Definitions

Question 1

Fourth Amendment

Answer 1

Applicable to the states via the 14th Amendment.

The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the persons or things to be seized.

Question 2

Fifth Amendment

Answer 2

Applicable to the states via the 14th Amendment

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

Question 3

Sixth Amendment

Answer 3

Applicable to the states via the 14th Amendment

In all criminal cases, the accused shall enjoy the right to have the assistance of counsel for his defense.

Question 4

Eighth Amendment

Answer 4

Guarantees that no excessive bail shall be required. Most state constitutions have their own excessive bail clauses.

Question 5

Search

Answer 5

Any governmental intrusion upon a reasonable expectation of privacy.

Question 6

Three Elements for a Search with a Warrant to be Reasonable

Answer 6

1. Warrant issued by a neutral magistrate.
2. Warrant must describe the things to be siezed or persons to be searched. A clear lack of particularity invalidates both the warrant and a possible claim of good faith reliance
3. Based on a sworn affidavit establishing probable cause to justify the search.

Question 7

Probable Cause

Answer 7

Exists where the facts and circumstances within the affiant’s knowledge are sufficient to warrant a person of reasonable caution to believe that the evidence in question will be found.

Question 8

Six Elements for an Electronic Surveillance Warrant to be Issued

Answer 8

1. Conversations must be described with particularity
2. Probable cause must exist that a crime has been or is being committed
3. Wiretapping must be limited in time (30 day maximum initially)
4. Suspects must be named.
5. Police required to return to court showing what conversations were recorded; and
6. Wiretap must terminate when desired information obtained.

Question 9

Exceptions to Warrantless Searches

Answer 9

CAL SIPS PEPSI

1. Consent
2. Auto Search
3. Licensing/Administrative Power
4. Search Incident to Arrest
5. Impoundment
6. Plain View
7. School Child
8. Public Policy
9. Exigent Circumstances
10. Probation/Parolees
11. Stop/Frisk
12. Inventory

Question 10

Three Elements to Search Incident to Lawful Arrest

Answer 10

1. Search only allowed in defendant’s lunge span.
2. Includes entire passenger compartment and any containers found.
3. Full inventory search at police station is valid.

Question 11

Three Elements Required for Plain View Exception

Answer 11

1. Police legitimately on premises
2. Police discovered objects that they have probably cause to believe are contraband or fruits or instrumentalities of crime.
3. Evidence was in plain view

Question 12

Stop and Frisk Exception (Terry Stop)

Answer 12

The stop and frisk right to detain and question is based on “articulable reasonable suspicion that criminal activity is afoot” when considering the totality of the circumstances.

Question 13

Consent

Answer 13

An individual may consent to a search waiving his 4th Amendment rights but the decision must be voluntary and intelligent based on the totality of the circumstances.

Question 14

Seizure

Answer 14

The exercise of dominion/control by the government over a person or thing.

Question 15

Exclusionary Rule

Answer 15

Evidence obtained by an illegal search or seizure is not admissible in a criminal proceeding against the victim of the search or seizure as proof of guilt.

Question 16

Standing

Answer 16

Defendant must establish that he was directly aggrieved by the illegal conduct.

Question 17

Fruit of Poisonous Tree

Answer 17

Applies to evidence seized as a direct result of the illegality and also to information or secondary evidence obtained indirectly which was obtained as a result of primary police misconduct.

Applies to

1. Witnesses
2. Statements
3. Identification
4. Information; and
5. Objects

Question 18

Dissipation of Taint

Answer 18

Confessions resulting from an unlawful seizure may be admissible in some circumstances. Courts consider factors such as whether Miranda rights were given, the closeness in time of the detention and the confession, the purpose of the government action and the flagrancy of the government behavior.

Question 19

Independent Source Rule

Answer 19

If the police obtained evidence from an independent source not connected to the illegal search or seizure, the evidence is admissible.

Question 20

Inevitable Discovery Rule

Answer 20

If the police would have discovered the evidence regardless of their illegal conduct, it may be admitted.

Question 21

Four Elements to Miranda Warning

Answer 21

1. Right to remain silent
2. Any statement can and will be used against D.
3. Right to have an attorney present
4. Right to have an attorney appointed if D can’t afford one.

Question 22

Waiver of Miranda

Answer 22

Police can initiate questioning if suspect knowingly and intelligently waives his rights under the totality of the circumstances.

Question 23

Double Jeopardy

Answer 23

No person shall be subject, for the same offense, to be twice put in jeopardy. This is applicable to the states via the 14th Amendment.

Question 24

Four times when Double Jeopardy Attaches

Answer 24

1. Jury Trial: When jury is impaneled and sworn in.
2. Non-Jury Trial: When first witness sworn.
3. When presiding judge ends trial.
4. Commencement of juvenile proceedings.

Question 25

Three times when Double Jeopardy does not Attach

Answer 25

1. Hung juries 2. Mistrials 3. Dual sovereignties

Question 26

Right to Counsel at Trial and Non-Trial Proceedings

Answer 26

Trial Proceedings: Counsel must be available in all felony prosecutions plus any other prosecution (misdemeanor) as to which there is an actual loss of liberty. Non-Trial Proceedings: The defendant is entitled to assistance of counsel at any critical stage of the proceeding where the substantial rights of the accused may be affected.

Question 27

Right to Effective Counsel

Answer 27

The 6th Amendment provides the right to be represented by effective counsel. The issue is whether the counsel's representation fell below an objective standard of reasonableness. Defendant must show: 1. Deficient performance by counsel; and 2. But for the deficiency, there is a reasonable probability that the result of the proceeding the result would have been different.

Question 28

Waiver of Right to Counsel

Answer 28

D must be advised of the right and be competent to knowingly, intelligently and voluntarily abandon the right and the trial judge must determine the competency of the defendant's ability to waive.

Question 29

Right to Confrontation

Answer 29

The 6th Amendment provides that "In all criminal proceedings, the accused shall enjoy the right to be confronted with the witnesses against him." Confrontation is deemed a fundamental right and is applicable to the states under the Due Process Clause of 14th Amendment. The accused must have a right to be physically present in the courtroom during the course of the trial.

Question 30

Confrontation Clause and Hearsay Evidence

Answer 30

Out-of-Court statements are not admissible unless 1) they are not testimonial and they are reliable hearsay; or; 2) there will be in-court confrontation; or 3) the witness is truly unavailable and the defendant's counsel and an opportunity to cross-examine at a prior hearing.

Question 31

Testimonial Evidence

Answer 31

Testimony given at a preliminary hearing, grand jury, or former trial, as well as statements taken by police in the course of interrogations. The primary purpose is to produce the equivalent of testimony for later use at trial.

Question 32

Four considerations that the court looks at if the defendant has been deprived of a speedy trial

Answer 32

LRAP 1. Length of delay 2. Reason for the delay 3. Assertion of the right; and 4. Prejudicial impact.

Question 33

Right to Trial by Jury

Answer 33

The 6th Amendment Amendment guarantees a right to a jury trial only where a serious offense is charged and a serious offense is one which entails a potential sentence of more than six months.

Question 34

Jury size (Federal and state)

Answer 34

Federal: Twelve person jury and vote must be unanimous State: Minimum of six jurors and vote must be unanimous. However, if twelve person jury, a non-unanimous vote can convict.

Question 35

Cruel and Unusual Punishment

Answer 35

Cruel and unusual punishment is prohibited if it is excessive (disproportionate to the crime) and barbaric (too cruel to be appropriate punishment for any crime).