless the prosecution can prove that the witness has an independent source of identification



Due process applies to which types of identification procedures?

All types of ID procedures at all stages of the process


What is the remedy for a due process violation during the identification process? 

D can seek to suppress the identification via a suppression hearing.

If D meets his burden, evidence will be suppressed and the witness will not be able to subsequently identify D at trial. 

⚠️ Exception: if the witness can identify D based upon knowledge from a source that is independent of the impermissible identification, they will be allowed to identify D at trial. 



What is the 6th Amendment right to counsel?

Guarantees D the right to counsel during all critical stages of the adversarial process. Only applies to crimes where D may be sentenced to incarceration

More info: Right to counsel


Does the 6th Amendment right to counsel protect D against interrogations about other crimes

No, the 6th Amendment right to counsel is offense-specific (i.e. only applies to interrogations about the offense charged). Thus, the police can question D without counsel present about any other crimes


When is the 6th Amendment right to counsel triggered

Begins with the initiation of formal adversarial process (ex. formal charge, indictment, arraignment, or preliminary hearing). Once right is triggered, D is entitled for counsel for all subsequent proceedings


Under the 6th Amendment, what are considered the critical stages of a proceeding? 


  1. In-person lineups and identifications
  2. Preliminary hearings; 
  3. Bail hearings; 
  4. Interrogations; 
  5. Plea bargaining negotiations; and
  6. Appeals as a matter of right 


What stages are considered not critical? (i.e. no right to counsel) 

  1. Photo arrays; 
  2. Pre-indictment lineups; 
  3. Fingerprinting; 
  4. Taking handwriting, voice, or blood samples; 
  5. Probable cause hearings; 
  6. Discretionary appeals; and
  7. Parol or probation hearings


What is the difference between the 5th Amendment right to counsel and the 6th Amendment right to counsel? 

5th Amendment: 

  • Applies to all crimes, not offense-specific
  • Only applies during custodial interrogations 
  • Must be invoked by a clear statement demanding counsel 

6th Amendment: 

  • Only applies to the crime charged, offense specific
  • Applies to all critical stages of a proceeding
  • Automatically invoked once criminal proceedings have begun


Is the prosecutor required to disclose exculpatory evidence in a grand jury proceeding? 



Can a grand jury hear evidence that would be inadmissible at trial? 

Yes, can hear evidence that would be inadmissible at trial, including hearsay or illegally obtained evidence 


What is the constitutional right to bail?

There is no absolute constitutional right to bail, but the decision to deny bail must comply with Due Process, which requires the denial is not arbitrary.

Any decision to deny bail is immediately appealable.


When is a pretrial hearing to determine if probable cause exists required? 

  1. There has been no grand jury indictment or judicial issuance of probable cause;
  2. D has been arrested or released on bail; and 
  3. It is within 48 hours of D's arrest (hearing must be held within 48 hours)


What are the elements of a valid guilty plea?

Must be voluntarily and intelligently made. D must understand: 

  • The nature of the charge and its elements; 
  • The maximum authorized sentence and any mandatory sentencing; 
  • They have a right to plead not guilty; and
  • They are waiving their right to a jury trial


What is the balancing test to determine whether D's right to a speedy trial has been violated? 

Courts balance the following:

  1. Length of delay; 
  2. Reason for the delay; 
  3. Whether D asserted his right to a speedy trial; and 
  4. Amount of prejudice to D resulting from the delay 



What is the consequence if a prosecutor fails to disclose materially exculpatory evidence?

D is entitled to a reversal if: 

  1. Evidence was exculpatory; and 
  2. Failure to disclose likely affected the outcome of the trial and prejudiced D


When does the right to a jury trial exist? 

For any crime that authorizes a sentence of greater than 6 months (regardless of the actual sentence imposed) 


What is the Confrontation Clause?

6th Amendment gives D right to confront (meaningfully cross-examine) all witnesses presenting evidence against him.

More info: Confrontation Clause



testimonial evidence 

Written or spoken communications whose primary purpose is to establish or prove past events potentially relevant to later criminal prosecution (e.g. affidavits, prior testimony) 

Davis v. Washington


Are statements made during an emergency considered testimonial? 

Likely no. Statements made to law enforcement or 911 operators to assist in an ongoing emergency are not considered testimonial. 

But, statements made after the emergency has ceased, or statements to further the investigation, will be considered testimonial.




Why does testimonial hearsay violate the Confrontation Clause? 

Since testimonial hearsay is an out-of-court statement, D did not have the opportunity to confront or cross-examine the declarant, thereby violating his 6th Amendment right to confrontation. 



What is the 8th Amendment

Prohibits the federal government from imposing cruel and unusual punishment, including torture or punishment that is grossly disproportional to the offense 


What is required for the death penalty to be constitutional

  1. Death penalty statute is clear and unambiguous (Godfrey v. Georgia); 
  2. Statute provides a procedure for review that ensures death penalty is not arbitrary or discriminatory; and
  3. Jury is given opportunity to review mitigating factors (e.g. age, mental capacity); 
  4. Jury had the opportunity to find D guilty of a lesser-included offense; and
  5. Jury finds evidence of at least one aggravating circumstance


What is the burden of proof in all criminal cases?

Prosection must prove every element of the crime beyond a reasonable doubt


Who bears the burden of proving affirmative defenses

D. Generally, the prosecution must prove every element of the case beyond a reasonable doubt. However, D can have the burden to prove affirmative defenses (e.g. insanity, entrapment, duress, or self-defense)

⚠️ Note: Can either be proved by clear and convincing evidence or by a preponderance of the evidence standard. 


What constitutes the "same crime" for the purposes of double jeopardy? 

Blockburger test: Crimes are not the same if each crime contains an element not found in the other​. 

Ex. You can be charged with attempt, and later charged with conspiracy because both require proof of different elements

⭐️ This means that re-trying D for any lesser included or greater included offense is prohibited because they contain the same, core elements. 



What are the exceptions to Double Jeopardy (i.e. when can D be retried)? 

  1. Jury was unable to reach a verdict
  2. D violated plea agreement
  3. D was tried in a criminal court, and is being retried in a civil court (and vice vera); 
  4. Dual-sovereignty doctrine: 
    • D may be prosecuted for the same crime by a federal court and a state court
    • May be prosecuted for same crime by 2 different states 
  5. Mistrial for "manifest necessity;"  
  6. Retrial is after D's successful appeal on procedural grounds; and 
  7. Grand jury can retry D if another grand jury failed to return an indictment 



writ of habeas corpus

Mechanism for a person to challenge the lawfulness of their detention. It is considered a collateral attack on the conviction, and is a separate legal proceeding.

The writ of habeas corpus is a civil challenge (not criminal), and there is no right to counsel.