Midterm Exam - Review Flashcards
1
Q
Explain the “Fruit of the Poisonous Tree” Doctrine:
A
Case law that resulted from USSCT decision on Mapp v. Ohio (1961) from “The Exclusionary Rule” from Weeks v US (1914) based on case law
- Results of illegal search are inadmissible (Exclusionary Rule)
- Derivative evidence also inadmissible
Evidence produced from search w/o a warrant or PC-
Example: We found drugs, and want to charge you/ - Come up with own example - for exam
2
Q
What is a “Faretta Waiver” ?
Explain the type of questions it might ask.
A
Faretta Waiver: Must be signed (and initialed) by the defendant and submitted to the judge for review, and plays a major role in determining if a defendant may be qualified or viable to represent him or herself at trial, before a judge or jury.
How many trials have you done? 0
Do you speak and read english well? Yes
Do you understand the terminology?
Do you know what the maximum sentence is?
Do you know we are not going to help you?
Do you understand the level of seriousness?
3
Q
Does California allow plea negotiations? What about in Capital Crimes? List any other exceptions, if applicable.
A
Yes, CA does allow the Prosecutor or DA to plea bargain in the interest to secure conviction(s) and save court resources (time/money).
CA does not allow Plea Bargaining in Capital Crimes (Homicides, and crimes involving a Handgun)
4
Q
In CA, who is authorized to reduce charges (plea bargaining) of a defendant?
A
DA, Judge, Prosecution Rule 17(b)
5
Q
What is a “Motion for Severance”?
A
Filed by either Defense or Prosecution (State)
Ex: Barker v. Wingo
(Defendant A is worse that Defendant B)
- Can be good for Defense or State, depending on the case
6
Q
What factors might limit/allow one to represent themselves at Trial?
A
- Education (Amount of)
- Experience Level (Have you ever been to trial before? Are you a lawyer?)
- Can you understand English?
- Do you know what the penalties are/could be? (Life, Death Penalty, 10yrs, etc)
- Emotions
- Faretta Waiver
- Judge may appoint/reserve assistance of council (for later use to avoid mistrial or in the event of an appeal)
7
Q
What famous American commented on the 1963 Gideon Case? What did he say?
A
Robert F. Kennedy
“writ of appeal with pencil and paper from jail (cell)” changed the american justice system.
8
Q
What is presumed about the defendant at trial?
A
Defendant is presumed innocent until proven guilty at trial (by a judge or jury).
9
Q
Describe the order of a criminal case.
A
Describe the order of a criminal case: Crime Investigation Arrest Police reports written up Report given to DA, with recommendations DA files Charges - a Complaint, signed by DA Complaint filed with Court Less than 72 hrs to Arraignment PH - Trial or Not Arraignment at Superior Court Another PH - Motions Filed Trial Guilty or Not Sentencing Hearing
10
Q
What are the requirements to admit a Defendant’s statement?
A
Suspect has right to be read Miranda Rights:
- Prior to being interrogated
- When being Arrested (Custodial Interrogation)
- Statements may not be made under duress
- Statement needs to be VOLUNTARY
- “intelligent” - low IQ (know the terms of what can result - imprisonment - Term, Etc)
11
Q
What is the main evidentiary difference between a Preliminary Hearing and a Grand Jury?
A
What is the main evidentiary difference between PH and GJ
Preliminary Hearing:
Criminal Cases - Felonies only - before the trial
“think king of england”
Prosecutor, Judge, Witnesses, Public, Defendant,
Not much Evidence
in CA Prop 115 - allows PO to testify about everything
Prosecutor has to prove 2 things at a PH
1. Crime has to be committed
2. PC has to be proven (Probable Cause)
Low threshold of guilt
Grand Jury -
No Defense, No Judge, No Public, No Defendant, bring in all Witnesses, and all the evidence (no dope - evidence is given to jurors - not typically done)
19 Grand Jurors in OC with Prosecution, and Court Reporter (transcribes everything for future use) - CR used at Trial, PH, and Sentencing
12
Q
What is a “true bill”?
A
What is a “true bill?”
Grand Jury Decision when they decide to indict someone (12 out of 19 Jurors)
Also called an INDICTMENT
13
Q
Who is present at a criminal grand jury hearing?
A
In CA:
- 19 Grand Jurors (in Orange County)
- Prosecution (DA)
- Court Reporter (Notes used later at Trial, PH, & Sentencing)
- Witnesses (Bring in all Witnesses)
- Evidence
14
Q
What is the Grand Jury?
A
In OC it is 19 Jurors
No Defense, No Defendant, No Judge, No Public
- to determine if an indictment (charges) is/are warranted (needed)
- Secret in Nature
15
Q
How many jurors serve on a Grand Jury in Orange County (OC)? What is their term of service?
A
19 Jurors
1 yr
16
Q
Explain the Exclusionary Rule.
A
The Exclusionary Rule:
- Weeks v. U.S. (1914)
- Search (by Police) must be constitutional or is null and void (sometimes inadmissible - Wolf v. Colorado (1949))
- Mapp v. Ohio (1961) extended the rule to state courts
- Deals with 4th (Due Process) and 14th Amendments (Applies Due Process - “ Fairness” to Everyone - after 13th Amendment Abolished Slavery)
17
Q
What is a Search Warrant?
A
A written order from the court allowing a search.
18
Q
What are some exceptions to the Exclusionary Rule?
A
Good Faith (Honest Mistake), Inevitable Discovery, Purged of Taint, Substantial Social Cost, or Independent Source
19
Q
What are some exceptions to the 4th amendment?
A
- Open Fields of View (Plain View Doctrine)
- Abandonment
- Consent
- Airport/Border Searches
- Parolees & Probationers
- School Searches
- Searches Incident Arrest
20
Q
What are the classification of laws? (and the number of jurors to reach a decision.)
A
Civil & Criminal
- Civil takes 9/12 Jurors
- Criminal takes 12/12 Jurors
21
Q
Marbury v. Madison provided what for our government system?
A
Checks & Balances
22
Q
What are the Criminal Justice System Components? (list their entities)
A
- Law Enforcement
City, County Police, Sheriff
State
Federal
- Judiciary
Judges
Attorneys
- Corrections
Probation
Parole
Dept of corrections
23
Q
What year was the Magna Charta Signed and what was it? What King was forced to sign it?
A
1215 - Signed by King John
“Peoples Rights” - charge reviewed by council of members of the community
24
Q
What 3 requirements need to be met for a court to issue a Search Warrant?
A
Requirement 1: Probable Cause
Requirement 2: Descriptions of Place(s), People to Searched & What item(s) to search for
Requirement 3: Officer submits to Prosecutor of review, and PROS submits affidavit to neutral magistrate (judge) for signing. If approved, it becomes a court ordered Search Warrant.
25
How many US Supreme Court Justices are there?
There are 9.
26
A Substantive Law deals with what types of cases?
Criminal - burglary (Redhanded or provable crimes against person or property) - Establishes and defines rights, duties, and obligations (describes without conduct constitutes a crime)
27
What are Procedural Laws?
Law that are derived from prior cases, or precedents in previous cases. "The rules of evidence"
28
Explain the basic timeline of criminal procedure?
Criminal procedure starts with the time a crime occurs (is committed), and ends with rehabilitation (punishment).
29
Identify the differences in "Burden of Proof" for Civil vs. Criminal Law.
Civil v. Criminal Law burdens of proof:
Criminal - Burden of Proof is on Prosecution (not Defendant)
Civil Court - Defense must prove innocent (money related) or not liable
30
What are the 3 Levels of Courts?
```
3 Levels of Courts:
- Trial Courts
Courts of 1st opinion
Trials
Juries
Vast majority
Most Publicized
CA Inferior & Superior
CA SC has 160 Judges
Federal: US District Court
```
- Appellate Courts
Happens after trial is over (nearly always).
No new testimony or evidence. Decision based on transcript and trial record.
Attorneys file briefs and argue
Majority of Justices determine the case
How many in CA? 7 Justices (3 at a time)
- Supreme Court
Highest Court in the nation
No new evidence - use transcripts, briefs, and arguments
Majority Decision (9 Justices)
Very selective on cases heard - takes it because of legal importance (potential issues)
31
What does the 4th Amendment protect?
- Protects: Persons, Houses (Castle), Papers, Effects
- Makes evidence seized not admissible (unauthorized searches)
- Protects us against unreasonable searches and seizures
32
What are the sources of Law?
Constitutions (US & State)
Statutes
Case Law (Judicial Decisions)
33
What are the 8th Amendment Rights?
No cruel and unusual punishment, no excessive bail
34
What is a law?
A law in its simplest form is merely a guideline for human behavior.
35
What is the purpose of criminal law?
To promote domestic peace by encouraging people to do what is right and discouraging them from doing what is wrong.
36
What is the "Code of Hammurabi"?
The Code of Hammurabi is considered one of the first known attempts to establish a written code of conduct. King Hammurabi ruled Babylon in approx. 2000 B.C. (55yrs)
The code established rules regarding the, sexual relationships, and interpersonal violence.
Th Code is also one of the first known laws to discuss the rights of victims.
Divided into 5 sections:
- A Penal or code of laws
- A manual of instruction for judges, PO, and witnesses
- Handbook of rights & duties of husbands, wives, and children
- set of regulations establishing wages and prices
- code of ethics for merchant, doctors, and officials.
Code was meant to replace blood feuds, and eliminate or reduce violence.
37
When are search warrants not needed?
- Automobile Searches
- Searches incident a lawful arrest
- Plain View (Doctrine)
- Consent (to Search)
- Abandonment
38
Describe the (search) warrant process?
1. Neutral and detached magistrate (judge)
2. Oath or affirmation
3. establish Probable Cause
4. Particular description of the place to be searched
5. Particular description of the items to be seized
6. The time and manner of execution.
39
Name the 2 parts of the 4th amendment:
Warrant Clause
| Probable Cause Clause
40
Is a general search warrant illegal?
Yes
41
What must a search warrant specifically describe?
The pace, the items, and/or people to be searched and/or seized.
42
What are the levels of a Police / Public Contact?
Consensual Encounter
Search (PC or Warrant)
Detention (Temporary - Ex Traffic Stop)
Arrest (Seizure)
43
What are Statue of Limitations in CA?
Statute of limitations
You have a limit to time to bring charges against suspect/defendant
1yr for Mis
3yr for Felonies
No limit for homicides (murder, manslaughter)
* Case must be started, not completed
44
What is a "Motion to Suppress Evidence"?
Motion to Suppress Evidence
- Typically filed by Defense
“Judge does let it in”
Typically done in a Pre-Trial Motion (PC 1538.5)
Objections may be delayed until evidence is offered during trial
Grounds for evidence suppression
MAPP v. OHIO
Exclusionary Rule
Confessions alleged to have been illegally obtained
45
Why would the Prosecution join 2 cases?
In the interest of "fairness" to the defendant, but mainly for "judicial economy"
46
What is a "Motion to Determine Competency"? Please describe.
Motion to Determine Competency
Defense Motion
Mental State of Defendant at trial (or hearing) time
(Relates to Not Guilty by Insanity - different)
Defense has the burden of producing some evidence as to lack of competency
47
Why would the Prosecution or Judge file a "Motion to Dismiss Charges"?
Motion to Dismiss Charges
Prosecutor may decide not to try the case
Witness may not remember
Ex: Defendant pays fines, child support
Judge can Dismiss
Problem with Charging Document;
48
Who files a "Motion to Set Aside" and When ?
Motion to Set Aside (the INFORMATION “charging document)
Almost always filed by the defendant - and rarely granted
* At a PH the judge needs to determine a CRIME OCCURRED and at a PC Level
Tests the competency of evidence at a PH or GJ Hearing
49
Which amendment requires a speedy trial? When does the clock start and when does the required timeline get satisfied?
6th Amendment
Clock starts upon arrest, and is fulfilled when trial starts (Preliminary Hearing following arraignment)
50
In CA, within how many days must a Preliminary Hearing take place?
10 Days
51
Who is present at a Preliminary Hearing? and What are their roles?
Judge - Determine if Case should be held over for Trial, Prosecutor - Convince Judge beyond a RD of possible conviction, Defense Lawyer (Team) - File Motions, Defendant - Be Present, Court Reporter - record everything for (possible) later reporting at trial
52
Summarize initiating a case in court:
- Crime is Committed
- Investigation occurs
- Arrest is made
- Police Report is Written
- Police Repot is Filed with DA
- DA files signed charges (complaint) with Court
- Less than 72 hrs to Arraignment
- PH - Trial or Not
- Arraignment at Superior Court
- Another PH - Motions Filed
- Trial
53
What is a PC 17(b) Motion?
reduce a wobbler charged as a felony to a misdemeanor, mainly to avoid a felony charge on defendants record
54
What is a Preliminary Hearing?
Preliminary Hearing:
- Takes place after the Arraignment (within 10 days)
Time for the hearing (court must dismiss the complaint if no PH) within:
10 days of arraignment (unless good cause or Defendant waives time - rights)
Uninterrupted/continuous hearing
- Burden of proof (probable cause):
1. crime occurred
2. defendant committed it
Bind over for trial (Held to answer), if magistrate is satisfied
- In front of the Magistrate (Judge), if righteous charge(s), the defendant is held over for trial
55
Describe the Arraignment Procedures:
Arraignment Procedures:
- Time for arraignment (w/in 2 court days (or 72 hours) of arrest or must release from custody)
- Advisement of rights
Right to an Attorney
(talk about those at arraignment)
- Advisement of charges and provide written complaint (or information, or indictment)
- Bail (methods of posting bail, considerations and factors in setting bail)
- Appointment of counsel
- Types of pleas (Demurrer)
- Setting of future dates (for what? - Trial, Jury Selection)
56
Do arraignment couts try cases?
No, they go to trial courts.
57
What could be a cause for change of venue (for a trial)?
- Defendant cannot get a fair trial
| Due to: Publicity, Nature or Extent of Crime (against Community),
58
Describe how search warrants are executed:
1. Knock on door, announce name and LE agency & intent (no specific time - could be 1 sec of 2 minutes)
2. Show warrant to person who answers door & provide copy (physical restraint can be used if necessary)
3. Search premises per warrant specifications. Note and log all property & leave receipt with owner or at warrant location if they are not present.
4. Return Warrant and seized property to the court that issued it immediately (with receipts and inventory, and any arrest made).
Present all evidence to the judge & secure the evidence to preserve for trial.
59
Summarize the issues involved in warrantless searches:
LE runs the risk of evidence not
| being admissible in court. Must have consent, Auto with PC, lawful arrest, plain view, abandonment.
60
Summarize the special issues involved in automobile searches:
“The 4th Amendment does not treat a motorist’s car as his castle”
If there is a warrant, must adhere to it
Valid consent to search, waives 4th
Vehicle Search incident to arrest, must be done at or near time & place of arrest
If PC exists, you my search everything, even locked containers, purses, etc.
At Lawful Traffic Stop, if evidence of danger or suspect may be armed, may pat down
If vehicle was used in a crime, does not apply if only transported to or from a crime
If any recent occupant of the vehicle is arrested, all may be search, except for the trunk
If vehicle is impounded
61
What is Fresh Pursuit?
Fresh pursuit refers to the Uniform Act of Fresh Pursuit - This act provide that a peace officer of one state may enter another state in fresh pursuit to arrest an offender who has committed a felony (& sometimes a misdemeanor) in the state from which he or she fled.
“They can chase them”
62
Who is eligible for Diplomatic Immunity?
Officials that are subject to diplomatic immunity provisions are: Diplomatic officers, their staff, members of their families, and their servants. Diplomatic officers that enjoy this unlimited immunity are: ambassadors, minister, their assistants, and attaches.
63
What is a Citation?
A Citation (sometimes referred to as a summons) is a written notice issued to a violator to appear in court. Mostly issued for traffic violations, but can be issued for misdemeanors based on the belief that the violator with appear in court as instructed on citation.
64
Explain the requirements of a valid arrest:
PC, officer witnessed a crime or had knowledge of he crime occurring through other senses (smelled marijuana, heard the gun shot)
65
Summarize the issues involving force in making an arrest:
You may only use whatever force is reasonably necessary to overcome the resistance of the accused, the officer may not use force that is disproportionate to the resistance met.
66
Describe the immunities from arrest:
Representatives for foreign countries (Diplomatic, Consular), legislators, and out-or-state witnesses.
67
Explain the protections granted an out-of-state witness:
Witness to a crime cannot be arrested, for outstanding warrants, when entering state to give testimony, or when leaving state after giving testimony. If however, they commit a crime while in the state to give testimony, they can be arrested and charged accordingly.
68
Explain the concept of territorial jurisdiction to make an arrest:
If you are out of your jurisdiction (area of operation or authorized city, state, county), you cannot make arrest. Any arrest made outside of that area would have to be made as a private person.
69
Illustrate the Miranda Requirements?
1. Was the statement voluntary?
2. Was the Miranda warning given?
3. Was there a waiver by the suspect?
4. Was the waiver intelligent and voluntary?
70
What are the legal requirements of a complaint:
Contains: Name of defendant, date and place that the offense took place, and nature of the offense.
71
Summarize the Bail Reform Act of 1984.
Bail Reform Act of 1984
- "Bail can be denied if defendant is too dangerous"
(Title 18 U.S. Code, Section 3242): This act provides that a federal officer may detain, pending trial, an arrestee who may be a danger to another person or a community. But before such an arrestee can be detained, a hearing must be held to determine “by clear and convincing evidence” that no condition exists that will assure the safety of a person or community if the arrestee are release on bail.
72
What does RICO mean?
Racketeer Influenced and Corrupt Organizations Act (1970)
Commonly referred to as the RICO Act or simply RICO, is a United States federal law that provides for extended criminal penalties and a civil cause of action for acts performed as part of an ongoing criminal organization.
73
Why is the initial appearance important?
An initial appearance is to inform the accused of charge(s), explain rights, arraignment, and set bail if applicable.
74
What is the purpose of Bail?
Bail is posted to obtain release from custody (an inherent right - Stack v. Boyle)
- The purpose of Bail is to secure the release form custody of one who's has been arrested upon his or her promise to appear at the various court proceedings related to the offense. (these may include: arraignment, then preliminary hearing, the trial, and other such proceedings that the court may direct)
- The right to post bail is found in the early history of England, and pre-dates Norman Conquest A.D. 1066, where the posting of a form of security to obtain the release of an accused was a common place practice on the continent of Europe, and it became part of the common law of England. It was developed as a humanitarian procedure.
75
How can Bail be posted?
Bail can be posted in the acceptable object value of Cash, U.S. or state bonds, or an equity in a real property. Real property must be twice that of the amount of bail, due to fluctuation of real estate values and difficulty of converting the real property into cash.
76
How much Bail must a defendant be required to post?
They have to post all of it, which can vary based on a variety of factors (flight risk, Family ties, employment record, age, state of residence, nature of crime, financial ability, criminal history), but can use a bail bondsperson for approximately 10% fee of bail amount
77
What does forfeiture of Bail signify?
The suspect or accused did not appear in court as required, and the bail is confiscated by the court and deposited in an official fund.
78
What is the significance of the phrase "released on one's own recognizance"?
OR allows defendant to be released without posting bail, reducing the financial issue for defendant, and allowing the prosecution or court another charge if the defendant does not show up (reason for warrant) or stiffer penalties (more fees and/or jail time).
79
What document does the Prosecutor have to determine whether or not to file charges (pre-trial)?
Police Report
80
What are some formal charging requirements for a prosecutor?
When a Police Officer files a report, they request that the DA charge the defendant with X, X, and X.
- The prosecutor has the choice to file the charges or none of them.
- They can charge with anything that the evidence can support a conviction with a jury trial - beyond a reasonable doubt - burden of proof.
- Otherwise its not ethical to file charges.
81
What are the Ethical duties of a prosecutor?
- Ethical duty to seek justice
| - to get a conviction if it is warranted
82
What are the prosecutors duties with respect to filing a criminal charge?
Being able to secure a conviction using the "Beyond a Reasonable Doubt" Level of Guilt
83
What would be Reasons for not filing a criminal case?
- Prosecutor has some issues with proving the the case
- These may include: Witness disappeared, died, or recanted testimony
- Officer died or is disgraced (credibility is no longer valid)
- Evidence is missing or distroyed
- Violations of Miranda Rights
-
84
Are you guilty if you sign a citation?
NO, it is a promise to appear in court.
85
What are the Booking Procedures?
- Entry into LE Records
- Fingerprinting (verification of ID)
- Photographs
- Telephone Calls (to avoid being held incommunicado)
86
What are grounds for an appeal?
- Judges Error
- Instructional Error
- Allowed Evidence (that shouldn't have been)
87
What does the 4th Amendment cover?
No unreasonable searches and seizures by the Government (of things or people)
88
Explain the exclusionary rule (as it relates to the 4th amendment).
Any evidence that this collected or seized (pursuant to the 4th amendment - protection from unreasonable searches and seizures) in an unlawful manner may not be admissible in court.
89
Why was a the Katz Case significant?
Created case law for "Zone of privacy" or reasonable expectation of it.
90
Can a prosecutor question a Grand Jury afterward?
Yes: "Did you like my statements?"
