MBE and NY Distinctions (Crim Pro) Flashcards Preview

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Flashcards in MBE and NY Distinctions (Crim Pro) Deck (63):

Double Jeopardy

In NY, what constitutes the same offense?

All crimes arising from a similar criminal transaction MUST be tried together.


Rosario: Prosecutorial

Duty to Disclose

What is the remedy if the prosecutor fails to make the required Rosario disclosures?

Prejudice for Reversal


Reversal ONLY if the Δ can show that there is a reasonable possibility that non-disclosure materially contributed to the result of the trial.



What kind of immunity does one receive in NY?

Transactional immunity broader that both (1) use, and (2) derivative use.


Transactional immunity gives immunity about any transaction about which you testify in response to questions.


Grand Juries in NY

 Does GJ witness have the right to testify before the GJ?

Provided Δ/witness waives immunity, he is entitled to the opportunity to testify before GJ.


Rosario: Prosecutorial

Duty to Disclose

What 4 other disclosures are required?

4 Additional Disclosures in a Criminal Trial


Between time a jury is sworn and prosecutor’s opening statement, prosecutor must give Δ the prior written or recorded statements of witnesses that she intends to call at trial and any of their known criminal records.
Δ must notify prosecutor w/i 30 days of not-guilty plea if Δs intention to use the insanity defense.
Notice of Alibi: w/i 20 days of arraignment, prosecutor may serve Δ with a demand for the alibi defense, and Δ must respond within 8 days.
Before Δ’s case on Direct, Δ must make available to prosecutor any prior relevant written or recorded statements by a defense witness


Grand Juries in NY

What kind of immunity does a GJ witness receive?

GJ witness receives immunity from prosecution for any transaction about which is testifies (in response to a GJ question).


Rosario: Prosecutorial

Duty to Disclose

What 8 things may

criminal Δ get from

NYS on demand?

8 Required Rosario Disclosures


On demand Δ may obtain from prosecutor:

Δ’s or co-Δ’s statement to PD/GJ
Tapes/bugged conversations to be used at trial.
Relevant photos or drawings made by PD
Reports of physical/mental/scientific tests
Any other property obtained from the Δ
Approximate date, time, place of offense charged
Brady Disclosures (exculpatory evidence)
All specific instances of Δ’s conduct that prosecutor intends to use at trial for impeachment.


6th Amendment Right to Counsel

 Does a suspect have the right counsel at an investigatory line-up?

A suspect does not have a right to counsel at an investigatory line-up, before formal prosecutorial action, unless:

Police are aware that suspect is represented by counsel on another charge, AND
Suspect requests his attorney.


Grand Juries in NY

 What kind of evidence

is required to support

a GJ indictment?

GJ Indictment MUST be supported by legally sufficient (admissible) evidence.


6th Amendment Right to Counsel

How can a criminal Δ

waive his 6th Amendment Right to Counsel in NY?

Waiver may be obtained from a criminal Δ who is actually and known to be represented by counsel ONLY in the presence of counsel.


Otherwise, voluntary, knowing and intelligent.


Grand Juries in NY

Is there a right to counsel in GJ investigations?

GJ witness w/immunity à no counsel in GJ room
GJ witness w/o immunity à may bring counsel into GJ room


Police Detentions

What are the 4 categories of police detention in NY?

What is required for each?

4-Step Sliding Scale of PD Authority for Detentions:


Request for Information

Not on whim or caprice
Refusal to answer NOT sufficient for PC


C/L Right to Inquire

Founded suspicion that criminal activity afoot
Brief detention; release w/adequate answers


Stop-and-Frisk (RS)


Arrest (PC)


Search & Seizure

What is required to be on a warrant in NY?  Good faith exception available in NY?

3 Requirements for Warrant


PC: informant’s tip must meet two-prong test

Sufficient underlying facts and circumstances to allow magistrate to know how informer got info.
Establish the reliability and credibility of informant (success rate)

Precise on its Face
Neutral and Detached Magistrate


Good faith reliance on invalid warrant is NOT an exception to the warrant requirement in NY.


Exclusionary Rule

In NY, which of the normal limitations on exclusion does NOT apply?

In New York, good faith reliance

on defective search warrant is

NOT a defense to exclusion.


6th Amendment Right to Counsel

When does 6th Amendment Right to Counsel attach in NY?

Greater Right to Counsel in NY


Indelible right to counsel attaches in the following 4 situations

Δ is in custody and police are engaging in activity overwhelming to the layperson, AND Δ requests counsel, or
At arraignment, or
Upon the filing of a formal charge, or
Any significant judicial activity.


However, right can be waived after it attaches.


5TH Amendment Right Against Compelled Testimony

What does the privilege protect?  What is

outside its scope?

Does NOT protect Δ from using body to indict her

Real/physical evidence: not compelled testimony (e.g. hair, sample, fluids)
E.g. NYS Ct. App: okayed introduction of tattoos in hate crime prosecution (physical evidence).


DOES Protect  Δ from Compelled Testimony

E.g. lie detector or custodial police interrogation



6th Amendment Right to Counsel

Chart on Right to Counsel

in Trial Process


Applies: (1) custodial PD interrogation; (2) post indictment interrogation; (3) preliminary hearings to determine PC to prosecute; (4) arraignment; (4) post-line-up charge.

Does NOT Apply: (1) blood samples; (2) handwriting/voice exemplars; (3) preliminary hearings to determine PC to detain



Applies: (1) Felony trials; (2) misdemeanor where jail is imposed or suspended sentence; (3) guilty pleas



Applies: (1) sentencing hearings; (2) appeals as a matter of right

Does NOT Apply: (1) discretionary appeals; (2) post-conviction proceedings (e..g. habeas); (3) parole and probation revocation.


5TH Amendment Right Against Compelled Testimony

Who can claim the privilege and in which proceedings?

Anybody can claim 5th Amendment privilege in any proceeding

(e.g. criminal, civil, congressional).


However, it is waived if you don’t invoke it the first time you are asked the specific question under oath.


5th and 6th Amendments

Flow Chart on Admissibility of Δ’s Statements


Double Jeopardy

On MBE, what constitutes

the same offense?

On MBE, 2 crimes are the “same offense” if each crime requires proof of an additional element that the other does NOT require.


Lesser/Greater Included Offenses: if you are tried for one, you can’t be tried for the other

E.g. Larceny + Assault = Robbery
BUT, if you tried for battery, then victim dies, you can be tried for the murder.


Double Jeopardy

What is the general rule?

Double Jeopardy


Under the 5th Amendment, a person may not be retried by the same sovereign for the same offense once jeopardy has attached.


Double Jeopardy

What are the 4 exceptions permitting retrial for the same offense after jeopardy has attached?

Four Exceptions Permitting Retrial for Same Offense After Jeopardy has Attached


Hung Jury: jury unable to agree on a verdict.
Mistrial for Manifest Necessity (e.g. Δ gets sick); if case dismissed at behest of Δ, not on merits.
Retrial After a Successful Appeal
Breach of an Agreed-Upon Plea Bargain by Δ

If Δ breaches bargain, the sentence can be withdrawn and original charges reinstated.


Double Jeopardy

What are separate sovereigns?

Separate Sovereigns


Two States Are NOT the Same Sovereign
State & Federal Are NOT the Same Sovereign
State & Municipality ARE the Same Sovereign


Guilty Pleas

What are sufficient bases

for withdrawal of guilty

plea after sentence?

USSC: Contract theory of pleas, and Court generally unwilling to disturb pleas.


4 Bases of Plea-Withdrawal After Sentence

Court’s Lack of Jurisdiction
Ineffective Assistance of Counsel
Prosecutor’s Breach of Agreed-Upon Bargain


Double Jeopardy

When does jeopardy attach in a jury trial?  Bench trial?

Jeopardy Attaches:

Jury Trial: when the jury is sworn.

Bench Trial: when the first witness is sworn.


Jeopardy does NOT attach in civil proceedings, other than juvenile trials.


Guilty Pleas

What are the requirements for a finding of a valid plea?

On record, judge must engage in constitutionally-required colloquy with Δ to ensure:

Voluntariness, and


Requirements of Record:

Address Δ Personally (NOT counsel)
Nature of Charge
Max. Authorized/Any Mandatory Min. Sentence
Right to Plead Not Guilty and Get Trial


Remedy: Δ may withdraw plea and start again.


Death Penalty

4 Important Issues for Any Death Penalty Question

Death penalty statute that doesn’t give Δ chance to present mitigating facts is unconstitutional.


There can be no automatic category for imposition of death penalty.


The state may not, by statute, limiting the mitigating factors; statute must allow all mitigating factors.


Jury, not judge, may determine the aggravating factors justifying imposition of the death penalty.


Right to a Jury Trial


Requirement for Juries

Jury pool must reflect a fair cross-section of the population, however no right for Δ’s particular jury to be so-representative.


HOWEVER, preemptory challenges based on race or gender are unconstitutional, whether utilized by the Δ or the State.


5TH Amendment Right Against Compelled Testimony

What are the 3 situations where privilege against compelled testimony does NOT apply?

3 Ways 5th Amendment Priv. Can Be Eliminated


MBE Grant of Immunity: use & derivative use
No possibility of incrimination: i.e. SOL
Waiver: by taking witness stand criminal Δ waives 5th Amendment privilege.


Right to a Jury Trial

Number & Unanimity

of Jurors

Minimum of 6 Jurors

Verdict Must be Unanimous.


No Constitutionally Protected Right to a Unanimous 12 Person Jury

9 – 3 was OK


Ineffective Assistance

of Counsel

What is required?

A claim for ineffective assistance of counsel (Strickland Claim): requires Δ to show:


Deficient Performance By Counsel, AND
But For Such Deficiency, the Result of the Proceeding Would Have Been Different


Miranda: 5th Amendment

Right Against Self-Incrimination

In which situations does Miranda not apply?


Right to a Jury Trial

When is there a constitutional right

to a jury trial?

Maximum Authorized Sentence > 6 Months


If the maximum authorized sentence exceeds 6 months, then there

is a constitutional right to a jury trial.  Otherwise, no such right.


Miranda: 5th Amendment

Right Against Self-Incrimination

When can/can’t PD

interrogate a suspect?

PD Interrogation Timeline


CAN: Prior to arrest/custody
CANNOT: After arrest, before warnings.
CAN: After warnings
CANNOT: After Δ invokes rights.


6th Amendment Right to Counsel

What are the characteristics of the 6th Amendment right?

Attaches on commencement of formal adversarial proceedings.


Bars PD Action that is deliberate elicitation after commencement, but doesn’t require custody


Crime Specific (b/c only attaches once formal proceedings begin).


After Invocation, No PD Surreptitious Methods.


Terry Stops and RS

Compare RS and PC

Reasonable/articulable suspicion can be established by both:

Less evidence than PC, and
Less-reliable evidence than PC.


But, situations that do NOT alone, establish RS:

Anonymous tip w/NO familiarity w/person’s affairs & no prediction of future behavior
Presence in high crime area, alone.
Flight from PD, alone.



Warantless Searches

What are other situations where government can search without either a warrant or PC?

Searches w/Neither Warrant Nor PC


Roadblocks for DWI, Immigration Near the U.S. Border (fixed);
Consent Searches
Schools (Balance Test Allows Drug Testing, Other Searches)


Terry Stops & RS

How does a stop & frisk differ from arrest or other seizure that requires PC?

Terry Stops


Terry stop ONLY requires RS.
Because Terry stop balances government interest against privacy intrusion, narrower searches are permitted for other-than-weapons, and broader searches for weapons.
Terry stop looks at

Length of Detention, and
Limitations on Movement


Terry stops can include property (e.g. luggage).


Warrantless Searches

What are the 4 ways PD

can search a car, and with what level of suspicion?

Searching Cars


No Suspicion: Request Consent Search

RS: Terry stop

PC: search any area that PC takes PD

SITA: wingspan (not including trunk)



6th Amendment Right to Counsel

On MBE, what topics can

PD question a criminal Δ

on after she has asserted

her 6th Amendment

Right to Counsel?

6th Amendment Right to Counsel is offense-specific, so PD CAN question suspect about other crimes/subjects after invocation.


Exceptions to Warrant Requirement: The Basic Rule

What is the basic rule regarding warrants?

Searches conducted outside the judicial process without prior approval by judge or magistrate are per se unreasonable under the 4th Amendment, subject to a few specifically established and well-delineated exceptions. Katz


However, the exceptions taken cumulatively make the exceptions largely the rule.


Pretrial Identification

What are the two bases

to attack pretrial ID? Remedy?

Denial of Right to Counsel

Post-charge line-ups and show-ups give rise to a right of counsel (NOT pictures, though).


Denial of Due Process of Law

Line-up so unnecessarily suggestive (likely to produce misidentification).


Remedy: exclude, UNLESS prosecution

can show an independent source.



Bail issues are immediately appealable.


Preventative detention is constitutional.


Miranda: 5th Amendment

Right Against Self-Incrimination

What circumstances require PD to give Miranda warnings?


Two Prerequisites to Miranda



Reasonable person in Δ’s position would have believed himself to be deprived of freedom in a significant way.
Includes police station, hospital bed, but not probation interviews or traffic stops.



PD knew or should have known might solicit a damaging response.



(Most Terry stops do NOT implicate Miranda.)



Miranda: 5th Amendment

Right Against Self-Incrimination

What happens after a party asserts right to counsel?

USSC created 5th Amendment right to counsel as a prophylactic measure to protect against self-incrimination.


Once Δ asserts right, re-interrogation of Δ w/o his attorney violates the 5th Amendment:

Not offense-specific.


Warrant Requirement

Does wiretapping

require a warrant? 

What is the unreliable ear?

Wiretapping and eavesdropping generally require a warrant, EXCEPT:


Unreliable Ear: no expectation of privacy in conversation with “wired” government informant, even in Δ’s home.


Miranda: 5th Amendment

Right Against Self-Incrimination

What is required to waive the Miranda warnings?

Valid Miranda Waiver:

Knowing, Voluntary, & Intelligent.


Full awareness of both nature of the right being abandoned and the consequence

Silence/shoulder shrugging: NOT waiver
However, PD not telling Δ that his lawyer wanted to talk to him was OK.


Exceptions to Warrant Requirement: Stop & Frisk/Terry Stop

What does the court

balance to determine if

a PD action is a Terry stop?

Stop & Frisk Only Requires RS


To determine if a seizure is a stop-and-frisk (Terry Stop), balance:

Nature & extent of government interest
Against privacy intrusion.


Exceptions to Warrant Requirement: Hot Pursuit

PD in immediate pursuit of a subject don’t need a warrant to make a search. 


Moreover, once PD enter a home while in pursuit, there are NO other limitations:

NO wingspan limitation.
Can include anything they found, even if NOT related to fleeing felon.


Exceptions to Warrant Requirement: Consent

Consent must be (1) voluntary, & (2) intelligent


PD do NOT have to warn person re: right to refuse for it to be voluntary and intelligent.
HOWEVER, PD CANNOT lie and state that they have a warrant when they don’t.
3rd Party Consent: if +1 person has equal right to use property, any can consent


Exceptions to Warrant Requirement: Evanescent Evidence

If the evidence would likely disappear if PD took the time to get a warrant.


Exceptions to Warrant Requirement: Search Incident to Lawful Arrest

What are the requirements of

the search incident to a lawful arrest warrant exception?

Requirements for

Search Incident to a Lawful Arrest Exception:


Arrest is lawful (PC)
Search: Contemporaneous in time/place

Search of the person
Areas within arrestee’s wingspan

NY v. Belton: wingspan includes passenger compartment BUT NOT trunk for arrest in car.


(But PD can search anywhere in car where PC takes them.)


Exceptions to Warrant Requirement: Plain View

What is the key to the

plain view exception to

the warrant requirement?

The police officer must legitimately be present where she does the viewing.


Exceptions to Warrant Requirement: Summary of the Exceptions


Exigent Circumstances:

Emergency Situations (circumscribed by the exigency)
Fleeing Suspects/Hot Pursuit
Evanescent Evidence
Community Caretaking


Plain View (fruits, instrumentalities, evidence of crime)


Automobile Exception (wherever PC takes them)


Arrests (public felony; misdemeanor in front of PD)


Search Incident to Arrest (person and area within control;

if in car, doesn’t include trunk, but if PD has PC, anywhere)


Multi-Unit Building: if police reasonably search the wrong unit in such a building = evidence found is admissible.


Exceptions to Warrant Requirement: Automobile Exception

What is the standard for the automobile exception to the warrant requirement?

PD may search an automobile and containers within it w/o a warrant where they have PC to believe contraband or evidence is contained.


E.g. if PD has PC to believe illegal aliens in car, CANNOT search glove compartment


Search & Seizure

What is government conduct?

4th Amendment Protections are for Government Conduct


Government-paid PD (on/off duty)
Private individual acting at PD direction
Unless deputized, private police are NOT engaged in government conduct.


Search & Seizure

When does a person NOT have a reasonable expectation of privacy?

NO reasonable expectation of privacy in things that a person holds out to the public everyday.

Sound of your voice
Style of handwriting
Paint on outside of car
Bank account records
Location of car on public road/driveway
Seen across open fields (not curtilage)
Flying over public airspace
Odors emanating from luggage
Garbage on the curb.


No Expectation: (1) passengers in car, where passenger doesn’t own car or property seized; (2) drug dealer on premises solely for business purpose of cutting up drugs


Search & Seizure

When does a person have standing to object to

the legality of a search?

A person has standing when they have a reasonable expectation of privacy.


ALWAYS have a reasonable expectation:

On premises you own.
Where you live
Where you are an overnight guest


Though PD are supposed to have arrest warrant to arrest a Δ in a 3rd party’s home, Δ has no standing to challenge, because the warrant is to protect the 3rd party’s privacy right.


If PD have PC to arrest, but no warrant, but arrest Δ in his home (viol)a later confession at the station house is OK (NOT fruit of unlawful arrest).


Search & Seizure

Flow Chart for Legality of Search/Seizure Under the 4th Amendment


Exclusionary Rule

What is the definition of the “fruit of the poisonous tree” doctrine?

Fruit of the Poisonous Tree


In addition to excluding evidence which is seized illegally, the doctrine ALSO excludes evidence that has been obtained or derived as a result of the initial search.



On the MBE, what does PD need to initiate an arrest?

A stop-and-frisk?

Arrest: is a seizure for purposes of the

4th Amendment, requiring PC


Warrant for Arrest:

Not needed for public arrests.
Is needed for non-emergency arrest of a person in their own home.


Only RS Needed for Stop-and-Frisk

Duration and Scope
Includes Property Seizure



Exclusionary Rule

What are 5 situations where exclusionary rule doesn’t apply to exclude evidence?

Limitations on the Exclusionary Rule


(5 situations where evidence is NOT excluded despite the fact that search or seizure was unconstitutional:)


Grand Juries
Any Civil Proceeding
Parole Revocation Proceedings
Good Faith Reliance (judicial opinion, warrant (but see NYS), statute, or ordinance)
Impeachment of Criminal Δ.

Otherwise voluntary confession


Exclusionary Rule

How can the chain between PD action and illegally seized evidence be broken to allow introduction of that evidence?


3 Ways to Break Chain Between Illegal PD Action and Derived Piece of Evidence


Independent Source of Evidence
Inevitable Discovery of Evidence
Δ’s Intervening Act of Free Will