MBE and NY Distinctions (Crim Pro) Flashcards

Question

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

Answer 1

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.

Answer 2

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

Answer 3

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.

Answer 4

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.

Answer 5

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.

Answer 6

Minimum of 6 Jurors Verdict Must be Unanimous. No Constitutionally Protected Right to a Unanimous 12 Person Jury 9 – 3 was OK

Answer 7

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

Answer 8

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.

Answer 9

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

Answer 10

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.

Answer 11

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.

Answer 12

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)

Answer 13

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).

Answer 14

Searching Cars No Suspicion: Request Consent Search RS: Terry stop PC: search any area that PC takes PD SITA: wingspan (not including trunk)

Answer 15

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

Answer 16

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.

Answer 17

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.

Answer 18

Bail issues are immediately appealable. Preventative detention is constitutional.

Answer 19

Two Prerequisites to Miranda Custody 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. Interrogation PD knew or should have known might solicit a damaging response. (Most Terry stops do NOT implicate Miranda.)

Answer 20

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.

Answer 21

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.

Answer 22

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.

Answer 23

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.

Answer 24

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.

Answer 25

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

Answer 26

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

Answer 27

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.)

Answer 28

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

Answer 29

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.

Answer 30

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

Answer 31

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.

Answer 32

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

Answer 33

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).

Answer 34

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.

Answer 35

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

Answer 36

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

Answer 37

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

MBE and NY Distinctions (Crim Pro) Flashcards

(63 cards)