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Flashcards in MBE - Criminal Procedure Deck (174)

What are the 4 global issues of search and seizure?

(1) Whether S&S is governed by 4th Am?
(2) Whether S&S conducted w/ satisfies 4th Am requirements?
(3) Whether S&S conducted w/o warrant satisfies 4th Am?
(4) To what extent evidence obtained through improper S&S is admissible in court?


To determine whether 4Am applies to S&S, we ask 4 questions:

(i) S&S executed by government agent?

(ii) S&S of an area or item protected by 4Am?

(iii) Did agent (a) physically intrudce or (b) violate reasonable expectation of privacy.

(iv) Does D have standing?


Who generally qualifies as an government agent capable of executing a search and seizure under the 4Am?

(i) Publicly paid police officers (on or off duty)
(ii) Private citizens, ONLY IF acting at direction of police
(iii) Private security guards, only if deputized with power to arrest
(iv) public school admins.


What items/areas are specifically protected from search and seizure under fourth amendment?

Persons, Houses, Papers, Effects


True or False: "Houses" under the fourth amendment protection from S&S includes hotel rooms.


The protection of houses also includes "Curtilage" = area of domestic use immediately surrounding the house.


What are the certain categories of items that are sufficiently "public" so that 4Am does not apply to them, even if search or seized by government?

"Patty Achieve A Glorious Victory Over Her Opponents."

Paint Scrapings
Account Records
Air Space
Open Fields


What do the common sufficiently "public" items that do not fall under 4Am protection, even if seized by govt, have in common?

(Patty Achieved A Glorious Victory Over Her Opponents)

Knowing exposure to third parties.


What are the two ways S&S by government agents can implicate an individuals 4Am rights?

(1) Agent physically intruded on a constitutionally protected area to obtain information OR

(2) Agent's search violates individual's reasonable expectation of privacy.


Government agent's installation of GPS tracking device on vehicle and use of that device to monitor vehicle movements constitutes ____?

PHYSICAL INTRUSION on a constitutionally protect area or item to obtain information -- triggers fourth amendment.


To meet the standard of REASONABLE EXPECTATION OF PRIVACY, individual must show?

(1) Actual or subjective expectation of privacy

(2) Privacy expectation was "one that society recognizes as reasonable"


True or false: A police search is presumptively reasonable under the 4th Am when its uses a device that is not in public use to explore details of the home that officers could not have known without physical intrusion?

False. Use of device not in public use is presumptively UNREASONABLE.


What is the key principle regarding an individuals "standing" to challenge the lawfulness of a S&S?

The individual's personal privacy rights must be invaded, not those of a 3P.


True or False: A person who (a) owns the premises searched, or (b) do not own, but reside in the premises ALWAYS have standing to challenge S&S?


This includes overnight guests as to areas overnight guest can be expected to access.


True or False: An overnight guest has standing to challenge a s&s conduct by gvt agents of closet in host's bedroom.


Overnight guests have standing to challenge searches of areas they can be expected to access -- including living room, dining room, bathroom.


True or False: Individual who is using someone else's residence merely for business purposes has a reasonable expectation of privacy to confer standing to challenge s&s.


Ex - apartment of acquaintance used only to bag cocaine; 3P doesnt have standing


Does a man who hides drugs in his girlfriends purse have a reasonable expectation of privacy to confer standing to challenge the search/seizure?

NO --> owner's of property seized only have standing if they have a reasonable expectation of privacy in the AREA from which the property was seized.


True or False: In NY passengers in cars can challenge the possession of weapons, is possession is attributed to them.



If problem provides that government agent has either (physically intruded) or (2) violated an individuals reasonable expectation of privacy -- what next?

Fourth Am applies to search and seizure.

Next determine whether search and seizure complies with requirements of 4th amendment.


What are the four key questions regarding whether a warrant satisfies the requirements of the 4th Am?

(1) Issued by neutral and detached magistrate?

(2) Warrant supported by probable cause and particularity?

(3) If not, can warrant be saved by "good faith?"

(4) Was the warrant properly executed?


By what standard does a judicial officer cease to be "neutral and detached?"

When her conduct demonstrates BIAS in favor of the prosecution.


What is required to meet probable cause?

Probable cause requires proof of "a fair probability" that contraband or evidence of crime will be found in area searched.


True or False: Hearsay is admissible to meet the burden of probable cause?



True or False: Police may not rely on information obtained through informant's tip.


Police MAY rely on informant's tip, even if the tip is anonymous.


What is required for an informant's tip to be considered sufficient to be used for the purpose of establishing probable cause?

CORROBORATION by the police of enough of tipster's information to allow the magistrate to make "common sense practical" determination that probable cause exists based on a TOTALITY OF THE CIRCUMSTANCES.


True or False: NY continues to use the stricter Aguillar-Spinelli test in evaluating probable cause.



What is the Aguillar-Spinelli test for evaluating probable cause?

When apply for search warrant (and to establish PC), government must establish:

(1) The informant's veracity or reliability, AND
(2) His basis and knowledge.


An examination of (1) an informant's veracity/reliabilty and (2) basis of knowledge is the ____ test?

Aguillar-Spinelli Test used to evaluate whether probable cause exists to issue a warrant.



Under the AS-Test (for probable cause) if an informant has not established his basis of knowledge, is there an alternative available?

YES -- PC may be established through police observation that confirms sufficient detail SUGGESTIVE of, or directly related to the criminal activity in question.


What is the distinction between the majority rule and NY rule regarding the establishment of probable cause?

MBE --> need enough information to allow magistrate to make "common sense practical" determination that PC exists.

NY --> requires information concerning informant's VERACITY and establish BASIS OF KNOWLEDGE.


What is required to satisfy the particular requirement for warrants?

For particularity, a search warrant must specify (a) the place to be searched and (b) the items to be seized


The police have probable cause to believe T murdered his wife E. The DA applies for a warrant to search for the murder weapon (believed to be serrated knife).

The warrant issued authorizes the police to search, "the entire apartment, including all closed containers, for evidence linked to E's murder."

Does this warrant satisfy particularity?


This is a "general warrant" that authorizes a fishing expedition in private areas that could not house the evidence for which there was PC to search (knife).


True or False: On the MBE, a warrant that is invalid due to absence of PC or particularity can still be saved if officer relied on it in good faith?


But not in NY, NY doesn't recognize good faith.


True or False: Under NY law, a warrant lacking probable cause or particularity can be saved under good faith.

FALSE - NY does not recognize good faith.


On MBE, what are 4 exceptions to the "good faith" save of a defective search warrant?


(1) Biased Magistrate
(2) Application EGREGIOUSLY lacked PC
(3) Reckless falsehoods in affidavit relied upon
(4) Facially deficient in particularity


If a warrant application includes a "bare bones" affidavit that states only that the police have "received information from a confidential informant," this is an example of what?

Exception to good faith doctrine to save defective warrants on the basis that application was so EGREGIOUSLY LACKING IN PROBABLE CAUSE that no reasonable officer would have relied on it.


If a warrant authorizes a search for "all serial numbers and identification numbers on all property" at an address where PC existed only as to the presence of a stolen vehicle OUTSIDE, this is an example of what?

Exception to good faith doctrine saving defective warrants on the basis that the warrant is so FACIALLY DEFICIENT IN PARTICULARITY that officers could not reasonable presume it to be valid.


What are the two key aspects of proper warrant execution?

(1) Officers complied with terms and limitations (stayed within scope) and

(2) Officers complied with "knock and announce" rule.


What is required under the "knock and announce" rule?

Police must "knock and announce" their presence AND their purpose before forcibly entering into the place to be searched


What are the exceptions to the "knock and announce" rule?

K&A not required if officer REASONABLY believes doing so would be:

(a) Futile
(b) Dangerous, or
(c) Inhibit the investigation.


What are the exceptions to the warrant requirement?


Exigent Circumstances
Search Incident to Lawful Arrest
Plain View
Special Needs
Terry "Stop and Frisk"


What are three types of exigent circumstances where warrantless search is permissible?

(1) Evanescent Evidence
(2) Hot Pursuit of Fleeing Felon
(3) "Emergency Aid" Exception


What is evanescent evidence?

Evidence that would dissipate or disappear in the time it would take to get a warrant - thus exception to warrant requirement.

Ex. Scraping under fingernails.


What is Hot Pursuit of Fleeing Felon exception to warrant requirement?

Provides that:

(1) Hot pursuit allows police to enter the home of a suspect or 3P to search for fleeing felon

(2) During hot pursuit, any evidence of a crime discovered in plain view while search for the suspect is admissible.


What is the "emergency aid" exception?

Falls under exigent circumstances, allowing warrantless search allowing...

Police may enter residence without warrant when there is an OBJECTIVELY REASONABLE basis for believing that a person inside is in need of emergency aid to address or prevent injury.


What is SITLA?

Search incident to lawful arrest = exception to warrant requirement for searches.


What are the requirements of s SITLA?

(1) Lawful arrest or custody
(2) Contemporaneous to arrest in time & place
(3) Scope of search must be contained to D's wing-span, including body, clothing, and any containers within arrestee's immediate control.


What is the scope of a SITLA?


Includes body, clothing, and any containers within arrestee's immediate control, REGARDLESS of offense for which arrest was made.


What are the justifications of SITLA?

(1) Officer safety, and
(2) Need to preserve evidence


What is the NY distinction regarding the scope of SITLA?

For LEO to search containers within wingspan, an officer must suspect that the arrestee is ARMED.


After making arrest for driving while intoxicated, an officer searches a cigarette pack in the arrestee's front shirt and seizes the crack he finds inside. Are the search and seizure lawful?

ON MBE --> Yes, contraband was found in container inside the arrestee's CLOTHING and thus within his immediate control.

ON NY --> NO, LEO had no reason to believe that arrestee was armed.


On the MBE, what is the rule regarding automobile searches incident to lawful arrest?

Permissible scope --> INTERIOR CABIN, including closed containers, but not the trunk.


True or False: Once an officer has "secured" an arrestee, the officer can search the vehicle ONLY IF she has reason to believe the vehicle may contain evidence related to the crime for which the arrest was made.



True or False: In NY, once occupant is out of the car, police can search containers inside the vehicle to look for weapons of evidence of crime?


Once occupant is out of car, police CANNOT search containers inside the vehicle.


Jill is arrested for driving with a suspended license. Officer Jack tells Jill, who is not handcuffed, to stand in front of the vehicle with her hands on the hood while he searches it. In Jill's purse on the floor of the car, jack finds marijuana and seizes it.

Are Jack's actions lawful?

ON MBE -- YES, because Jill is unsecured.

IN NY -- NO, because Jill is outside the care at the time of the search.


What is the standard regarding a consent to search?

Consent must be voluntary and intelligent. Police officers do not need to tell someone that she has the right to refuse consent.


If the D gives consent, what is the scope of consent?

All areas for which a reasonable person would believe permission to search was granted.


What is "apparent authority?"

Allows police officer to search based on consent given by someone who lacks "actual authority" provided the officer reasonably believed that the consenting party had actual authority.


If officers reasonably believed that a woman had "actual authority" to consent to their entry into her boyfriend's apartment since she referred to the apartment as "ours," had a key and claimed to keep personal belongings.

What result?

Apparent authority established based on LEO reasonable belief.

Woman had key and called apartment "ours."


What is the justification and standard for "automobile" exception to the warrant requirement?

Justification -- Autos are searchable without a warrant because vehicles are ready and individuals have a lesser expectation of privacy in vehicles.

Standard --> LEO must have probable cause to believe contraband or evidence will be found in vehicle.


Officer has PC to believe that a car is being used to transport a stolen 27" TV.

Can she search the entire car? What about a backpack in the trunk?

Entire car- yes

Backpack - no bc its too small to house a 27" tv


What are the requirements to seize an item in plain view (exception to the warrant requirement)?

(1) Lawful access to place from which item can be plainly seen
(2) Lawful access to item itself, and
(3) Criminality of item must be immediately apparent.


Where are inventory searches most common?

Search of arrestee - when they are booked into jail OR vehicle - when impounded.


What is the most common example of a" special needs" s&s that is an exception to the warrant requirement?

Random Drug Testing


What are the most common examples where SCOTUS has approved a warrantless, random drug test?

(1) Railroad employees, following an impact accident
(2) Customs agents responsible for drug interdiction, and
(3) Public school children who participate in any extra curricular activity


What is the standard required to justify a warrantless search of the person and effects of a public school student.?

Search must be reasonable at inception and not excessively intrusive in light of the age and sex of student AND nature of infraction.


True or False: Warrantless, suspicionless searches of parolees and his home are not permissible as a condition of parole.


They are permissible under the "special needs" exception to the warrant requirement.


Warrantless strip search of 13 year old female school student suspected of carrying prescription strength advil - permissible?

NO - held to be excessively intrusive in relation to the potential danger to other students.


True of False: Citizens and non-citizens have no 4th Am rights at the border.

True - with respect to ROUTINE searches of persons and effects.


What is a Terry Stop?

Brief detention or "seizure" for purposes of investigating suspicious conduct.


When is an individual "seized" for 4th Am purposes?

Based on totality of the circumstances, a reasonable person WOULD NOT feel free to leave OR to decline an officers request to answer questions.


What should be considered when evaluating whether an individual has been seized during questioning by law enforcement?

(i) LEO brandishes a weapon
(ii) LEO tone and demeanor
(iii) Whether individual was told she had the right to refuse consent.


On the MBE, when is the police pursuit considered a seizure?

Individual is seized ONLY if he submits to the officer's authority by stopping or if the officer physically restrains him.


In NY, when is the police pursuit considered a seizure?

Police pursuit is a seizure in and of itself.


When is a driver or passenger considered seized during a traffic stop?

Both driver and passengers are seized - EITHER can challenge the legality of stop.


True or False: in a traffic stop, the officer may in her discretion, order both driver and passengers out of the car.


Dog sniffs are also permissible provided sniff does not PROLONG the stop UNREASONABLY.


What is a Terry Frisk?

A pat-down of the body and outer clothing for WEAPONS that is justified by officer's belief that a suspect is ARMED AND DANGEROUS.


Can a LEO seize something she reasonably believes to be a weapon during Terry frisk?

Yes - it can always be seized.


Can a LEO seize something she recognizes as contraband during Terry frisk?

Yes - if she recognizes the item WITHOUT MANIPULATING THE OBJECT.


On the MBE, what is the application of the rule against manipulation during a Terry frisk?

Officer can seize item she believes to be contraband ONLY IF she recognizes it without manipulating the object.


In NY, can a LEO seize an item that she reasonably believes to be contraband discovered during a Terry frisk?

NO - officers can size an item only if it reasonably appears to be a weapon.


LEO pulls F over for speeding, he exits car and screams about how she is wasting his time and he has "messed with people" for less. Afraid that F may have a weapon, LEO frisks F. In his coat pocket, she detects what she immediately recognizes as a crack pipe. She seizes it.

Is the seizure justified?

On MBE, YES - since she did not physically manipulate the pipe before seizing.

NY - NO, since LEO did not believe it was a weapon.


What is the rule regarding "car frisks?"

When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the PASSENGER cabin of suspects vehicle, limited to those areas in which a weapon may be placed or hidden.


What is the rule regarding "protective sweeps?"

When making an in-home arrest, police may "sweep" the residence to look for CRIMINAL CONFEDERATES of the arrestee whose presence may threaten officer safety.


What evidentiary standard applies to Terry stop and frisks?

REASONABLE SUSPICION, which is less than probable cause.


How does the evidentiary standard of "reasonable suspicion" apply to Terry stops?

Requires specific and articulable facts that inform an officer's belief that criminal activity is present.



Hows does the evidentiary standard of "reasonable suspicion" apply to Terry Frisks?

Requires specific and articulable facts that suspect the suspect is ARMED AND DANGEROUS.'

Frisks are only permissible for officer safety and not a general search for criminal evidence.


What evidentiary standards apply in "protective sweeps?"

Officers may sweep the area immediately adjoining the place of arrest BASED ON THE RISK that the house harbors a person who poses a danger to those on the arrest scene.


What is the federal exclusionary rule?

Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.


True or false: there is a limit on the federal exclusionary rule that allows improperly obtained evidence to be used during cross-examination.

TRUE - Unconstitutionally obtained evidence is excluded from prosecutor's CASE IN CHIEF, but may be introduced to impeach D's testimony on cross examination.


Is evidence obtained after failure to properly knock and announced inadmissible under the federal exclusionary rule?

A failure to comply with the knock and announce rule does not require suppression of evidence that is subsequently discovered.


What is required to trigger the exclusionary rule?


Erroneous police conduct must be deliberate, reckless or grossly negligent.


Does the federal exclusionary rule apply to officers reasonable mistakes?

NO - it does not apply to evidence erroneously obtained when executing a search warrant, provided LEO mistake was REASONABLE.


What must the prosecution show to nullify "fruit of poisonous tree?"

Must show a break in the CAUSAL LINK between the original illegality and the criminal evidence that is later discovered.


What are the doctrines in which the prosecution can use to break the causal link of "fruit from the poisonous tree?"

(1) Independent source
(2) Inevitable Discovery
(3) Attentuation


What the doctrine of "independent course" in relation to fruit of the poisonous tree?

Method for prosecution to break causal link.

Evidence is allowed where there is a source for the discovery and seizure of the evidence that is DISTINCT from the original illegality.


What is "inevitable discovery?"

Method for prosecution to break the causal link of fruit from poisonous tree.

Doctrine applies where the evidence would NECESSARILY have been discovered through lawful means.


What is "attenuation?"

Method for prosecution to break causal link of FFPT.

Doctrine applies where the passage of time and intervening events "PURGE THE TAINE" of the original illegality and restore D's free will.


What are the major requirements for a valid wiretap warrant?


Suspected Person


When does an arrest occur?

Whenever police take someone into custody against her will for prosecution or interrogation.


What standard of proof applies to arrests?

Probable cause.


For what offenses does the 4Am permit a custodial arrest?

ALL OFFENSES, even those punishable by a monetary fine only.


True or False: LEO need an arrest warrant to arrest someone in a public place?

False - police don't need a warrant for arrest in public place.


When may LEO make a warrantless arrest for a felony?

When they have probable cause to believe the arrestee committed a felony.


What is required for LEO to arrest someone in the home of a 3P?

arrest warrant AND a search warrant.


What is the common enterprise theory?

In traffic stop, where police discovers evidence of crime that suggests a common unlawful enterprise between the driver and his passengers, the officer may arrest ANY OR ALL OF THEM based on reasonable interference of shared dominion of control.


What are the three federal constitutional challenges that can be brought to exclude a confession?

(1) 14th Am - Due process clause
(2) 6th Am - Right to Counsel
(3) 5th Am- Miranda


In NY, D's can challenge a confession under what source?

NY Constitution - NY INDELLABLE right to counsel.


What is the standard for excluding a confession under the due process clause (14th Am)?

INVOLUNTARINESS, meaning that the confession is the product of POLICE COERCION that overbears suspects will.


When does the 6th Am right to counsel attach to alleged D?

When D is formally charged and NOT upon arrest.

This is an express constitutional guarantee.


What is the scope of the 6th am right to counsel?

Applies to all "Critical states" of prosecution that take place after formal charging

Scope - right to counsel is Offense specific.


K is charged with burglary. At bail hearing, public defense is appointed to represent him and he is remanded to custody. Two weeks later, during questioning by ADA outside the presence of K's attorney, K makes incriminating statements about the burglary and an unrelated murder.

Did the ADA's conduct violate K's sixth am right to counsel?

Burglary charge -- YES, ADA deliberately illicited incriminating statements from K without first obtaining a valid waiver.

Murder charge -- NO, K had not been formally charged w. murder when ADA questioned him about it.


When do incriminating statements obtained from D by law enforcement about charged offense violate the 6th Am?

When the statements are deliberately illicited AND the defendant did not knowingly, intelligenty, and voluntarily waive his right to have his attorney present.


When incriminating statements are deliberately illicited and D does not knowingly or intelligently waive his right to counsel - what result?

The incriminating statements violate 6th Am.


True or false: NY indelible right to counsel provides the same protection as the 6th amendment of US constitution?

FALSE - NY indelible right to counsel provides GREATER protection.


When does the NY indelible right to counsel attach?

Not at formal charging (like fed 6th am) BUT WHEN THERE IS SIGNIFICANT JUDICIAL ACTIVITY.


If significant judicial activity has occurred, what is the D's right to counsel in NY?

If D taken into custody for questioning AND police are aware he is represented by counsel on that charge --> LEO MAY NOT QUESTION D ABOUT THAT CHARGE or ANY OTHER MATTER w/o his attorney present.


Police investigated G's involvement in armed robbery. During the investigation, G has consistently referred all police inquires to his attorney. After finding incriminating evidence in search of G's apartment, the police secure arrest warrant and take G to police station for questioning w/o notifying his attorney.

They question him about armed robbery and an unrelated murder. Does this violate G's right to counsel?

On MBE --> no to both charges bc he has not been FORMALLY CHARGE.

In NY for robbery --> YES

In NY for murder--> YES.

There has been significant judicial activity (search warrant; arrest warrant) AND the police are aware G had counsel. This violates NY Indelible right to counsel.


True or False: A valid waiver of NY indelible right to counsel can be made at any time.

FALSE - it must take place in the presence of the attorney.


Is the 5th am right to miranda warnings an express right?

NO - its an implid right grounded in the self-incrimination clause of the 5ht am.


What are the 4 core Miranda warnings?

(i) right to silence
(ii) anything can be used against you
(iii) right to attorney
(iv) Attorney can be appointed for you


When are miranda warnings necessary?

(1) Suspect in custody
(2) Suspect being interrogated


When is a suspect considered in police custody, thus triggering the requirement for miranda warnings?

Viewed objectively, when suspect is under police domination and coercion such that his freedom of action is limited in a significant way.


What is interrogation thus triggering miranda warnings?

Interrogation = any conduct the police knew or should have known was likely to elicit an incriminating response.


Does miranda apply to spontaneous incriminating statements?

NO - since they are not the product of interrogation.


LEO, posing as inmate, placedin jail cell with D, who is being detained pending trial on charge of aggravated battery. Officer befriends D and questions him about his involvement in an unrelated murder. In response, D incriminates himself.

Did the officer's conduct violate D's miranda rights?

NO - bc D thought he was talking to a friend, the "essential ingredients" of Miranda - an atmosphere of police domination and coercion - were absent.

Note - no 6th am violation bc interrogation concerned UNCHARGED criminal activity.


What is the public safety exception to the miranda doctrine?

If custodial interrogation is prompted by an immediate concern for public safety, Miranda warnings unnecessary and any incriminating statements are admissible against suspect.


What is required for a valid miranda waiver?

(a) "knowing and intelligent" --> met if suspect understands the NATURE of rights and the CONSEQUENCES of abandoning them.

(b) Voluntary --> met if waiver is not the product of police coercion.


What is NYs parent/child rule?

If the police use deception or concealment to keep a parent away from a child who is being interrogated, the child's waiver may be deemed invalid.


What is the burden of proof of proving a valid waiver of suspects miranda rights?

Preponderance of the evidence.


How must a suspect invoke the right to remain silent?

UNAMBIGUOUSLY.. Can't just stay silent.

Once invoked, police must "SCUPULOUSLY HONOR" the invocation.


How must a suspect invoke the right to counsel?

Sufficiently clear request for counsel.

Once request made, all interrogation must ease UNLESS initiated by suspect


What is the difference between 6th am right ot counsel and 5th am right to counsel under Miranda?

Fifth Am right to counsel IS NOT OFFENSE SPECIFIC.

Following a request for counsel under MIRANDA, interrogation is prohibited as to all topics, outside the presence of an attorney.


T or F: failure to give suspect Miranda warnings does require the suppression of "physical fruits" of incriminating statements, provided statements are voluntary.

(ex. gun found)

False. Does not require suppression.


T or F: incriminating statements obtained in violation of Miranda are inadmissible to prosecutions case in chief but may be used to impeach the testimony of 3P?

FALSE - statements may be used to impeach DEFENDANT's TESTIMONY but not that of 3P.


Line-ups, show-ups and photo arrays are examples of ___?

Pretrial identifications.


What is the rule regarding challenges to pretrial identifications based on the denial of the right to counsel?

5th am --> No right to counsel for PRETRIAL IDENTIFICATIONS, however...

6th Am --> a right to counsel exists under 6th am for line ups and show ups that take place after formal charging, but not for photo arrays.


T or F: There is a 6th am right to counsel for photo arrays.


6th am right to counsel regarding pretrial identifications exists for line ups and shows ups that take place after formal charging.


What is the NY distinction regarding pretrial identifications and right to counsel?

in NY, you have the right to attorney presence at a line up conducted BEFORE filing of formal charges if police are aware that you have counsel and you request counsel presence.


When does a pretrial identification procedure violate 14th am right to due process?

Unnecessarily suggestive.

Courts must weight reliability of suggestive ID against corrupting effects.


When a pretrial id is unnecessarily suggestive so that it creates a substantial likelihood of irreparable misidentification, what argument?

Argue this violated D due process under the 14th amendment.


What is the remedy for constitutional violations in pretrial ids?



How can the prosecution still admit evidence obtained from a constitutional violation in pretrial id?

Prove that ID is based on observations of suspect other than in unconstitutional show up, line up or photo array.

Showing made by:
(1) W opporutnity to view D at crime scene
(2) certainty of W
(3) specificity of description given to police.


What are grand juries?

Issue indictments, secret proceedings.


T or F: Prosecution must establish all elements of crime to grand jury for indictment?


Prosecution must establish ALL ELEMENTS


Provide reasonable cause to believe that the accused committed the offense.


What is the standard of proof for pretrial detention?

Probable cause


What is the required evidentiary disclosure at trial?

Prosecutor must disclose to criminal D ALL material exculpatory evidence.


Right to unbiased judge means?

(1) no financial stake, and
(2) no actual malice.


What is the fundamental aspect to D right to trial by jury?

All criminal Ds have right to fair and impartial jury.

Right to jury trial exists when max sentence = 6 months or more.

Requisite # of jurors = 6


What is the requisite number of jurors require in NY?

12, but D can waive and proceed to verdit with only 11.


True or False: In NY, jury verdicts in criminal trials must be unanimous if only 6 jurors are used; verdicts in 12 person juries need not be unanimous.

FALSE - this is the MBE rule.

In NY, jury verdicts must always be unanimous.


What is the cross sectional requirement?

Requires the pool from which jury is drawn represents a cross-section of the community.


What is a preemptory challenge?

Exclude jurors without stating their reasons for doing so, but cannot be used to exclude on account of race or gender.


Confrontation Clayse

6th guarantees D's right to confront adverse witnesses, however, this does not apply where face-to-face confrontation would contravene important public policy.


What is the test regarding right to effective assistance of counsel?

(1) Deficiency Requirement --> counsel performance fell below objective reasonableness standard (made errors so serious he was not functioning as counsel)


(2) Prejudice Requirement --> But For the deficiency, the outcome of trial would have been different.


What is required for a guilty plea to be valid?

Judge must establish that it is voluntary and intelligent.


What is a plea taking colloquy?

Before accepting plea, judge must conduct a colloquy in open court in which shee addresses on the record:

(a) the nature of charges, and
(b) the consequences of the plea.


When can a D withdraw a guilty plea after sentencing?

(1) involuntary plea (due to defect)
(2) Jurisdiction defect
(3) D prevails on a claim of ineffective assistance of counsel, or
(4) Prosecutor fails to full his side of bargain.


Prosecutor agrees to make no sentencing recommendation but, at the sentencing hearing, he tells the judge to impose the max penalty.

What remedy?

D can withdraw the plea and go back to square one.


What is required by the 8th amendment?

Ds are protected from cruel and unusual punishment - this means penalties that are grossly disproportionate to the seriousness of the offense committed are PROHIBITED.


What are the evidentiary requirements when a jury is considering the death penalty?

Jury must consider all potentially mitigating evidence.


When does double jeopardy attach?

(a) jury trial - when jury sworn
(b) bench trial - when 1st witness sworn
(c) guilty plea - when court accepts D plea unconditionally.


Does double jeopardy apply to civil proceedings?



What is the same offense requirement (Federal approach)?

Federal rule --> two offenses are not the same offense for purposes of double jeopardy if each contains an element that the other DOES NOT.


What is the same offense requirement (NY approach)?

In defining "same offense," NY uses "transaction test" which requires that a D be charged with all offenses arising from any single transaction UNLESS:

(1) substantially different elements
(2) prevents different harms
(3) one is for criminal possession, the other use
(4) harm to different victim


What is the "transaction test?"

NY approach to "same offense" requirement.

Requires that a D be charged with all offenses arising from any single transaction UNLESS

Different elements
Charges prevent different harms
Possession vs. use
Different victims.


Are two offenses the "same offense" if only one offense has an element not contained in the other?

Generally Yes.

Prosecution for the greater offense precludes the later prosecution of the lesser-included offense.

And vice versa.


What is the "same sovereign" requirement?

Double jeopardy bars retral for the same offense by the same sovereign ONLY.

Same sovereign = states AND municipalities within them. (not state and fed or two different states).


What are four exceptions to the double jeopardy rule that permit retrial?

(a) Hung Jury
(b) mistrial for "Manifest Necessity"
(c) Successful appeal
(d) Breach of plead agreement


Who can "take the fifth?"

Anyone can plead the fifth amendment privilege against compelled testimony.

Taken - in any proceeding in which an individual testifies under oath.


True or False: In NY, the privilege cannot be asserted in a grand jury proceeding.



If someone provides sworn testimony can they take the fifth in a subsequent proceeding when asked the same question?

NO - the privilege must be asserted at the first opportunity or it is forever waived.


What is the scope of the fifth amendment "testimonial privilege?"

(i) does not apply to the state's use of our bodies.

(ii) Also disallows negative prosecutorial comment on a defendant's
(a) decision to testify at his trial, or
(b) the invocation of his right to silence or counsel.


What are examples of ways to eliminate the 5th amendment privilege against self-incrimination?

(1) Grant of immunity
(2) Taking the stand
(3) Statute of LImitations


What is NY "transactional immunity?"

Broader than "use and derivative use" immunity since it shields witnesses from prosecution for any transaction they testified about in their immunized testimony.