Saturday before exam - full review cards Flashcards
(150 cards)
1
Q
What are Undercover Agents? (UCs)
A
A member of law enforcement disguising their identity or using an assumed identity to gain the trust of an individual or organization to gather information or evidence
2
Q
What is a confidential informant? (CIs)
A
A person who works undercover for law enforcement to gather information about felonious criminal activities.
3
Q
What are the challenges with using Confidential informants? Why are they viewed as unreliable?
A
–Criminals
–Motivated to lie
–operating with little accountability or control from their handlers
–frequently double dealing
–frequently being paid
–Subject to cross-examination and discovery **
**this is huge because if your case is predicated on this CI’s testimony and defense counsel can impeach them for bad character for truthfulness from multiple angles (Bias, prior convictions, prior nonconvicted acts) then a jury is less likely to trust their testimony
4
Q
Are confidential informants government actors for purposes of 4th amendment?
A
Yes. CIs are government actors so the 4th amendment applies to them.
5
Q
True or False:
The Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”
A
True.
6
Q
The Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.”
Does this rule change if it is recorded by the agent?
A
No. There is no difference with or without a recording.
The Fourth Amendment does not protect “a wrongdoer’s misplaced belief that a person to whom he voluntarily confides his wrongdoing will not reveal it.” (United States v. Hoffa)
No difference with or without recording – United States v. White
7
Q
Is there an expectation of privacy when making your admission of guilt in a foreign language?
A
No. There is no expectation of privacy in a multilingual society.
8
Q
Can a government actor (CI/UC) explore or search for anything?
A
No. They are government actors so their scope is limited to the scope of consent.
9
Q
True or False:
Recording your admission of guilt to someone
makes NO difference in whether you have an
expectation of privacy.
A
True
10
Q
Are undercover law enforcement officers still limited by the constitutional limitations on consent to search, even while
undercover?
A
Yes. Undercover law enforcement officers are still limited by the
constitutional limitations on consent to search, even while undercover.
11
Q
What type of defense is entrapment?
A
Entrapment is a complete defense to a criminal charge.
12
Q
Is entrapment a complete defense to a criminal charge?
A
Yes. Entrapment is a complete defense to a criminal charge.
13
Q
Does the constitution prohibit entrapment?
A
No. The constitution does not expressly prohibit entrapment.
14
Q
What is the underlying theory of entrapment?
A
“Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute”
A line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal
15
Q
The underlying theory of entrapment is:
“Government agents may not ________ a criminal design, _______ in an innocent person’s mind the ___________ to commit a criminal act, and then ______ commission of the crime so that the Government may prosecute”
A line must be drawn between the trap for the unwary ________ and the trap for the unwary ________.
A
“Government agents may not originate a criminal design, implant in an innocent person’s mind the disposition to commit a criminal act, and then induce commission of the crime so that the Government may prosecute”
A line must be drawn between the trap for the unwary innocent and the trap for the unwary criminal
16
Q
What are the basic rules for Subjective Entrapment?
A
–Where law enforcement pressures the defendant to commit the offense against their own will.
Evidence of defendants criminal record is admissible to prove predisposition to commit the offense.
17
Q
What is the 2 part test for Subjective entrapment?
A
- Did the government induce the crime?
- Was the defendant predisposed to commit the crime?
18
Q
The two part test for Subjective Entrapment is:
- Did the government induce the crime?
- Was the defendant predisposed to commit the crime?
Explain the standard and rules for the 1st part - inducement
A
Standard for inducement?
Inducement requires a showing of at least persuasion or mild coercion.
A simple offer to sell or to purchase drugs is a “mere offer” and does not constitute an “inducement”.
Examples of inducement:
appeals to friendship, compassion, promises of extraordinary economic or material gain or sexual favors, or assistance in carrying out the crime.
19
Q
What are examples of inducement for Subjective entrapment?
A
Examples of inducement:
appeals to friendship, compassion, promises of extraordinary economic or material gain or sexual favors, or assistance in carrying out the crime.
20
Q
The two part test for Subjective Entrapment is:
- Did the government induce the crime?
- Was the defendant predisposed to commit the crime?
Explain the standard and rules for the 2nd part - predisposition
A
Standard for showing predisposition:
Ask:
whether the defendant was an unwary innocent or, instead, an unwary criminal who readily availed himself of the opportunity to perpetrate the crime?
Predisposition is shown by:
–Evidence of other crimes (prior offenses)
–Knowledge of and experience with the criminal activity (e.g. language, tools, etc.)
21
Q
For subjective entrapment, how is predisposition shown?
A
Predisposition is shown by:
–Evidence of other crimes (prior offenses)
–Knowledge of and experience with the criminal activity (e.g. language, tools, etc.)
22
Q
For subjective entrapment, what is the effect of a finding of predisposition on the entrapment defense?
A
A finding of predisposition is fatal to an entrapment defense.
23
Q
True or false:
A finding of predisposition is fatal to an entrapment defense.
A
True.
24
Q
What is subjective entrapment most concerned with?
A
Subjective entrapment cares most about whether the defendant was predisposed to commit the crime.
25
For Subjective Entrapment, is evidence of a defendants criminal record admissible to prove predisposition?
Yes. Evidence of the defendants criminal record is admissible to prove predisposition to commit the offense.
26
For Objective Entrapment, is evidence of a defendants criminal record admissible to prove predisposition?
No. Evidence of the defendant’s criminal record is inadmissible to prove predisposition to
commit the offense.
27
What are the basic rules of Objective Entrapment?
--Law enforcement pressure would cause a "reasonable law-abiding person" to commit the offense.
--Evidence of the defendants criminal record is inadmissible to prove predisposition to commit the offense.
28
What is Objective Entrapment most concerned with?
How outrageous is the action
29
What is the standard for inducement in Objective Entrapment?
The requisite level of outrageousness could be reached only where government conduct is so fundamentally unfair as to be "shocking to the universal sense of justice.”
30
Provide the 3 main rules/principles of objective entrapment?
Law enforcement pressure would cause a “reasonable law-abiding person” to commit the offense.
Evidence of the defendant’s criminal record is inadmissible to prove predisposition to
commit the offense.
The requisite level of outrageousness could be reached only where government conduct is so fundamentally unfair as to be "shocking to the universal sense of justice.”
31
What are the examples of objective entrapment?
Intimidation and threats against Defendant’s family
Calling everyday and then threatening the Defendant
Engaging in forceful solicitation and dogged insistence until the Defendant capitulates.
Playing upon defendant’s
sympathy for informant’s
narcotic experiences and
withdrawal symptoms
Repeated suggestions that worked on Defendant when Defendant lost job and needed money
Telling Defendant that
they’re suicidal and need
money
32
What is the flowchart test for subjective entrapment?
* Step 1. Is there a Government Actor?
o If Yes: Go to Step 2.
o If No: Not Entrapment.
* Step 2. Did the Government Actor induce the crime?
o If Yes: Go to Step 3.
o If No: Not Entrapment.
* Step 3. Is the Defendant predisposed to commit the crime?
o If Yes: No Entrapment.
o If No: Entrapment.
33
What is the flowchart test for objective entrapment?
* Step 1. Is there a Government Actor?
o If Yes: Go to Step 2.
o If No: Not Entrapment.
* Step 2. Did the Government Actor induce the crime through conduct that is so outrageous and fundamentally unfair that it is “shocking to the universal sense of justice”?
o If Yes: Entrapment
o If No: Not Entrapment.
34
Can you admit polygraph results as evidence?
No.
35
What is the Frye test for Expert opinon?
Any science to be recognized by a court as legitimate forensic science
must be generally accepted by a relevant discipline.
36
The ____ test for Expert opinion is:
Any science to be recognized by a court as legitimate forensic science must be generally accepted by a relevant discipline.
FRYE test
37
What is the Frye test for Expert opinion and all the relevant rules?
Any science to be recognized by a court as legitimate forensic science
must be generally accepted by a relevant discipline.
---Must be “sufficiently established to have gained general acceptance in the particular field in which it belongs”
---Usually applied in a pretrial ruling.
---No real systemic test and no direct test of whether “general acceptance” is correct
38
What is the Daubert test for expert opinion?
“In emphasizing the importance of a trial judge’s ‘gatekeeping responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1) whether the expert’s technique or theory can be tested and assessed for reliability;
* 2) whether the technique or theory has been subject to peer review and publication;
* 3) the known or potential rate of error of the technique or theory;
* 4) the existence and maintenance of standards and controls; and
* 5) whether the technique or theory has been generally accepted in
the scientific community.
39
Fill in the missing factors for the Daubert test for expert opinion:
“In emphasizing the importance of a trial judge’s ‘gatekeeping
responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1) whether the expert’s technique or theory can be tested and assessed for reliability;
* 2)
* 3) the known or potential rate of error of the technique or theory;
* 4) the existence and maintenance of standards and controls; and
* 5)
“In emphasizing the importance of a trial judge’s ‘gatekeeping
responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1) whether the expert’s technique or theory can be tested and assessed for reliability;
* 2) whether the technique or theory has been subject to peer review
and publication;
* 3) the known or potential rate of error of the technique or theory;
* 4) the existence and maintenance of standards and controls; and
* 5) whether the technique or theory has been generally accepted in
the scientific community.
40
Fill in the missing Daubert Factors for expert opinion:
“In emphasizing the importance of a trial judge’s ‘gatekeeping
responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1)
* 2) whether the technique or theory has been subject to peer review and publication;
* 3)
* 4)
* 5) whether the technique or theory has been generally accepted in the scientific community.
“In emphasizing the importance of a trial judge’s ‘gatekeeping
responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1) whether the expert’s technique or theory can be tested and assessed for reliability;
* 2) whether the technique or theory has been subject to peer review and publication;
* 3) the known or potential rate of error of the technique or theory;
* 4) the existence and maintenance of standards and controls; and
* 5) whether the technique or theory has been generally accepted in the scientific community.
41
Fill in the missing Daubert Factors for expert opinion:
“In emphasizing the importance of a trial judge’s ‘gatekeeping
responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1) whether the expert’s technique or theory can be tested and assessed for reliability;
* 2)
* 3) the known or potential rate of error of the technique or theory;
* 4)
* 5) whether the technique or theory has been generally accepted in the scientific community.
“In emphasizing the importance of a trial judge’s ‘gatekeeping
responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1) whether the expert’s technique or theory can be tested and assessed for reliability;
* 2) whether the technique or theory has been subject to peer review and publication;
* 3) the known or potential rate of error of the technique or theory;
* 4) the existence and maintenance of standards and controls; and
* 5) whether the technique or theory has been generally accepted in the scientific community.
42
Fill in the missing Daubert Factors for expert opinion:
“In emphasizing the importance of a trial judge’s ‘gatekeeping
responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1)
* 2) whether the technique or theory has been subject to peer review and publication;
* 3)
* 4) the existence and maintenance of standards and controls; and
* 5)
“In emphasizing the importance of a trial judge’s ‘gatekeeping
responsibility’ when admitting expert testimony, the Supreme Court considers:
* 1) whether the expert’s technique or theory can be tested and assessed for reliability;
* 2) whether the technique or theory has been subject to peer review and publication;
* 3) the known or potential rate of error of the technique or theory;
* 4) the existence and maintenance of standards and controls; and
* 5) whether the technique or theory has been generally accepted in the scientific community.
43
What is FRE 702 rule for expert testimony?
If scientific, technical, or other specialized knowledge assists the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
FRE 702
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) the testimony is based on sufficient facts or data.
(c) the testimony is the product of reliable principles and methods, and
(d) the expert has reliably applied the principles and methods to the facts of the case.
44
Does FRE 702 seek to include or exclude the Frye test?
FRE 702 avoids including the FRYE test
45
Fill in the missing factors for FRE 702:
If scientific, technical, or other specialized knowledge assists the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
FRE 702
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b)
(c) the testimony is the product of reliable principles and methods, and
(d)
If scientific, technical, or other specialized knowledge assists the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
FRE 702
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) the testimony is based on sufficient facts or data.
(c) the testimony is the product of reliable principles and methods, and
(d) the expert has reliably applied the principles and methods to the facts of the case.
46
Fill in the missing factors for FRE 702:
If scientific, technical, or other specialized knowledge assists the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
FRE 702
(a)
(b) the testimony is based on sufficient facts or data.
(c)
(d) the expert has reliably applied the principles and methods to the facts of the case.
Fill in the missing factors for FRE 702:
If scientific, technical, or other specialized knowledge assists the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
FRE 702
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) the testimony is based on sufficient facts or data.
(c) the testimony is the product of reliable principles and methods, and
(d) the expert has reliably applied the principles and methods to the facts of the case.
47
What are the Factors under FRE 702?
Fill in the missing factors for FRE 702:
If scientific, technical, or other specialized knowledge assists the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
FRE 702
(a)
(b)
(c)
(d)
Fill in the missing factors for FRE 702:
If scientific, technical, or other specialized knowledge assists the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.
FRE 702
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue.
(b) the testimony is based on sufficient facts or data.
(c) the testimony is the product of reliable principles and methods, and
(d) the expert has reliably applied the principles and methods to the facts of the case.
48
What are the 3 types of Eyewitness identification?
Lineup - Suspect is put in a group of similar looking people and picked out
by the witness.
Showup - One individual being presented to the witness.
Sixpack (photo array) - Suspect is one of six photographs and is picked out by the witness
49
When do identifications violate the Due Process Clause?
When they are unreasonably suggestive and conducive to irreparable mistaken identification.
50
True or False:
All identification procedures must satisfy the Fifth and Fourteenth Amendment’s Due Process Clauses
True.
51
All identification procedures must satisfy the Fifth and Fourteenth Amendment’s Due Process Clauses. Identifications violate the Due Process Clause when they are unnecessarily suggestive and “conducive to irreparable mistaken identification.”
How is this evaluated?
Whether this has been violated or not is based on the totality of the circumstances barring unnecessarily suggestive identification procedures. Due Process does not require a trial court to “screen such evidence for
reliability” before allowing a jury to assess its reliability.
52
True or False:
A suggestive identification procedure does not violate due process if the police are not involved in creating the suggestive circumstances.
True
53
Does a suggestive identification procedure violate due process if the police are not involved in creating the suggestive circumstances?
No. A suggestive identification procedure does not violate due process if the police are not involved in creating the suggestive circumstances.
54
True or False:
The Supreme Court held that the due process clause does not require a preliminary judicial inquiry into the reliability of an eyewitness' identification unless the identification was procured under unnecessarily suggestive circumstances, arranged by law enforcement.
True
55
Does the due process clause require a preliminary judicial inquiry into the reliability of an eyewitness' identification?
No. The Supreme Court held that the due process clause does not require a preliminary judicial inquiry into the reliability of an eyewitness' identification unless the identification was procured under unnecessarily suggestive circumstances, arranged by law enforcement.
56
What is a suggestive identification?
Identifications violate the Due Process clause when they are unreasonably
suggestive and ‘conducive to irreparable mistaken identification’.
57
What are the factors to consider when determining reliability of witness identification?
1.
2.
3.
4.
5.
(1) the opportunity of the witness to view the defendant
(2) the witness’ degree of attention
(3) the accuracy of the witness’ prior description of the criminal
(4) the witness’ level of certainty with his identification
(5) the time between the crime and the identification
58
Fill in the missing factors to consider when determining reliability of witness identification?
(1) the opportunity of the witness to view the defendant
(2)
(3) the accuracy of the witness’ prior description of the criminal
(4)
(5) the time between the crime and the identification
(1) the opportunity of the witness to view the defendant
(2) the witness’ degree of attention
(3) the accuracy of the witness’ prior description of the criminal
(4) the witness’ level of certainty with his identification
(5) the time between the crime and the identification
59
Fill in the missing factors to consider when determining reliability of witness identification?
(1)
(2) the witness’ degree of attention
(3)
(4) the witness’ level of certainty with his identification
(5)
(1) the opportunity of the witness to view the defendant
(2) the witness’ degree of attention
(3) the accuracy of the witness’ prior description of the criminal
(4) the witness’ level of certainty with his identification
(5) the time between the crime and the identification
60
When does the 6th amendment right to counsel in identification attach?
Sixth Amendment Right to Counsel in Identification only attaches after
arrest.
* “The initiation of any adversarial criminal proceedings is not a
critical stage of prosecution at which the accused is entitled to
counsel.” Kirby v. Illinois.
61
Is the initiation of an adversarial criminal proceeding a critical stage of prosecution at which the accused is entitled to
counsel?
No. “The initiation of any adversarial criminal proceedings is not a
critical stage of prosecution at which the accused is entitled to
counsel.” Kirby v. Illinois.
62
Is a post-charge lineup or show-up a critical stage of prosecution at which the accused is entitled to
counsel?
Yes. A post-charge lineup or show-up is a critical stage because individuals
who are unrepresented are at risk of being falsely identified.
Failure to permit a defendant to have access to a lawyer or to waive their right to a lawyer results in the results of the
identification being excluded from the trial.
63
What happens if a person is not permitted to have access to a lawyer or to waive their right to a lawyer at a post-charge lineup or showup?
Failure to permit a defendant to have access to a lawyer or to
waive their right to a lawyer results in the results of the
identification being excluded from the trial.
A post-charge lineup or show-up is a critical stage because individuals
who are unrepresented are at risk of being falsely identified.
64
Does the 6th amendment right to counsel attach to photo arrays?
No.
65
True or False:
The Sixth Amendment Right to Counsel attaches to photo arrays
(six packs).
False. The Sixth Amendment Right to Counsel does not attach to photo arrays
(six packs).
66
True or False:
A show up identification after arrest but before “the initiation of any adversary criminal proceedings is not a critical stage of criminal prosecution at which the accused is entitled to counsel
True
67
Is a Show Up after arrest but before “the initiation of any adversary criminal proceedings a critical stage of criminal prosecution at which the accused is entitled to counsel?
No. A Show up after arrest but before “the initiation of any adversary criminal proceedings is not a critical stage of criminal prosecution at which the accused is entitled to counsel
68
True or False:
Witnesses can still conduct an in-court identification (even after a previous identification has been excluded) if the prosecution can establish by clear and convincing evidence that the in-court identification is not the product of the tainted identification procedure.
True
69
May a witness still conduct an in-court identification after a previous identification has been excluded?
Yes. Witnesses can still conduct an in-court identification (even after a previous identification has been excluded) if the prosecution can establish by clear and convincing evidence that the in-court identification is not the product of the tainted identification procedure.
70
What must the prosecution establish if they wish to have a witness conduct an in-court identification after a previous identification has been excluded?
Witnesses can still conduct an in-court identification (even after a previous identification has been excluded) if the prosecution can establish by clear and convincing evidence that the in-court identification is not the product of the tainted identification procedure.
71
What is the definition of "custodial interrogation" under Miranda?
The Miranda decision defines custodial interrogation as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his [or her] freedom of action in any significant way.” The test is whether a reasonably prudent person would believe that their freedom of movement is significantly restrained, given the totality of the
circumstances.
72
What is the test for determining custody and the relevant factors to consider (miranda)?
Objective test of whether a reasonable person would
feel free to leave:
* The number of police officers
* Whether the officer tells the individual that he or she is free to leave or not free to leave
* The length and intensity of the questioning
* Whether the officer employs physical force
to restrain the individual
* Whether the stop is in public or in private
* The location of the interrogation
* Whether a reasonable person would believe
that the stop would be brief or whether the
stop would result in a custodial arrest
* Whether the individual is in familiar or unfamiliar surroundings
* Whether the suspect is permitted to leave
following the interrogation
73
What is the Miranda rule?
Prior to any questioning, the suspect must be warned that he has a right to remain silent, that any statement the suspect does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed, and that the defendant may waive effectuation of these rights.
74
Interrogation involves either:
1.
2.
1. Express Questioning; or
2. The functional equivalent of express questioning
75
What is express questioning?
Questions directed to the suspect by police.
76
What is the functional equivalent of express questioning?
Words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the suspect.
77
What must the police do if the detainee invokes either the right to remain silent or the right to counsel?
Generally, the police must immediately stop probing if the detainee invokes either the right to remain silent or the right to counsel. If the suspect invokes the latter, questioning must cease until counsel is available.
78
What must the police do if the suspect invokes the right to counsel?
the police must immediately stop probing if the detainee invokes the right to counsel. Questioning must cease until counsel is available
79
What happens if the detainee invokes the right to remain silent but does not invoke the right to counsel?
if the detainee invokes only the right to remain silent, the police may reinitiate questioning at a later time, provided they honor the right to remain silent.
80
if the detainee invokes only the right to remain silent, may the police reinitiate questioning at a later time?
Yes. if the detainee invokes only the right to remain silent, the police
may reinitiate questioning at a later time, provided they honor the right
to remain silent.
81
What is required of a person who wants to invoke his or her right to silence?
An accused who wants to invoke his or her right to silence is required “to do so unambiguously.
82
What is an express waiver of miranda?
An express waiver is when the individual states that
they are willing to make a statement and does not want an attorney.
83
What is an implied waiver of miranda?
An implied waiver can be clearly inferred from the actions and words of the person interrogated.
Basically, just talking to the police
84
What are the requirements for demonstrating that a suspect waived miranda?
The Government is required to meet a “heavy burden” in demonstrating that a suspect voluntarily, knowingly, and intelligently waived his or her rights.
85
The requirements for waiver of miranda are:
The Government is required to meet a “heavy burden” in demonstrating that a suspect voluntarily, knowingly, and intelligently waived his or her rights.
Explain each:
Voluntary -
Knowing and Intelligent -
The requirements for waiver are:
The Government is required to meet a “heavy burden” in demonstrating that a suspect voluntarily, knowingly, and intelligently waived his or her rights.
Explain each:
Voluntary - Any evidence that an accused person was threatened, tricked, or cajoled into waiver is
sufficient to demonstrate that a suspect did not
voluntarily waive his or her rights.
Knowing and Intelligent- Uses Totality of the Circumstances. Case-by-case basis by the totality of the circumstances looking at age, experience, education, background, medical or mental condition, and
intelligence.
86
Can a suspect revoke their waiver of miranda rights?
Yes. Suspects aren't locked into any initial waivers, whether made expressly or implicitly -- they have the right to invoke their Miranda rights at a later time.
Sometimes a suspect will restart the conversation with the police voluntarily after invoking their right to remain silent.
The police will be able to continue with the interrogation, as long as they give the suspect a new set of Miranda warnings first.
87
What happens if a suspect restarts the conversation with the police voluntarily after invoking their right to remain silent?
The police will be able to continue with the interrogation, as long as they give the suspect a new set of Miranda warnings first.
88
What are the Miranda exceptions?
1. The public safety exception allows questioning of a suspect after arrest but before reading the Miranda rights if there is an immediate and significant danger to the public. New York v. Quarles, 467 U.S. 649, 655-56 (1984).
2. The privilege can only be asserted by natural persons (not corporations)
3. The privilege applies only to self-incriminating statements (not physical evidence)
4. The privilege does not apply if questioning is done by private citizen or by a nonidentified state-agent
89
Fill in the missing Miranda Exceptions:
1. The public safety exception allows questioning of a suspect after arrest but before reading the Miranda rights if there is an immediate and significant danger to the public. New York v. Quarles, 467 U.S. 649, 655-56 (1984).
2.
3. The privilege applies only to self-incriminating statements (not physical evidence)
4.
1. The public safety exception allows questioning of a suspect after arrest but before reading the Miranda rights if there is an immediate and significant danger to the public. New York v. Quarles, 467 U.S. 649, 655-56 (1984).
2. The privilege can only be asserted by natural persons (not corporations)
3. The privilege applies only to self-incriminating statements (not physical evidence)
4. The privilege does not apply if questioning is done by private citizen or by a nonidentified state-agent
90
Fill in the missing Miranda Exceptions:
1.
2. The privilege can only be asserted by natural persons (not corporations)
3.
4. The privilege does not apply if questioning is done by private citizen or by a nonidentified state-agent
1. The public safety exception allows questioning of a suspect after arrest but before reading the Miranda rights if there is an immediate and significant danger to the public. New York v. Quarles, 467 U.S. 649, 655-56 (1984).
2. The privilege can only be asserted by natural persons (not corporations)
3. The privilege applies only to self-incriminating statements (not physical evidence)
4. The privilege does not apply if questioning is done by private citizen or by a nonidentified state-agent
91
What are the due process clause requirements for a voluntary confession to be admissible evidence?
DPC: To be admissible in evidence, a confession must have been made freely and voluntarily without compulsion or inducement.
A confession violates due process and is excluded from evidence that involves the following:
1) Coercion. The police or government officials subject the defendant to physical or psychological coercion.
2) Will to resist. The coercion overcomes the will of an individual to resist.
92
DPC: To be admissible in evidence, a confession must have been made freely and voluntarily without compulsion or inducement.
A confession violates due process and is excluded from evidence that involves the following:
1)
2)
DPC: To be admissible in evidence, a confession must have been made freely and voluntarily without compulsion or inducement.
A confession violates due process and is excluded from evidence that involves the following:
1) Coercion. The police or government officials subject the defendant to physical or psychological coercion.
2) Will to resist. The coercion overcomes the will of an individual to resist.
93
What are the factors/examples of Voluntariness for confessions?
1.
2.
3.
4.
5.
6.
1. Psychological abuse. The police employed a childhood friend to play on the defendant’s sympathy.
2. Interrogation. The defendant was questioned for eight hours at night by fourteen officers, and his confession was written down by a skilled and aggressive prosecutor.
3. Attorney. The police disregarded the defendant’s refusal to speak on the advice of counsel and ignored his request to contact his lawyer.
4. Defendant. The defendant was twenty-five years of age and never before had been subjected to custodial arrest or to police interrogation. He had not completed high school and had a psychological disability.
5. Procedural regularity. The police failed to immediately bring the defendant before a judge and instead subjected him to interrogation.
6. Necessity. The police already possessed eyewitnesses to the shooting and were engaged in securing the evidence required to convict the defendant rather than in identifying the individual responsible for the crime
94
Fill in the missing factors/examples of Voluntariness for confessions:
1. Psychological abuse. The police employed a childhood friend to play on the defendant’s sympathy.
2.
3. Attorney. The police disregarded the defendant’s refusal to speak on the advice of counsel and ignored his request to contact his lawyer.
4.
5. Procedural regularity. The police failed to immediately bring the defendant before a judge and instead subjected him to interrogation.
6.
1. Psychological abuse. The police employed a childhood friend to play on the defendant’s sympathy.
2. Interrogation. The defendant was questioned for eight hours at night by fourteen officers, and his confession was written down by a skilled and aggressive prosecutor.
3. Attorney. The police disregarded the defendant’s refusal to speak on the advice of counsel and ignored his request to contact his lawyer.
4. Defendant. The defendant was twenty-five years of age and never before had been subjected to custodial arrest or to police interrogation. He had not completed high school and had a psychological disability.
5. Procedural regularity. The police failed to immediately bring the defendant before a judge and instead subjected him to interrogation.
6. Necessity. The police already possessed eyewitnesses to the shooting and were engaged in securing the evidence required to convict the defendant rather than in identifying the individual responsible for the crime
95
Fill in the missing factors/examples of Voluntariness for confessions:
1.
2. Interrogation. The defendant was questioned for eight hours at night by fourteen officers, and his confession was written down by a skilled and aggressive prosecutor.
3.
4. Defendant. The defendant was twenty-five years of age and never before had been subjected to custodial arrest or to police interrogation. He had not completed high school and had a psychological disability.
5.
6. Necessity. The police already possessed eyewitnesses to the shooting and were engaged in securing the evidence required to convict the defendant rather than in identifying the individual responsible for the crime
1. Psychological abuse. The police employed a childhood friend to play on the defendant’s sympathy.
2. Interrogation. The defendant was questioned for eight hours at night by fourteen officers, and his confession was written down by a skilled and aggressive prosecutor.
3. Attorney. The police disregarded the defendant’s refusal to speak on the advice of counsel and ignored his request to contact his lawyer.
4. Defendant. The defendant was twenty-five years of age and never before had been subjected to custodial arrest or to police interrogation. He had not completed high school and had a psychological disability.
5. Procedural regularity. The police failed to immediately bring the defendant before a judge and instead subjected him to interrogation.
6. Necessity. The police already possessed eyewitnesses to the shooting and were engaged in securing the evidence required to convict the defendant rather than in identifying the individual responsible for the crime
96
What is the public safety exception to miranda?
The public safety exception allows questioning of a suspect after arrest
but before reading the Miranda rights if there is an immediate and
significant danger to the public.
97
True or false:
The miranda privilege applies only to self-incriminating statements does not apply to physical evidence
True
98
True or False:
The Miranda privilege does not apply if questioning is done by a private citizen
or by a non-identified state agent.
True
99
The exclusionary rule provides that:
The exclusionary rule provides that: evidence that is improperly obtained is inadmissible in a criminal prosecution to establish a defendant’s guilt
100
What does the exclusionary rule prohibit?
The Exclusionary Rule prohibits unlawfully obtained evidence
from being used in a trial.
101
Does the exclusionary rule apply to state courts?
Yes. Mapp v. Ohio extended the exclusionary rule to apply to state courts
102
What is direct evidence?
Direct Evidence is evidence that is prohibited from use via the Exclusionary Rule because the evidence was directly obtained as a result of a constitutional violation.
103
Is the exclusionary rule part of a citizens 4th amendment right?
Mapp v. Ohio – extended the Weeks exclusionary rule to state courts holding that the exclusionary rule is part of a citizen's Fourth Amendment right and that the rule was needed because the states had not devised any effective remedies to the problem of arbitrary searches by police
104
What happens when the police exceed their constitutional authority in searching?
when the police exceed their constitutional authority in searching, then that search must be null and void.
105
What is Derivative evidence/fruit of the poisonous tree
Derivative Evidence (AKA Fruit of the Poisonous Tree) is evidence that is
prohibited from use via the Exclusionary Rule because the evidence was
obtained as a result of direct evidence that was unlawfully obtained
106
What is this in reference to?
[T]hat the protection of the Constitution covers the physical possession but not any advantages that the Government can gain over the object of it’s pursuit by doing the forbidden act … The essence of a provision forbidding the acquisition of evidence in a certain way is that not merely evidence so acquired shall not be used before the Court but that it shall not be used at all
Derivative evidence or fruit of the poisonous tree.
107
True or False:
Although evidence obtained through illegal police conduct must be excluded at trial as it is “fruit of the poisonous tree,” the connection between the illegal police conduct and a relevant piece of evidence can become so attenuated as to dissipate the taint, and such evidence may then be admissible.
True
108
What are the exceptions to the exclusionary rule?
1. Good faith (see also exception to the good faith exception)
2. Independent source
3. Inevitable discovery
4. Attenuation
Other specific exceptions:
5. Private search doctrine
6. Miranda
7. Knock and Announce
8. Standing
109
Explain the Good Faith exception to the exclusionary rule and the exception to the good faith exception.
Good Faith Exception:
If an officer has an objective good faith basis to believe that the warrant
they are executing is valid, then evidence discovered as a result of the
warrant is admissible (even if the warrant should not have been signed).
Exception to the Good Faith Exception:
If the warrant was based on facts that the affiant knew or should have known were false when providing the affidavit, an exception to the Good Faith Exception exists
110
The good-faith exception to the exclusionary rule applies when officers conduct a search or seizure with “objectively reasonable reliance” on, for example, a warrant that is not invalid but that a judicial magistrate should not have signed
what if the judge is misled?
When the judge in issuing a warrant was misled by information in an affidavit that the affiant knew was false or would have known was false except for his reckless disregard for the truth,” then suppression would be out of line
111
The good-faith exception to the exclusionary rule applies when officers conduct a search or seizure with “objectively reasonable reliance” on, for example, a warrant that is not invalid but that a judicial magistrate should not have signed
What if they didn’t think they needed a warrant? Or they acted consistent with an exception?
There is no applicable exception, and the exclusionary rule must be applied
112
When does the good-faith exception to the exclusionary rule apply?
The good-faith exception applies when officers conduct a search or seizure with “objectively reasonable reliance” on, for example, a warrant that is not invalid but that a judicial magistrate should not have signed
113
What is the independent source exception to the exclusionary rule? what is the expanded independent source doctrine?
If the tainted evidence is discovered by an independent source, then it is admissible.
There is also the “expanded” independent source doctrine in which a
partially tainted warrant is upheld if, after excluding the tainted information that led to its issuance, the remaining untainted information establishes probable cause sufficient to justify its issuance.
* Basically, if you can carve out the tainted evidence and still have enough to meet the necessary requirements, you’re good to go
114
What is the independent source exception to the exclusionary rule? what is the expanded independent source doctrine?
when do they apply?
The doctrine applies to evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from activities untainted by the initial illegality (Murray v. US)
An "expanded" independent source doctrine, in which a partially tainted warrant is upheld if, after excluding the tainted information that lead to its issuance, the remaining untainted information establishes probable cause sufficient to justify its issuance
This exception permits the introduction of evidence that was initially discovered during or as a result of an unlawful search but was later obtained independently by lawful conduct that was untainted by the initial illegality
115
What is the inevitable discovery exception to the exclusionary rule?
Tainted evidence is admissible if it would have been discovered in the
same condition by an independent line of investigation that was already being pursued when the unlawful search or seizure occurred.
Admission of evidence that was discovered in an unlawful search or seizure if it would have be discovered in the same condition anyway, by an independent line of investigation that was already being pursued when the unlawful search or seizure occurred
116
True or False:
Tainted evidence is admissible if it would have been discovered in the same condition by an independent line of investigation that was already being pursued when the unlawful search or seizure occurred.
True.
117
What is the attenuation exception to the exclusionary rule?
If there is enough time or a sufficiently large intervening event in between the illegal activity and the discovery of the evidence, then the evidence may still be admissible.
If the passage of time or intervening events break the causal relationship between the illegal activity and the evidence, the evidence may still be admissible
118
What is the private search doctrine exception to the exclusionary rule?
Evidence unlawfully obtained from the defendant by a private
person is admissible.
119
What is the knock-and-announce violation exception to the exclusionary rule?
evidence seized during execution of a lawful search warrant is admissible even though police violated the knock and announce rule.
120
What is the miranda violation exception to the exclusionary rule?
1) If the police discover tangible evidence based on statements obtained in violation of Miranda, the prosecution may be able to use that evidence against the defendant at trial (EXCEPT AT CASE-IN-CHIEF); and
2) a statement that the police obtained in violation of Miranda rights can be used to impeach he defendant’s credibility as a witness, if it is inconsistent with their statements at trial.
121
Fill in the missing component of the miranda violation exception to the exclusionary rule:
1) If the police discover tangible evidence based on statements obtained in violation of Miranda, the prosecution may be able to use that evidence against the defendant at trial (EXCEPT AT CASE-IN-CHIEF); and
2)
1) If the police discover tangible evidence based on statements obtained in violation of Miranda, the prosecution may be able to use that evidence against the defendant at trial (EXCEPT AT CASE-IN-CHIEF); and
2) a statement that the police obtained in violation of Miranda rights can be used to impeach he defendant’s credibility as a witness, if it is inconsistent with their statements at trial.
122
Fill in the missing component of the miranda violation exception to the exclusionary rule:
1)
2) a statement that the police obtained in violation of Miranda rights can be used to impeach he defendant’s credibility as a witness, if it is inconsistent with their statements at trial.
1) If the police discover tangible evidence based on statements obtained in violation of Miranda, the prosecution may be able to use that evidence against the defendant at trial (EXCEPT AT CASE-IN-CHIEF); and
2) a statement that the police obtained in violation of Miranda rights can be used to impeach he defendant’s credibility as a witness, if it is inconsistent with their statements at trial.
123
True or False:
Evidence discovered as a result of statements obtained in violation
of Miranda is admissible
True.
Evidence discovered as a result of statements obtained in violation
of Miranda is admissible
124
True or False:
Statements obtained in violation of Miranda may not be in used in
the Prosecution’s case-in-chief, but may be used to impeach
True.
125
True or False:
Illegally obtained evidence may be admissible to attack the defendant’s credibility on cross-examination, at least where necessary to prevent gamesmanship
True.
126
Is evidence that was unlawfully seized admissible if you had no right to privacy to the evidence?
Yes. Evidence unlawfully seized that you had no right to privacy
regarding is admissible
127
How many people are on a grand jury?
23 people
128
How are grand juries selected?
selected at random from a
fair cross section of the community in the district or division in which the federal grand jury convenes.
129
How long does a grand juror serve?
Generally up to 18 months, but can serve for up to 24 months if a judge grants an extension.
130
What are the two functions of a grand jury?
Grand juries perform both accusatory and investigatory functions.
131
What is the purpose of the grand jury?
The Grand Jury is intended to provide a shield against arbitrary or oppressive
action, by insuring that serious criminal accusations will be brought only upon the
considered judgment of a representative body of citizens acting under oath and under judicial instruction and guidance
132
The grand jury clause reads:
No person shall be held to answer for a capital or otherwise infamous crime, unless on a presentment or indictment of a Grand
Jury.
What does this mean?
This means that Americans cannot be charged with serious federal crimes except with an indictment by a grand jury
133
How many members of the grand jury constitute a quorum?
16 (of 23) constitute a quorum
134
How many members of the GJ must vote in favor of the indictment?
At least 12.
135
When can a GJ conduct an investigation?
The grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not,.” The function of the grand jury is to inquire into all information that might possibly bear on its investigation until it has identified and offense or has satisfied itself that none has occurred. “A grand jury investigation is not fully carried out until every available clue has been run down and all witness examined in every proper way to find if a crime has been committed.”
136
Do Grand juries have the power to subpoena for tangible evidence (records, videos, etc.) ?
Yes. via a Subpoena duce tecum.
137
What is a subpeona duce tecum?
A grand jury subpoena for tangible evidence (records, videos, etc.)
138
Can a grand jury compel testimony?
Yes. via a subpoena ad testifacandum.
139
What is a Subpoena Ad Testifacandum?
A grand jury subpoena to compel testimony.
140
Does a prosecutor have a legal obligation to permit witnesses to testify in front of a grand jury?
While the prosecutor has no legal obligation to permit such witnesses to testify, a refusal to do so can create the appearance of unfairness
Except in Oregon
141
True or False:
The Grand Jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”
True
142
True or False:
There is no burden of proof required for a Grand Jury to subpoena for evidence or compel testimony.
True
The Grand Jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”
This means that there is no burden of proof required for a Grand Jury to subpoena for evidence or compel testimony.
143
Does a GJ have a legal obligation to permit a witness to testify?
No.
The Grand jury has no legal obligation to permit a witness to testify.
However, a refusal to do so can create the appearance of unfairness.
144
What are Grand Juries limited by?
1. Constitutional protections - - An example of this is that they can’t prevent someone from pleading the Fifth. However, prosecutors can offer immunity in
exchange for such testimony, which can
coax testimony out.
2. Federal Statutes requiring the use of a search warrant or other court order - - An example of this is the requirement that there be a
search warrant for geolocation data pulled from cell towers because of the federal statute expressly requiring a search warrant.
145
where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury, and the indictment is otherwise valid, may the federal courts make a rule allowing the dismissal of said indictment?
No. The Supreme Court held that the Federal courts' supervisory powers over the grand jury did not include the power to make a rule allowing the dismissal of an otherwise valid indictment where the prosecutor failed to introduce substantial exculpatory evidence to a grand jury
146
Are Grand Jury proceedings secret?
Yes. Grand Jury proceedings are secret in accordance with Rule 6(e) of the FRCrP.
147
Is there a judge present during GJ proceedings?
No judge is present, the proceedings are led by a prosecutor, and the
defendant has no right to present his case.
148
Is the prosecutor obligated to present exculpatory evidence before the grand jury?
No. The Prosecutor is not obligated to present exculpatory evidence before the
Grand Jury.
149
Do individuals subject to Grand Jury proceedings have a 6th amendment right to counsel in the grand jury room?
No. Individuals subject to Grand Jury proceedings do not have a Sixth
Amendment Constitutional Right to Counsel in the Grand Jury room, nor
do they have a Sixth Amendment Right to Confront and Cross-Examine Witnesses.
150
Do individuals subject to Grand Jury proceedings have a 6th amendment Right to Confront and Cross-Examine Witnesses?
No. Individuals subject to Grand Jury proceedings do not have a Sixth
Amendment Constitutional Right to Counsel in the Grand Jury room, nor
do they have a Sixth Amendment Right to Confront and Cross-Examine Witnesses.
