Criminal Procedure [the essentials]

Question 1

Important Constitutional Amendments

Answer 1

4th Amendment: no unreasonable search and seizure + Exclusionary Rule
5th Amendment: privilege against self-incrimination
6th Amendment: Right to:
-speedy trial
-public trial
-trial by jury
-confront witnesses
-assistance of counsel
8th Amendment: prohibition against cruel + unusual punishment/excessive fines

Question 2

4th Amendment

Answer 2

No unreasonable search + seizure

Question 3

Reasonable Expectation of Privacy

Answer 3

person is granted protection from unreasonable government searches

Search occurs when government conduct violates a persons reasonable expectation of privacy

Question 4

Warrant Requirements

Answer 4

Search warrant must be
1) issued by a neutral magistrate
2) based on probable cause
3) describe the place and property to be searched with particularity

Warrantless search violates reasonable expectation of privacy = unlawful

Question 5

Warrant Exceptions

Answer 5

ESCAPES
1) exigent circumstances
2) search incident to lawful arrest
3) consent
4) automobiles
5) plain view
6) evidence obtained from administrative searches
7) stop and frisk

Question 6

Exigent Circumstances

Answer 6

1) officers are in hot pursuit or are in immediate danger OR
2) the evidence would spoil or disappear in the time it would take to get a warrant

Question 7

Search incident to a lawful arrest

Answer 7

search occurs at the time a lawful arrest is made

scope of search limited to objects within reach of arrestee

Question 8

Automobiles

Answer 8

If officers have probable cause to believe that a car contains contraband or evidence of a crime

Can search parts of the vehicle and containers inside that could reasonably contain the items for which there is probable cause

Question 9

Plain View

Answer 9

1) officers are legally on the premises
2) the evidence is observed in plain view AND
3) there is probable cause to believe that the items are evidence of a crime or contraband

Question 10

Stop and Frisk

Answer 10

Can stop someone if officer has a reasonable suspicion based on articulable facts that subject is or is about to be engaged in criminal activity

During Terry stop–officer can frisk a subject for weapons without a warrant but cannot initiate a search for evidence
IF frisk for weapons reveals objects whose shapes make their ID obvious–officer may seize objects

Question 11

Public School Searches

Answer 11

warrant or PC not required
ONLY NEED REASONABLE GROUNDS
Held to be reasonable if:
(1) offers moderate chance of finding evidence of wrongdoing
(2) measures reasonably related to search objectives
(3) search not unnecessarily intrusive in light of age/sex of kid + nature of infraction

Question 12

5th Amendment

Answer 12

Right against self-incrimination + Miranda

Provides that no person will be compelled to be a witness against themselves

Question 13

Custodial Interrogation

Answer 13

Custodial: person is in custody when he reasonably believes that he is NOT free to leave

Interrogation: when police know or should know that their words or actions are likely to elicit an incriminating response

Any incriminating statement obtained asa result of custodial interrogation (suspect is in custody and subject to police interrogation) may not be used against suspect unless informed of their Miranda rights

Question 14

Invocation of Miranda Rights

Answer 14

MUST CEASE INTERROGATION IF:
1) party affirmatively invokes right to remain silent (after substantial period of time–police can ho back and give warnings again and interrogate further)
2) party affirmatively invokes right to counsel
(cannot resume until lawyer is present, subject reinitiates the interrogation, or 14 days have passed since release from custody)

Question 15

Miranda Violations

Answer 15

inadmissible in case in chief
but can be used to impeach D

Exceptions:
1) when publics safety is at risk
2) when suspect not aware questioner is an officer
3) bio questions for booking purposes

Question 16

Coercion

Answer 16

Involuntarily obtained statements are NOT admissible against D for substantive or for impeachment purposes

-evidence obtained from an involuntary statement is fruit of the poisonous tree and is presumptively inadmissible

Question 17

Arrest

Answer 17

When police take person into custody against their will for prosecution/interrogation
-must be based on PROBABLE CAUSE

PROBABLE CAUSE: trustworthy knowledge or facts sufficient to believe that the subject has/or is committing a crime for which arrest is OK

Warrant: is generally not required in a public place

Station house detention: Must have full PC in order to arrest suspect and bring to station for Qs and finger printing

Invalid Arrest: by itself will not affect subsequent prosecution

EXCEPTION TO WARRANT REQUIREMENT: search incident to valid arrest
(1) police can search after valid arrest
(2) can make protective sweep of the area
(3) search must be contemporaneous in time + place with arrest

Cars [incident to arrest]: may search if
(1) arrestee is unsecured + may still gain access to interior
(2) police reasonably believe that evidence of offense person arrested for might in be in car
NOT GETTING IN THE TRUNK

Odds + Ends:
-warrantless breath test permitted but not blood test
-physical attributes of phone may be searched but NOT data

Question 18

Evidentiary Search + Seizure

Answer 18

4th Amendment

Analysis:
(1) governmental conduct? [also includes those acting at behest of police]
(2) standing?
(3) Warrant?
(4) If no warrant–exception?

Question 19

Standing

Answer 19

In order to object to evidentiary search + seizure must have STANDING

Must have a reasonable expectation of privacy in the place searched or objected taken
Analysis: TOC

Automatic Categories of Standing:
(1) person owned or had right to possession of the place searched
(2) place searched was their home [owned or not]
(3) person was overnight guest of owner

Question 20

Wiretapping + Eavesdropping

Answer 20

Constitutes search under 4th Amendment

Valid Warrant acquired if:
(1) there is a showing of PC
(2) the suspected persons involved in the conversations are named
(3) warrant describes with particularity convos that would be overheard
(4) limited to short period of time
(5) terminated when desired info obtained
(6) return to court–show that convos have been intercepted

Question 21

Method of obtaining evidence that shocks the conscience

Answer 21

Inadmissible under DP if offends a sense of justice

Question 22

Confessions

Answer 22

Involve 4th, 5th, 6th and 14th Amendments

Question 23

Confessions: 14th

Answer 23

14th Amendment: voluntariness
-for a self incriminating statement to be admissible must be voluntary
Analysis: TOC

Harmless Error Test applies–if involuntary comes in conviction does not need to be overturned if other overwhelming evidence of guilt

Question 24

Confessions: 6th

Answer 24

6th Amendment: Right to Counsel
Applies to all critical stages of prosecution after FORMAL CHARGES HAVE BEEN FILED
Not applicable at:
-blood sampling
-writing/voice lineups
-photo IDS
-preliminary hearings determining PC to detain
-discretionary appeals

Offense Specific: even if 6th amendment rights attach regarding charge held for–D can be questioned regarding unrelated/uncharged offenses
[could be a Miranda issue tho]
-two offenses are different if there are additional elements that must be proved

Waiver:
Can be waived
Knowingly + Voluntary

Remedy:
Non-trial proceedings: harmless error
Trial proceedings: failure to provide lawyer if entitled results in automatic reversal of convictions

Impeachment: if statement obtained in violation cannot be used in case in chief
CAN BE USED IN IMPEACHMENT

PRE-Trial ID:
entitled at any post-charge line up or show to counsel
-no right at photo IDs
DP standard: ID denying DP = unnecessarily suggestive + substantial likelihood of miss-ID

Remedy: unconstitutional ID = exclude ID
But witness can make an in court IF if there is an independent source

Question 25

Exclusionary Rule

Answer 25

Unconstitutionally obtained evidence excluded at trial
Judge made rule

Fruit of the Poisonous Tree: evidence obtained from exploitation of unconstitutionally obtained evidence
Exceptions: MI3
(1) fruits derived from statement in violating of Miranda
(1) independent source
(2) intervening free will
(3) inevitable discovery

Good Faith Reliance on Defective Warrant: will not be excluded unless:
(1) affidavit underlying warrant so lacking in PC no reasonably officer would rely
(2) affidavit so lacking in particularity no reasonable officer would rely on it
(3) officer or prosecutor lied/misled magistrate
(4) magistrate is biased

BUT: excluded evidence can be used for impeachment purposes
Voluntary confessions in violation of Miranda
Evidence from illegal search can be used to impeach D

Harmless Error Test: if illegal evidence admitted conviction overturned unless gov can show harmless error

Question 26

Grand Juries

Answer 26

5th Amendment Right to GJ Indictment
Not incorporated re the states but some do it

How it works:
-conducted in secret and D has no right to notice, to be present, to confront witnesses or to bring evidence
-witnesses = no right to counsel and no Miranda
-no right to have any evidence excluded
-no right to challenge subpoena’s re PC

Question 27

Speedy Trial

Answer 27

6th Amendment
-question of violation determined TOC

Factors:
-length of delay
-reason for delay
-whether D asserted right
-prejudice to D

Remedy: dismissal with prejudice

Right attach: once D has been arrested or charged
-D does not need to know charges for right to attach

Question 28

Prosecutors Duty to Disclose Exculpatory Evidence

Answer 28

Brady!

Failure to disclose [willful or inadvertent] = DP violation

Grounds for reversal if D shows:
(1) evidence is favorable to D because impeaches or is exculpatory
(2) prejudice has resulted that there is a reasonable probability that result of case would have been different

Question 29

Competency to stand trial

Answer 29

VS. Insanity

Insanity: defense to criminal charge
-about SOM when crime was committed

Incompetency: about SOM at trial of trial
-if later regain competency–can be tried then

Question 30

Right to unbiased judge

Answer 30

Due process is violated if the judge is shown to have actual malice against the defendant or to have had a financial interest in having the trial result in a guilty verdict.

Question 31

Right to Trial by Jury

Answer 31

Only for offenses that are 6+ months generally
-no right for juvenile delinquent proceedings

-must be at least 6 jurors
-jury verdicts must be unanimous

Jury Selection:
D has right to jury selected from representative cross section of community
-D has right to how underrepresentation of distinct + numerically significant group to show right violated
DOES NOT HAVE RIGHT TO PROPORTIONAL REPRESENTATION

Right to Impartial Jury:
-juror should be excluded for cause if views would prevent or substantially impair performance of duties

Right to questioning re racial bias:
D is entitled to this during voir dire when race is a part of the case or interracial capital crime

Question 32

Right to counsel at trial waiver

Answer 32

D may waive as long as knowing + intelligent
-judge will decide if D competent to continue pro se
-no right to self-rep on appeal

Question 33

Effective Assistance of Counsel

Answer 33

6th Amendment right to counsel
Right extends to first appeal

Ineffective Assistance Claim must show:
(1) deficient performance by counsel
(2) BUT FOR DEFICIENCY–result would have been different [no conviction/shorter sentence]

-D must point to specific deficiencies
-cannot be based on inexperience, lack of time to prepare etc