Criminal Procedure Intro Cards

Question 1

Which US Constitutional Amendments relate to the rights of the accused?

Answer 1

The Fourth, Fifth, Sixth, and Eight Amendments.

Question 2

Which aspects of the US Constitution have been Incorporated (via the 14th Amendment Due Process Clause) as protections for the accused?

Answer 2

Incorporated into state criminal law are (i) the Fourth Amendment’s protection against searches and seizures; (ii) the Fifth Amendment’s privilege against self-incrimination and double jeopardy; (iii) the Sixth Amendment’s right to counsel, a speedy, public trial (by jury), and the right to confront witnesses and compulsory process; and (iv) the Eighth Amendment’s prohibition on cruel and unusual punishment and excessive fines

Question 3

What protections against Arrest, Search, and Seizure are provided by the Fourth Amendment?

Answer 3

(1) searches and seizures must be reasonable and (2) there must be a valid warrant.

Question 4

What is the Governmental Action requirement for constitutional protections?

Answer 4

The constitution protects against government action. The individuals committing the transgression must be acting in their professional capacities.

Question 5

When does the Government intrude via unreasonable search?

Answer 5

Where the individual has an actual, subjective expectation of privacy that society is willing to recognize as objectively reasonable.

Question 6

What are the accepted realms where one can reasonably expect privacy?

Answer 6

(i) on one’s person; (ii) in private conversations; (iii) in personal residence and nearby “cartilage”, barns, sheds, etc.; (iv) in closed containers (cars, luggage, safes); and (v) in the workplace (though weaker than the home)

Question 7

Where can an individual not reasonably expect privacy?

Answer 7

(i) as to odors emanating from properties; (ii) in garbage; (iii) on bank statements; and (iv) in a prison cell.

Question 8

What are the two types of Seizure that the Fourth Amendment Protects?

Answer 8

The Seizure of (1) persons and (2) property.

Question 9

What constitutes a seizure of a person?

Answer 9

An individual is seized by a government actor using physical force or a show of authority to restrain the person’s liberty. (i) if a person submits to a showing of government authority; (ii) if the government officer successfully arrests (with or without use of force); (iii) if a government officer physically subdues or restrains a person.

Question 10

What constitutes seizure of property?

Answer 10

When the government assumes possession and control of the property.

Question 11

What level of force may the police use to effectuate a seizure (personal or property)?

Answer 11

The police may only use force that is reasonable under the circumstances.

Question 12

What is a Warrant?

Answer 12

A Warrant is a Writ directing or authorizing an arrest, a search, or a seizure.

Question 13

What are the components of a Valid Warrant (under the Fourth Amendment)?

Answer 13

The Warrant must (i) be supported by probably cause, (ii) be issued on oath or affirmation; and (iii) particularly describe who or what is to be searched or seized. It must be signed by a qualified, neutral, and detached magistrate.

Question 14

What is necessary to show probable cause for the issuance of a Warrant?

Answer 14

There must be evidence of a sufficient nature and quality to provide reasonable grounds to believe (not mere suspicion) that there is a fair probability that: (i) in the case of a search warrant, contraband or evidence of a crime will be found; (ii) in the case of an arrest, the particularly person has committed or is committing a crime. Probably cause must continue to exist at the time the warrant is executed

Question 15

What are the requirements of the Oath or Affirmation of the Warrant?

Answer 15

A law enforcement officer requesting a Warrant may present a sworn affidavit setting for the facts of probably cause, and it must be based on: (i) the officer’s personal knowledge or (ii) hearsay with sufficient independent corroboration or (iii) information from a confidential informant.

Question 16

What are the Particularity requirements of a Warrant application?

Answer 16

The Warrant must describe the place to be searched such that a person relying on it, with reasonable certainty, can ascertain and identify the specific location where the search is authorized. Law enforcement may only seize the specific person or things described in the warrant from the place described in the warrant.

Question 17

What are the constituent requirements of the *execution * (the act of serving) an otherwise valid Warrant?

Answer 17

(i) the Warrant must be executed within a reasonable time after it is issued; (ii) the scope of the search and seizure cannot exceed the Warrant’s specifications; and (iii) the manner of entry must be proper.

Question 18

What is the remedy for evidence obtained as a result of a Warrant violation?

Answer 18

The defendant can have the evidence excluded.

Question 19

How can an officer justify a warrantless search or seizure?

Answer 19

A warrant-less search or seizure is presumed unreasonable. The duty falls to the officer to show that the challenged action satisfies an exception to the warrant requirement.

Question 20

Wha are the Exceptions to the Warrant requirement?

Answer 20

(i) The Good Faith exception; (ii) the Plain-View doctrine; (iii) Arrests and Seizures incidental to lawful arrests; (iv) Terry stop-and-frisks; (v) Exigent Circumstances; (vi) the automobile exception; (vii) consent; (viii) administrative searches; (ix) inventory searches; and (x) special-needs searches

Question 21

Can an officer make an arrest without a warrant?

Answer 21

Generally, no. But incidental to a lawful arrest, officers may conduct a search of the arrestee’s person and the immediate vicinity without a warrant or other justification.

Question 22

What are the requirements of a lawful Terry Stop (stop-and-frisk)?

Answer 22

The Officer must have a reasonable suspicion that the individual is engaged in criminal activity. The Officer may conduct a brief and cursory pated-won of the individual’s outer clothing to in search of a deadly weapon if the totality of the circumstances would lead a reasonable person to suspect the individual poses a danger to the officers or others.

Question 23

What are Exigent Circumstances where an officer can act without a Warrant?

Answer 23

(i) in hot pursuit; (ii) where a dangerous criminal poses an imminent risk of harm; (iii) where there is a risk of imminent destruction of evidence; or (iv) the emergency-aid exception

Question 24

What is the Automobile Exception that allows officers to act without a Warrant?

Answer 24

Motor vehicles may be searched or seized in connection with a lawful arrest or a Terry stop-and-frisk.

Question 25

What is the *Consent* exception that allows an offer to act without a warrant?

Answer 25

A government official may conduct a search without a warrant or probably cause based on the subject's consent, provided that the consent (a) was voluntary and (b) the individual was authorized to grant consent.

Question 26

What is the *inventory search* exception to acting without a Warrant?

Answer 26

For property that law enforcement possesses, it may conduct an inventory *if* the owner's diminished expectation of privacy is outweighed by (1) a need to protect law enforcement from potential danger or from a claim of lost or stolen property or (2) the owner's property from loss or damage while it's in government custody.

Question 27

What are *Special Needs* searches without warrants?

Answer 27

These are searches (1) that must further a special need *beyond the normal law enforcement need* that would be compromised by seeking a Warrant or a probably cause requirement and (2) the governmental interest by the search must *outweigh the nature of the intrusion* on the implicated privacy interest. Permissible Special-Needs searches include: (i) wantless searches of parolees; (ii) warrantless strip-search of prisoners; (iii) programatic, suspicion-less drug test of employees or public-school students; and (iv) sobriety checkpoints on public roadways.

Question 28

What is the *Border* exception to the Fourth Amendment?

Answer 28

The Fourth Amendment does not protect against *routine stops and searches* at borders.

Question 29

Are public school employees limited by the Fourth Amendment?

Answer 29

Yes. As Government Actors their search or seizure of public-school students *must satisfy the Fourth Amendment*. Searches must be *reasonable under the circumstances*.

Question 30

What are the principle criminal protection of the Fifth Amendment?

Answer 30

(1) the privilege against compulsory self-incrimination; and (2) the protection against double jeopardy. The fifth amendment also provides a right to indictment by a grand jury in certain federal cases.

Question 31

What is the Fifth Amendment Right against Self-Incrimination?

Answer 31

No one shall be compelled, in any criminal case, to be a witness against himself.

Question 32

What are the notification requirements of the Miranda Doctrine (Miranda v. Arizona, 1966)

Answer 32

Law enforcement must (1) inform the suspect of his rights, and (2) make reasonably certain that the suspect has knowingly, intelligently, and voluntarily waved those rights.

Question 33

What must law enforcement receive before they can commence custodial interrogation?

Answer 33

The custodial suspect must be warned of *and waive* their Fish Amendment rights before custodial interrogation may begin. Any pretrial, custodial statement elicited from a suspect without proper warning and waiver are *inadmissible* against the suspect at trial.

Question 34

What are the substantive components of the Miranda warning?

Answer 34

(1) the suspect has the *right to remain silent*; (2) the suspect is told that anything he says may be *used against him*; and (3) the suspect has a *right to an attorney.*

Question 35

What is a *Knowing and Intelligent* waiver of one's Miranda rights?

Answer 35

To show that the suspect waived his Miranda rights, the government must show that (i) the Miranda warnings were *clearly communicated* to the suspect; (ii) the suspect was given an opportunity to *contemplate* the warning; and (iii) there is *no affirmative evidence* indicating that the suspect *did not* understand the rights; and (iv) the suspect proceeded to make *self-incriminating statement* in response to interrogation.

Question 36

What is a *Voluntary* waiver of one's Miranda rights?

Answer 36

The waiver cannot be coerced by law enforcement.

Question 37

What is the scope of the Miranda Waiver?

Answer 37

Once a suspect waives his Miranda rights, the police may interrogate him about any crime. It is not offense-specific.

Question 38

Can a suspect withdraw his Miranda Waiver?

Answer 38

Yes -- he may withdraw a prior waiver and end the interrogation at any time by reasserting his Miranda rights.

Question 39

How can a suspect invoke his Miranda rights?

Answer 39

With a *clear, express and unequivocal statement* that either (1) he wishes to remain silent or (2) he requests representation by an attorney.

Question 40

What is the effect of a valid invocation of Miranda rights on an ongoing interrogation?

Answer 40

After a suspect invokes his Miranda rights, the custodial interrogation *must cease*. Any statement obtained after the valid invocation of the Miranda rights will be inadmissible for the purpose of proving guilt.

Question 41

Can law enforcement ever resume a custodial interrogation after a suspect invokes his Miranda rights?

Answer 41

It's a high bar. Any statements made based on waiver of rights made by a suspect *after* he's invoked his Miranda right to *counsel*, without the assistant of an attorney, is *per se invalid*. If, however, the suspect invokes only his *right to remain silent*, and law enforcement *scrupulously honors that right* for an adequate period of time, law enforcement may alter initiate an attempt to resume an investigation based on administration of *new Miranda warning and a valid waiver*.

Question 42

What is the Public-Safety exception to the Miranda rights?

Answer 42

The Public-Safety exception is the single exception to Miranda's requirement that a suspect in custody must be warned of the consequence of making incriminating statements to law enforcement. A statement taken in violation of Miranda is fully admissible if the custodial questioning that resulted in the incriminating admission was reasonably caused by a concern for public safety.

Question 43

Can statements obtained in violation of a suspect's Miranda rights be used in court proceedings?

Answer 43

Yes, but with limitations. They cannot be used to prove a suspect's guilt, but they can be used to *impeach* a defendant's testimony.

Question 44

Is the Fifth Amendment applicable in civil proceedings?

Answer 44

The Fifth Amendment is applicable in any proceeding (civil or criminal, formal or informal), in which an individual's statement may for the basis for future criminal proceedings.

Question 45

Can a defendant reclaim his Fifth Amendment rights after waiver?

Answer 45

No. Once a defendant waives his right, and testifies, he has *waived his privilege* and he must testify fully, truthfully, and accurately.

Question 46

Can a witness be compelled to testify in a criminal matter (against his Fifth Amendment Privilege)?

Answer 46

A witness who is not a defendant can be called upon to testify (he may not refuse to testify on Fifth Amendment grounds). He must take the stand and affirmatively assert his fifth amendment privilege to each question asked. If he responds, he waives the privilege with respect to each fact or belief about which he testifies.

Question 47

What is the application of the Fifth Amendment to Evidence?

Answer 47

In order to assert a Fifth Amendment privilege related to evidence, the evidence must be (i) compelled, (ii) incriminating, and (iii) testimonial.

Question 48

If the government *offers* a witness *constitutionally sufficient immunity*, can it compel a witness to testify regardless of the otherwise incriminating nature of the statement?

Answer 48

Yes.

Question 49

What is "Direct-Use" Fifth Amendment Immunity?

Answer 49

This means that if the government grants immunity to testimony, that testimony cannot be admitted into evidence at a criminal trial against the witness as part of the government's case-in-chief. However, the government can use the testimony to secure other, admissible evidence.

Question 50

What is "Use and Derivative-Use" Immunity?

Answer 50

This means that if the government grants immunity to a witness, the witnesses's statement *and* an evidence derived from those statements (derivative use) cannot be used in a criminal prosecution.

Question 51

What is "transactional" immunity?

Answer 51

Transactional immunity is the highest form of immunity for a witness, and grants categorical immunity from prosecution for *any offense to which the compelled might relate*.

Question 52

At what point does the Sixth Amendment kick-in, and provide a right to counsel, in the criminal process?

Answer 52

At *any identification procedure* once adversarial proceedings have begun, even pre-indictment.

Question 53

When can a witness, in court, *not* identify the defendant at trial?

Answer 53

When the witnesses's *pretrial identification* is inadmissible on constitutional grounds.

Question 54

What is the initiation point for a right to counsel in criminal proceedings?

Answer 54

The initiation of formal proceedings against the suspect.

Question 55

At what points during the process is the defendant granted a right to counsel.

Answer 55

At every *critical stage* of the prosecution, the *effective assistance of counsel* is guaranteed.

Question 56

What are the "critical stages of prosecution"?

Answer 56

*All deliberate efforts* by the government to *elicit incriminating information* from the defendant.

Question 57

When does the defendant's right to counsel end?

Answer 57

After sentencing.

Question 58

When is the defendant's right to counsel infringed?

Answer 58

At any point after (1) it has attached and (2) it has been denied at a critical state.

Question 59

What is the remedy for information obtained in violation of the defendant's right to counsel?

Answer 59

That information will be suppressed. Physical evidence obtained as a result of the Sixth Amendment violation ("the fruit of a poisonous tree") may also be excluded.

Question 60

Is the right to counsel for all criminal acts, or limited in scope?

Answer 60

The right to counsel only applies to the prosecution of particular crimes, and not to crimes that are not being prosecuted.

Question 61

What are the exceptions to the government obtaining information from a defendant after he invokes his right to counsel?

Answer 61

The government may still obtain admissible evidence from the defendant if (i) he has the assistance of counsel in connection with the interaction; or (2ii) he validly waives the right to counsel.

Question 62

Who has a right to appointed government counsel?

Answer 62

Only indigent defendants.

Question 63

At what stage is the indigent defendant granted a government attorney (beginning and end point)?

Answer 63

The right to appointed counsel begins at the first stage in the criminal proceeding where the Sixth Amendment right applies. It extends beyond sentencing (the normal right to counsel in a criminal matter) and to the first appeal as of right.

Question 64

For what charges are indigent defendants granted appointed counsel?

Answer 64

All *felony* cases and any other *misdemeanor* in which the sentence of imprisonment (prison time) is imposed.

Question 65

What is the Defendant's constitutional expectation in regards to representation by counsel?

Answer 65

The defendant has a right to the *effective assistance* of counsel

Question 66

When is the implication of ineffective representation by counsel?

Answer 66

If representation is ineffective, and the deficiency *materially influences* the outcome of the proceeding, the defendant is entitled to have the outcome *voided or vacated*

Question 67

What is the Constitutional Standard for evaluating *Effective Assistance* of Counsel?

Answer 67

To prove that counsel was ineffective, a defendant must prove that (i) counsel's performance fell below an objective standard of reasonableness and (ii) the deficient representation materially prejudiced the defendant, resulting in a *fundamentally unfair or unreliable result*

Question 68

Which Amendment guarantees the right to a speedy and fairy trial?

Answer 68

The Sixth Amendment

Question 69

What are the trial rights afforded by the Sixth Amendment?

Answer 69

(i) the right to a trial *without undue post-accusation delay); (ii) a jury trial for all *serious crimes*; (iii) to be *informed of the charges* against the defendant; (iv) for the defendant to directly *confront adverse witnesses* and cross-examine them; and (v) *representation by counsel* in all state and federal prosecutions in which the defendant is accused of a felony or a misdemeanor which may result in a prison sentence.

Question 70

What processes can a criminal defendant use to waive his right to a jury trial?

Answer 70

(i) he can obtain the court's approval by motion; (ii) obtaining the government's consent; (iii) waiving the right *knowingly, intelligently, and voluntarily*; AND (iv) memorializing the waiver in writing

Question 71

What is the size of the jury in a criminal trial?

Answer 71

The petit jury consists of six to twelve person, typically twelve. Rule 23(b) of the FRCP requires a 12-ember jury, though the parties may require that requirement with the court's permission any time before the verdict.

Question 72

What sort of selection process is not allowed in criminal vii dire?

Answer 72

The US Constitution (Sixth Amendment) prohibits racial discrimination in jury selection. The jury pool (venire) must be a *fair cross-section of the community*.

Question 73

How are the parties able to strike juror during the selection process?

Answer 73

By (a) cause or (b) preemptory challenge.

Question 74

What is requirement for cause for striking a juror in a criminal trial?

Answer 74

It requires a showing that the juror is biased and could not render an impartial verdict.

Question 75

What are the components of the Sixth Amendment Confrontation right?

Answer 75

(i) the right to directly confront an adverse witness; (ii) the right to cross-examine an adverse witness; and (iii) the right to be present at any stage of the trial that would permit the defendant to cross-examine adverse witnesses.

Question 76

What are the exceptions for excluded evidence (evidence obtained in violation of a criminal defendant's fourth, with, or sixth amendment right cannot be used as evidence of guilt)?

Answer 76

(i) the sufficiently attenuated exception; the independent-source exception; the inevitable-discovery exception; and the collateral use of unconstitutionally obtained evidence.

Question 77

What is the *sufficiently attenuated* exception to the prohibition on the use of evidence obtained in violation of the defendant's constitutional rights?

Answer 77

A court may admit evidence that would not have been discovered but for the constitutional rights violation if the causal connection between the violation and the discovery of derivative evidence is *sufficiently attenuated*

Question 78

What is the *Independent-Source Exception* to the prohibition on the use of evidence obtained in violation of the defendant's constitutional rights?

Answer 78

Evidence discovered from a *source independent of the constitutional misconduct* is admissible.

Question 79

What is the *Inevitable-Discovery Exception* to the prohibition on the use of evidence obtained in violation of the defendant's constitutional rights?

Answer 79

If the evidence would have been *inevitably discovered* through independent, constitutional means, then it may be admitted.

Question 80

In what types of proceedings (other than the Case-in-Chief) can the government use evidence obtained through a method that violated a defendant's constitutional rights?

Answer 80

(i) in a federal habeas proceeding; (ii) in grand jury proceedings; (iii) in parole revocation proceedings; and (iv) in a sentencing hearing

Question 81

Who has standing to challenge the unconstitutional collection of evidence?

Answer 81

Only the victim of the action (the defendant).

Question 82

What are the pleas available to a criminal defendant?

Answer 82

(i) not guilty; (ii) guilty; and (iii) (with the court's consent) solo contendere.

Question 83

What is the default plea for the court if the criminal defendant refuses to enter a plea?

Answer 83

Not guilty.

Question 84

What are the Constitutional requirements of a guilty plea?

Answer 84

A plea must be *voluntary, knowing, and intelligent*, the defendant must be *competent*, and before the court accepts the plea, the court must find that there is a factual basis for the guilty or nolo contendere plea.

Question 85

What is the difference between a plea of guilty and a confession to law enforcement?

Answer 85

A confession does not *eliminate the need for a trial*.

Question 86

Can the court participate in plea bargaining?

Answer 86

No. Only the counsel for the defendant and the prosecution may participate. The parties must disclose the plea agreement in open court when it is offered.

Question 87

How can a court respond to a plea agreement?

Answer 87

It can accept, reject, or defer the agreement.

Question 88

When can a defendant withdraw a guilty plea or nolo contendere plea?

Answer 88

The defendant can withdraw the plea for any reason before the court accepts the plea. *After the court accepts the plea*, the defendant may withdraw only if (i) the court rejects the plea, or (ii) the defendant provides a fair and just reason for withdrawing the plea. *After sentencing*, a defendant may not withdraw a guilty plea or a nolo contendere plea.

Question 89

What is the standard for the government to prove a defendant breached a plea agreement?

Answer 89

The government must prove the breach beyond a *preponderance of the evidence* to the court.

Question 90

What are the protections of the Fifth Amendment's double jeopardy clause?

Answer 90

(i) a defendant cannot be prosecuted for the same offense for which the defiant has be been previously acquitted or convicted by the *same sovereign*; and (ii) *multiple punishments& by the same sovereign are not allowed for the *same offense*

Question 91

When does jeopardy attach to a criminal proceeding?

Answer 91

Jeopardy attaches at the point that the defendant faces a *potential determination of guilt*. That is (i) when the jury is empaneled and sworn or (ii) when the Judge begins to hear evidence in a bench trial or (iii) when the court accepts a plea.

Question 92

What is the same-offense requirement of the double jeopardy clause of the Fifth Amendment?

Answer 92

The protection only extends to the *same offense* which must be the same issue both in fact and law.

Question 93

When does jeopardy terminate / when is it decided?

Answer 93

When (i) a judge or jury convicts, (ii) when a judge accepts a guilty plea, or (iii) when the case is acquitted.

Question 94

What is the collateral estoppel (issue preclusion) effect of double jeopardy in the Fifth Amendment?

Answer 94

If a *specific issue* is raised and litigated and the defendant countess the issue, the government is bound by that finding in any subsequent criminal proceeding against the defendant.

Question 95

What is the dual-sovereign doctrine in relation fo the double jeopardy clause of the Fifth Amendment?

Answer 95

The federal government is a different sovereign from each of the state governments, and the state governments are different from each other. A state and its municipalities are the same sovereign. So, an individual can be prosecuted in multiple states for the sam offense.

Question 96

What are the defendant protections by the Eighth Amendment?

Answer 96

The Eight Amendment (i) limits what *criminal behavior* may be punished, (ii) prohibits certain *types of punishment* and (iii) prohibits punishment that is *grossly disproportionate to the severity of the offense*

Question 97

How does a court determine if punishment is proportional to the offense?

Answer 97

Courts use three criteria to analyze proportionality: (i) the gravity of the offense as compared to the harshness of the penalty; (ii) the sentence imposed on a particular defendant as compared to those imposed for various offenses within the same jurisdiction; (iii) the sentence imposed on a particular defendant compared to those imposed for the same or similar offense in other jurisdictions.

Question 98

What is the concept of the criminal burden of proof/persuasion?

Answer 98

The burden of proof is the party's obligation to introduce evidence that persuades the fact-finder that a particular proposition of fact is true.

Question 99

What does the Due Process Clause of the Fifth Amendment require for the government's burden of proof in a criminal case?

Answer 99

The government *must prove every element of a criminal offense beyond a reasonable doubt*

Question 100

Who has the burden of proving an affirmative defense in a criminal matte?

Answer 100

The defendant.

Question 101

What is a *mandatory* presumption for a fact-finder in a criminal trial?

Answer 101

A fact-finder must infer the elemental fact (the element of a crime) if the government proves certain basic facts beyond a reasonable doubt.

Question 102

What is the *permissive* presumption for a fact-finder in a criminal trial?

Answer 102

The permissive presumption allows a act-finder to presume the elemental fact of the crime if the government proves certain basic facts beyond a reasonable doubt.

Question 103

In a criminal matter, what is the final judgment that can be appealed?

Answer 103

The imposition of the sentence.

Question 104

Does a Defendant have a Constitutional Right to appeal a conviction?

Answer 104

No. But he has a statutory right to appeal a criminal conviction.

Question 105

Can the Government appeal an acquittal?

Answer 105

Generally, No. The Double Jeopardy Clause of the Fifth Amendment bars the government from appealing the fact-finder's verdict of acquittal or the trial court's dismissal of a charge based on insufficient evidence or judgment of acquittal.

Question 106

What appeals are available to the Government in the criminal process?

Answer 106

(i) the government can appeal a pre-trial dismissal of charges; (ii) the government can appeal a trial court ruling setting aside a jury conviction or dismissing charges on grounds not related to guilt or innocence; and (iii) the government can appeal sentencing errors

Question 107

What is a *plain error* in a criminal trial?

Answer 107

a *clear or obvious* error that affects a defendant's *substantial rights.*. Courts are more likely to find plain error if the defendant's constitutional rights are violated.

Question 108

What is a *harmless error* in a criminal trial?

Answer 108

An error that was *unlikely to have an affect on the trial's outcome*.

Question 109

What is a *structural error* in a criminal trial?

Answer 109

An error that *fundamentally undermines the reliability or fairness* of the trial. Structural errors *require* that the trial judgment be reversed.