Criminal Procedure

Exclusionary rule

Prohibits introduction of evidence obtained in violation of D's 4A, 5A and 6A rights

Effect of exclusionary rule

Unconstitutionally obtained evidence is inadmissible at trial, and "fruit of the poisonous tree" - evidence obtained from exploitation of the unconstitutionally obtained evidence - must also be excluded

Exceptions to the Fruit of the Poisonous Tree doctrine

Evidence derived from statements obtained in violation of Miranda, from a source independent of the original illegality, an intervening act of free will, inevitable discovery, violations of the knock and announce rule

Exclusionary rule doesn't apply to (5)

Grand juries (unless evidence obtained in violation of federal wiretapping statute), civil proceedings, evidence obtained in violation of state law or of internal agency rules, parole revocation proceedings

Harmless error test

If illegal evidence is admitted, conviction should be overturned on appeal unless government can show beyond reasonable doubt that error was harmless

Valid search under 4A (3)

Warrant, proper or relied on good faith, properly executed

Warrantless search exceptions (6)

Incident to lawful arrest, automobile search, plain view, consent, stop and frisk, hot pursuit and evanescent evidence

Entrapment (2)

Idea for crime came from police, D not predisposed to commit crime before solicitation

Some unconstitutionally obtained evidence can be admissible…

when D (not D's W) has testified in a manner inconsistent with that evidence, improperly Mirandized statements, pre-/post-arrest un-Mirandized silence, unconstitutionally seized evidence (obtained from an illegal search)

Exceptions to exclusionary rule for impeachment does not apply to

coerced confessions, post-Miranda silence, Massiah (6th Amendment right to counsel) violations

Exceptions to exclusionary rule when police rely in good faith on

judicial opinion later changed by another decision, statute/ordinance later declared unconstitutional, search warrant defective as a result of insufficient probable cause

Exceptions to good faith reliance on a defective search warrant

Affidavit (or underlying law/judicial opinion) is so lacking in probable cause that no reasonable police officer could rely on it; warrant is invalid on its face (e.g., fails to state with particularity place to be searched/things to be seized); affiant (cop) liked to or intentionally misled the magistrate; magistrate "wholly abandoned his judicial role"

When you try to cross the border into the U.S., you belong to

customs

Exception to good faith reliance on a defective search warrant

Affidavit is so lacking in probable cause that no reasonable officer would rely on it

Constitutional requirements binding on states (10)

Fourth Amendment prohibition against unreasonable searches and seizures, and the exclusionary rule; Fifth Amendment privilege against compulsory self-incrimination; Fifth Amendment prohibition against double jeopardy; Sixth Amendment right to speedy trial; Sixth Amendment right to public trial; Sixth amendment right to trial by jury; Sixth Amendment right to confront witnesses; Sixth Amendment right to compulsory process for obtaining witnesses; Sixth Amendment right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed; Eighth amendment prohibition against cruel and unusual punishment

Constitutional requirements NOT binding on states

Right to indictment by a grand jury for capital/infamous crimes; unclear whether 8th Amendment prohibition against excessive bail creates a right to bail

Situations in which magistrate wholly abandoned judicial role

Magistrate was also a prosecutor; magistrate was paid per search warrant; magistrate acted in such a way to have become a member of the law enforcement team

___________ is never harmless error

Denial of the right of counsel at trial

D may have admissibility of evidence/confession decided…

by a judge outside the hearing of the jury

Who bears burden of establishing admissibility of evidence, and by what standard?

Prosecution, and by a preponderance of the evidence

What is D's right in a suppression hearing?

D may testify w/o testimony being admitted against him at trial on the issue of guilt

Are arrests seizures w/I scope of the Fourth Amendment?

Yes

What is a seizure?

When a reasonable person would believe she is not free to leave/terminate an encounter with the government

What is an arrest?

When police take a person into custody against her will for purposes of criminal prosecution/interrogation

What are the requirements for an arrest?

Must be based on probable cause - trustworthy facts/knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime; warrant required only for a nonemergency arrest of a person in his home, meaning a place where someone lives or is spending the night

Requirements for investigatory detentions (stop and frisk)

Police must have reasonable suspicion of criminal activity/involvement in a completed crime, supported by articulable facts (more than a hunch). If Police have reasonable suspicion that detainee is armed/dangerous, may frisk for weapons.

Limits on investigatory detentions

Must be no longer than necessary to conduct a limited investigation to verify the suspicion. Police may ask detained person to identify himself

When can investigatory detentions turn into arrest?

If detainee fails to comply with request to say his name; if other probable cause for arrest arises

Knock and announce rule … and consequence for violating?

Police must knock, and waited maybe 20 seconds before bursting in … not really any consequence

When may police stop a car?

When they have at least reasonable suspicion to believe a law has been violated

When may police set up road blocks to stop cares w/o individualized suspicion that driver violated some law?

Roadblock must stop cars on the basis of some neutral, articulable standard (e.g., every car), and be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility

Do you need an arrest warrant to arrest a person in public?

No

Search and seizure model

Was there state action? Does D have standing to object? Is there a valid search warrant? If not, does it fall into an exception allowing warrantless search?

When does a D have standing to object to a search and seizure?

D had a reasonable expectation of privacy in the area searched or items seized

When is there state action for purposes of search and seizure?

Search conducted by a person who is working for or working at the urgent of a government

What is an off-duty police officer?

Constitutionally, there is no such thing

Fourth Amendment rights are not violated when police…

Eavesdrop under certain circumstances; scrape paint off the outside of a car; monitor vehicles (even electronically) in public places; search open fields; observe during a fly-over conducted in public airspace; search through garbage trash containers left out for pick-up on a public street (even if there's a local law prohibiting anyone, including police, from rummaging through trash); search for contraband, where only the presence/absence of the contraband will be revealed by the search (e.g., drug-sniffing dog)

What is the basis for excluding evidence discovered as part of a "pretextual" stop?

There is none, as long as there is a legal basis for the stop.

Standing to challenge a search and seizure seems to be automatic on the bar exam when…

D owns the premises searched, lives on premises searched, is an overnight guests at the premise searched

If search/seizure is in violation of local/state/federal law, must it be suppressed?

No - only when search/seizure is in violation of Constitution

Which is valid, and why: A roadblock to test for drunk drivers, or a roadblock to search for illegal drugs?

Drunk drivers, because drunk driving is a problem closely related to cars/roadways, while drug checkpoint detects evidence of ordinary criminal wrongdoing

Is x-raying a suitcase a search?

Yes

Is drug-sniffing dog a search?

No, because it only reveals presence/absence of contraband, and there is no reasonable expectation of privacy in owning contraband, so it's not protected by the Fourth Amendment

What's the risk with drug-sniffing dog searches?

Keeping suitcase for 30 minutes, while waiting for dog to get to sniff it, is a seizure that violates D's constitutional rights

Generally on bar exam, D has standing to object if

legitimately present during search, owned property seized at the time it was seized

Do overnight guests have standing to object to a search of the residence?

Yes

A drug dealer in a residence just for purposes of conducting a drug deal ____ have standing to object to a search of the residence

does not

Is a passenger seized when a car stops the vehicle?

Yes

Does a passenger have standing to object to the introduction into evidence of the contents of the trunk of the automobile, or objects found in the trunk?

Only if the passenger testifies at the standing hearing that the item and any contents belong to them.

What are the requirements for a valid search warrant?

Probable cause (or good faith exception), which can be provided by even an anonymous informer - it's based on the totality of the circumstances; magistrate must be given enough information so that she can make a "commonsense evaluation" based on the "totality of the circumstances"; neutral and detached magistrate issued the warrant, warrant was properly executed (e.g., not stale), warrant states with sufficient particularity the place to be searched and the type of items sought, warrant was properly executed

What's wrong if police arrest suspects in their living room, put them in a patrol car, and then re-enter and search the living room?

It's not contemporaneous in time and place to the arrest, so it's not a search incident to lawful arrest

Requirements for search incident to lawful arrest

Arrest must be lawful and come before the search) and contemporaneous in time and place to the arrest, geographic scope must be limited to suspect's wingspan (keeps D from swallowing drugs/grabbing weapons); protective sweeps

Requirements for search incident to lawful arrest - for automobile searches

Entire interior passenger compartment (not trunk) are automatically considered within any occupant's wingspan, if occupant is no longer in the car, the police are nonetheless permitted to enter/search the vehicle, recent occupant rule (police may search incident to lawful arrest an occupant of a vehicle before being confronted by the police - probably only moments before)

What does a prospective sweep allow?

Police incident to an arrest in a residence may look in areas "immediately adjoining" the place of the arrest for other persons who might attack the police - no probable cause/reasonable suspicion required. Back rooms - require reasonable suspicious

What does the automobile exception allow?

Probable cause required, but no warrant, warrantless search can be of whole vehicle (including trunk) and any packages/containers that could reasonably contain the items for which police have probable cause to search; can arise after vehicle is already stopped.

Potential problems for automobile exception searches

Stop must be constitutionally justified, and police may not detain vehicle longer than necessary

Searches at a border (point of entry/customs) require…

No probable cause, no warrant, not even reasonable suspicion

Searches at a border, away from the point of entry/customs…

are governed by all normal search/seizure rules

When is an item in plain view?

It must have been seen, heard, smelled or felt by the officers when they were in a place they had a constitutional right to be

When may items discovered in plain view be seized?

Only if there is probable cause to connect the item to the crime (unless the item is abandoned property - no reasonable expectation of privacy in such property)

What if evidence other than a weapon is found an removed?

Whether it is constitutionally retrieved may depend on how much like a weapon the item may have reasonably seemed during the exterior pat down

When may police remove an item of contraband from the interior of the suspect's clothing?

When it felt like contraband, based on "plain feel" - needs to be first feel

________________ is constitutionally sufficient to stop and briefly detain a suspect or a vehicle

Reasonable suspicion

What is the difference between reasonable suspicion and probable cause?

Both may involve past/present/future criminal conduct, but reasonable suspicion involves less objective evidence of criminality

What are the requirements for consent?

Consent must be voluntary and intelligent; police do not have to warn suspects that they have a right to refuse to consent

When can a third party consent?

When two or more persons have/are reasonably believed to have an equal right to use/occupy a piece of property/premises, then either one can consent to a warrantless search and bind the other

When can a third party NOT consent?

When the objecting co-occupant is present and informs the police of their opposition. Police must honor that objection

Evanescent evidence exception applies when

evidence could significantly disappear in the time needed to obtain a warrant; any bodily intrusion must be reasonable or could violate due process

How hot must hot pursuit be?

Real hot

Which two exceptions to the warrant requirement are often combined?

Hot pursuit and plain view

What is the general rule re wiretapping?

All wiretapping and eavesdropping require warrant - BUT we all assumed he risk that the person to whom we are speaking has agreed to allow the police to listen to the conversation

Does the 4th Amendment protect pin-register numbers (e.g., phone numbers you dial)?

No - no reasonable expectation of privacy

When does jeopardy attach itself to a case?

When D pleads guilty or a jury is sworn or, in judge trial, when the first witness takes the stand and is sworn to tell the truth

Once jeopardy attaches, a defendant cannot…

be retried for the same offense by the same sovereign after a dismissal, acquittal or conviction

Exceptions permitting retrial:

Hung jury, mistrial is granted after having been requested by the defense or even if over defense objection for manifest necessity (e.g., D becomes seriously ill during trial, or D bribed jury), successful defense appeals (except for reversal based on insufficiency of the evidence at trial), failure of D to keep an agreed-upon plea bargain

How to tell when two crimes count the same crime for jeopardy purposes:

If one crime has all the same elements that another crime has.

When can D be tried/sentenced separately for the same offense?

In separate sovereigns - e.g., fed court/state court, different states, even state, federal court, court of a Native American Nation

If a defendant is tried for battery and later the victim dies, D _______ be re-tried for _________

D can be retried for homicide

Re-litigating a factual issue to a D's detriment is …

barred by double jeopardy - only applies to acquittal, not to convictions

D can object to the admissibility of ________ confession

His, but only his

Miranda essentials

Custody, interrogation

These situations are held not to constitute custody

Probation interviews, tax audit interviews, the period early in routine traffic stops

Interrogation is

any conduct police knew / should've known would obtain an incriminating statement

For answers to custodial interrogation to be constitutionally admissible, when offered against the interrogated suspect in P's case in chief,

Police must have given Miranda warnings and obtained a waiver

Waiver must be

voluntarily given

What is the suspect's burden re Miranda?

Suspect has burden of clearly exercising his Miranda rights. Police need not seek to clarify ambiguities not stop attempting to obtain a waiver unless suspect unambiguously exercises Miranda rights

Before the police may ask any questions seeking an incriminating response…

there must be a clear waiver of the Miranda rights by the suspect

Exceptions to Miranda:

Waiver, spontaneous statement (not in response to interrogation), use for impeachment of S's testimony (includes pre- or post-arrest silence, so long as silence was not post-warnings; post-warning silence is the one occasion where the use of such silence against a suspect would violate Due Process), NO Fruit of the Poisonous Tree exclusion (non-testimonial evidence), substantial compliance w/ wording of Miranda can be constitutionally sufficient; public safety exception applies to Miranda (not applicable to coercion)

Why is there no requirement to give Miranda warnings in a public safety scenario?

Because S may be more likely to answer, and public policy wants an answer

If a suspect exercises Miranda right to remain silent about one crime…

police may give Miranda warnings about other crimes

If suspect exercises Miranda right to counsel…

he may not again be interrogated without his attorney present, even if questioning relates to a completely different crime, under his Fifth Amendment right to counsel

Does taking a coerced confession violate the Fifth Amendment?

Not if the confession is not incriminatory, but other constitutional offenses might take place while confession is extracted (e.g., violence)

Confessions must be

voluntary

Sixth amendment right to counsel applies when D is both

represented by counsel and formal proceedings have commenced; it is case specific

What is the 6th Amendment right to counsel?

If suspect has attorney, and proceedings have begun, government may not ask D about charged offenses without his attorney present (whether or not D is in custody)

If suspect has an attorney and proceedings have begun, may police ask a D about crimes other than those for which he has been charged and has counsel?

Yes, because the Sixth Amendment right to counsel is case-specific

For which line-ups is D entitled to Counsel under the Sixth Amendment Right to Counsel?

Post-indictment/arraignment in-person line-ups

Does the Sixth Amendment Right to Counsel entitle D to counsel for photo line-up or handwriting sample?

No

How can a line-up or show-up be a denial of due process?

If the line-up or show-up is so unnecessarily suggestive as to create a substantial likelihood that it will produce a misidentification

What is the consequence of an unconstitutional line-up?

The line-up identification is admissible, and the in-court identification will also be inadmissible unless the government can prove, by clear and convincing evidence, that there was an independent source for W's in-court identification (e.g. W knew D before the crime or got a particularly good look at him during the crime)

When is an indigent person entitled to appointed counsel?

When conviction would lead to jail time - so it's required in misdemeanors only if jail sentence is actually imposed

Right to effective assistance of counsel includes right to appointment of …

necessary experts in felonies

Refusal to appoint such experts could be deemed…

a violation of the right to effective assistance of counsel

Consitutional right to counsel guarantees everyone an attorney for which appeals?

First appeal of right.

Ineffective assistance of counsel as a constitutional issue requires that D establish these two elements:

D must show that criminal defense attorney's performance was unreasonably deficient (dropped below actual standard of care); D must also establish that, but for his attorney's defective performance, result of the proceedings would have bene different.

Grand jury requirement is ______ imposed on states

Never constitutionally - it is only a federal requirement

Do D/D's attorneys have right to be present/call/question witnesses at grand jury?

No

When does the Sixth Amendment right to speedy trial apply?

Only to post-arrest delays. Pre-arrest delays are unconstitutional only if they violate D's due-process rights

When may bail issues be appealed?

Immediately

Can preventive depention be constitutional?

Yes - no substantive due process violation if no bail would insure D's return, or if D were released there would be no way to ensure safety of community; if D has opportunity for hearing on issue of preventive detention, no procedural due process problem

Need a jury verdict be unanimous?

Not constitutionally

How small can a jury be?

6 jurors - but then GUILTY verdicts do need to be unanimous

For which offenses is there a constitutional right to trial by jury?

For all non-petty offenses (potential sentence > 6 months is possible)

The jury pool must represent _____________ of the community

A fair cross-section

Does the fair cross-section requirement apply to individual juries?

No

Types of challenges

for cause, peremptory (finite # challenges requiring no explanation)

When is it unconstitutional for either P or D to exercise a peremptory challenge?

Because of race or gender (Supreme Court hasn't said whether applies to other factors - e.g., national origin)

In a capital case, may P automatically exclude jurors because they doubt the appropriateness of death penalty?

No

When can a prospective juror be excluded for cause re death penalty?

When their opposition to the death penalty would substantially impair their ability to follow the court's instructions

A guilty plea waives…

right to trial by jury

What is the advisement requirement to a guilty plea?

Judge on the record must determine that there has been an advisement and waiver of all the constitutional rights D is giving up by virtue of pleading guilty, D mus be advised of the nature of charges and of maximum possible sentences/mandatory minimum sentences; D must be advised that he has a right to plead not guilty and have a trial if he so desires; if there is a mistake in taking this type of plea on the record, then D may withdraw his plea and plead anew

Plea bargains are governmened by principles of…

contract theory - this means specific performance is among the remedies

It's cruel and unusual punishment to impose death penalty on someone who

was under 18 when crime was committed, or who is mentally retarded (as defined by state law) or who is at the time of their execution legally insane

After a break - longer than a break for lunch - in a custodial interrogation, does a new Miranda warning need to be given?

Yes

In order for the stop-and-frisk doctrine to trigger, police must have a ____________.

Reasonable suspicion that criminal activity is afoot

What's a Terry frisk?

A patdown when police have a reasonable suspicion

Even when double-jeopardy attaches, D can be retried when in the same sovereign when…

Dismissal of case was based on a technicality

If you initiate a grant of mistrial in your first trial, you can't plead __________ in the second one.

Double Jeopardy

Does a search warrant authorize the police to search persons found on the premises who are not named in the warrant?

No, but if police have probable cause to arrest someone found on the premises, they may search him incident to the arrest

A defendant who is ______________________ is entitled to Miranda warnings

custodial interrogation

Under the _________, D has the right to assistance of counsel ____________

Sixth Amendment; after formal charges have been filed

At which IDs does suspect have the right to the presence of attorney under which amendment?

Post-charge line-ups or show-ups; Sixth Amendment

____________ makes an identification inadmissible if it is ______________ and there is ____________

Fourteenth Amendment Due Process; unneccessarily suggestive and there is a substantial likelihood of misidentification

Police need __________ to detain; ___________ to arrest

Reasonable suspicion; probable cause

Police need a reasonable suspicion to __________; probable cause to __________

Detain; arrest

The ___________requieres that D be advised of his Constitutional rights before being suspected to ___________ interrogation

Fifth Amendment; constitutional

_____________ requires that D not be questioned by police after __________________

Sixth Amendment; after formal charges have been filed

A confession ________________ can be used for the limited purposes of impeaching D, but ________________ can never be used to impeach

taken in violation of Miranda; an involuntary confession

___________ receives, relieves, comforts, or assists another knwoing he has committed a felony, in order to help the felon escape arrest, trial or conviction

Accessory after the fact

When may D waive right to counsel and represent himself?

When waiver is voluntary and intelligent, and D is competent to represent himself pro se.

What is the consequence of violation of D's right to represent himself?

Overturned conviction

When does D have right to assistance of counsel?

After formal charges have been filed

___________ requires that a confession be voluntary.

The Fourteenth Amendment/due process.

How does D challenge probable cause in a warrant?

By showing that affiant intentionally or recklessly included a false, material statement

What did the U.S. Supreme Court hold about Miranda warnings re questioning by a cellmate?

Miranda warnings are NOT required before questioning by a cellmate unknown to defendant to be covertly working for the police, when cellmate is not paid (or was not acting under police direction?)

When is the Sixth Amendment Right to Counsel violated re informants?

When an undisclosed, paid government informant is place in D's cell, after D has been indicted/charged, and deliberately elicits statements from D recarding the crime for which D has been charged

What is the term for a llawful police search of a residence beyond D's wingspan, and what is required to do it?

Protective sweep, authorized if police believe accomplices may be present, or to secure premises while a warrant is obtained.