1
Q
Key Amendment in Criminal Procedure
A
- Fourth Amendment (search and seizure)
- Fifth Amendment
- Sixth Amendment
- Eighth Amendment
2
Q
Exclusionary Rule
A
A remedy of American constitutional procedure whereby someone who has been the victim of illegal search or a coerced confession can (among their other remedies) have the product of that illegal search or that coerced statement EXCLUDED from any subsequent criminal prosecution.
3
Q
What are the limitations on exclusion?
A
- It does not apply to grand jury proceedings.
- A grand jury witness may be compelled to testify based on illegally seized evidence.
- Exclusion is not an available remedy in civil proceedings.
- Exclusion is not an available remedy in parole revocation proceedings.
- Exclusion does not apply to the use of excluded evidence for Impeachment purposes.
- Exclusion is not an available remedy for violations of the knock and announce rule in the execution of search warrants
4
Q
Exclusion Rule: Impeachment services
A
- Since 1980, ALL illegallly seized evidence may be admitted to impeach the credibility.
- Miranda violations qualify here.
- Only defendants trial testimony may be impeached, not the testimony of other defense witnesses.
5
Q
The Fruit of the Poisonous Tree Doctrine (Fruit after the Poison Act)
A
Excluded illegally seized evidence
Excludes all evidence obtained or derived from () Page 3 AR book
Does not apply to Miranda violations unless the police act in bad faith in obtaining such information.
6
Q
Three ways to cure the poisonous fruit
A
3Is
1. The government could show that it has INDEPENDENT source for that evidence, independent of that original police illegality.
- Inevitable discovery: the police would have INEVITABLY discovered this evidence anyway.
- INTERVENING acts of free will on the part of the Defendant.
7
Q
The Exclusionary Rule and Conviction
A
A conviction will not necessarily be overturned because improperly obtained evidence was admitted at trial.
On appeal, a court will apply the harmless error test.
Under the test, a conviction will be upheld if the conviction would have resulted despite in the improper evidence.
8
Q
Fourth Amendment
A
Protects citizen from unreasonable searches and seizure.
9
Q
Arrests and Detentions Under the 4th Amendment
A
- An arrest must be based on probable cause.
- Arrest warrants are generally not required before arresting someone in a public place.
- However, a non-emergency arrest of an individual in his home DOES REQUIRE an arrest warrant.
- Station house detention: the Police need probably cause to arrest you and compel you to come to the police station either for finger printing or interrogation.
10
Q
Investigatory Detentions Under the 4th Amendment
Terry Stops
A
The police have the authority to briefly detain a person even if they lack probable cause to arrest.
In order to make such a stop, the police must have a reasonable suspicion supported by articuable facts of criminal activity.
Whether the police have reasonable suspicion depends on the TOTALITY of CIRCUMSTANCES.
11
Q
What about automobile stops under the 4th?
A
Need reasonable suspicion.
EXCEPT for checkpoints.
12
Q
What about Traffic Stops and Police Dogs
A
During routine traffic stops, a sniff is not a search so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.
SC in 2013 held that during such a traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause for the search.
BUT, Police not having probably cause cannot use a drug sniffing dog directly outside the home of a suspected drug dealer.
13
Q
Search and Seizure Model Answer
A
- Governmental conduct?
- Reasonable expectation of privacy?
- Did the police have a valid search warrant?
- If the warrant is not valid, does an officer’s good faith defense save the defective search warrant?
- If a warrant is invalid and cannot be saved by the good faith defense or if the police never had any warrant at all, then you move to last step: Exceptions to the warrant requirement.
14
Q
Search and Seizure Model Answer: 1. Government Conduct?
A
The publically paid police - on or off duty.
Any private individual acting at the direction of the public police.
15
Q
Privately Paid Police Actions
A
DO NOT constitute governmental conduct UNLESS they are deputized with power to arrest.
16
Q
Examples of Private Paid Police without Power to Arrest
A
- Store Security
- Subdivision police;
- Campus police
17
Q
Search and Seizure Model Answer: 2. Reasonable expectation of privacy?
A
You must have standing.
18
Q
What are the automatic categories of standing?
A
- Own the premises search.
- You live on premises search.
- Overnight guests have standing to object to the legality of the search of the place they are staying.
Sometimes category:
4. You own the property seized, ONLY IF a reasonable expectation of privacy is given to the item or area searched. (Backpack)
19
Q
What are the “no standing” categories?
A
You have NO expectation of privacy, and therefore no standing for anything that you hold out to the public everyday.
Examples:
- The sound of your voice.
- The style of handwriting.
- The paint on the outside of your car.
- Account records held by a bank.
- Monitoring the location of your car on a public street or in your driveway
- Attaching GPS is a search. - Anything that can be seen across the open fields.
- Anything that can be seen from flying over in the public airspace.
- The odor emanating from you luggage or car.
- Your garbage set out on the curb for collection.
20
Q
Search and Seizure Model Answer: 3. Core Requirements for a Facially Valid Search Warrant
A
2Ps
- Probable Cause
AND - Particularity
21
Q
Standard of Probably Cause
A
A FAIR PROBABILITY that contraband or evidence of a crime will be found in the area searched.
22
Q
Particularity
A
The warrant must state with particularity the PLACE to be searched and the THINGS to be seized.
23
Q
Warrants and the Use of Informants
A
- If an officer’s affidavit or probable cause is based on informant information, its sufficiency is determined by the totality of circumstances.
- An informant’s credibility, and basis of knowledge are all relevant factors in making this determination.
24
Q
When is “no knock” entry permitted?
A
- If knocking and announcing would be dangerous, futile or inhibit the investigation.
- Biggest fear of inhibiting the investigation: destruction of evidence.
25
Search and Seizure Model Answer: 4. How to save a defective warrant?
The general rule is that an officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.
26
Exceptions to Good Faith Reliance By Officer to Save Defective Warrant
1. The affidavit underlying that warrant is so lacking in probably cause that no reasonable police officer would have relied on it.
2. The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it.
3. The police officer or prosecutor lied to or misled the magistrate when seeking the warrant.
4. If the magistrate is biased, and therefore has wholly abandoned his or neutrality.
27
Search and Seizure Model Answer: 5. Exceptions to the Warrant Requirement
1. Search incident to arrest.
2. The Automobile Exception
3. Plain View
4. Consent
5. Stop and Frisk
6. Evanescent Evidence, Hot Pursuit, and Special Needs Searches
**Community Care Taker
28
Search Incident to Arrest Exception
1. Arrest must be lawful
2. Arrest and search must be contemporaneous in time and place.
3. Geographic Scope Limitation: The person and the areas within the person's wing span.
4. Search incident to arrest and automobiles
29
What about when there is a search of the interior of the auto incident to arrest?
1. The arrestee is unsecured and still may gain access to the interior of the vehicle.
OR
2. The Police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.
MOST STATES: recognize the Community Caretaker (Emergency Aid) exception to this rule justifies a warrantless search if an officer faces an emergency that threatens the health OR safety of an individual or the public.
30
Hypo on Page 13
Hypo on Page 13
31
Hypo on Page 13 #2
Hypo on Page 13 #2
32
Point on Page 13: Basic Rule of Search
So long as search itself is valid, ANY contraband
33
The Automobile Exception to Warrant Requirement
In order for the police to search anything or anybody and fall under the automobile exception they must have PROBABLE CAUSE
ONLY IF: before searching anything or anybody the police have probably cause then they can search the entire car.
Moreover, if there is probably cause, the police may open (without a warrant) any package, luggage or other container which could REASONABLY CONTAIN THE ITEM they had probably cause to look for whether that package, luggage or other container is owned by the passenger or the driver.
The probably cause necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped BUT the probably cause must arise before anything or anybody is searched.
34
Entire Car
This includes the entire interior compartment, and the trunk.
35
Plain View Exception to Warrant Requirement
1. To constitute a valid plain view seizure the police officer must be legitimately present at the location where he or she does the viewing of the item seized.
2. It must be immediately apparent that the item is contraband or a fruit of a crime.
36
Consent Exception to Warrant Requirement
For consent to be valid, the consent must be voluntary.
37
What about 3rd party consent?
Where two or more people have an equal right to use a piece of property, either can consent to its warrantless search.
However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls.
38
Stop and Frisk Exception to Warrant Requirement
1. A Terry stop is a brief detention for the purpose of investigating suspicious conduct.
2. The legal standard for stopping: REASONABLE suspicion
3. The reasonable suspicion standard is less than the probable cause standard.
4. Terry "frisk" is a pat down of the outer clothing and body to check for weapons.
5. If probable cause arises during an investigatory stop, the detention can become an arrest and the officer could then conduct a full search incident to that arrest.
39
What negates consent?
Police saying we have a warrant negates consent.
40
What about stop and frisk in auto stops?
If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the office may:
1. Conduct a frisk
AND
2. May search the vehicle so long as it is limited to areas in which a weapon may be placed.
41
What about when the cop pats down and finds a gun or drugs?
If the officer reasonably believes by the PLAIN FEEL that something is a weapon or contraband it will be admissible.
42
Evanescent Evidence Exception to Warrant Requirement
Evidence that might disappear quickly if the police took the time to get a warrant.
**Fingernails
**Need a warrant for Blood Alcohol level (if practical)
Fleeting evidence
43
Hot Pursuit Exception to Warrant Requirement
If the police are not within 15 minutes behind the fleeing felon, it is NOT valid hot pursuit exception.
If the police are truly in hot pursuit they can enter anyone's home without a warrant, and any evidence they see in plain view will be admissible.
44
Inventory Searches Exception to Warrant Requirement
Before incarceration of an arrestee, the police may search:
1. the arrestee's personal belongings
AND/OR
2. the arrestee's entire vechicle
45
Public School Searches Exception to Warrant Requirement
Public school children engaged in extracurricular activities can be randomly drug tested.
-Anything, school dance
Warrantless searches of public school children's affects, such as purses and/or backpacks is permissible to investigate violations of school rules.
46
When is a school search held reasonable?
1. It offers a moderate chance of finding evidence of wrongdoing;
2. The measures adopted are reasonably related to objectives.
3. Search is NOT excessively intrusive.
47
Wire Tapping and EavesDropping under the 4th Amendment
All wiretapping and eavesdropping requires a warrant.
48
Exceptions to the eavesdropping rule
"Unreliable ear" and " Uninvited ear" (no warrant necessary)
49
"Unreliable Ear"
Everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired and therefore has no 4th Amendment objection on the basis that it was a warrantless search.
50
"Uninvited Ear"
A speaker has no 4th Amendment right if she makes no attempt to keep the conversation private.
51
Confessions: Miranda Warnings
1. You have the right to remain silent;
2. Anything you say can be used against you in court;
3. You have the right to an attorney;
AND
4. If you can't afford an attorney, one wil be appointed for you if you so desire.
**Need not be verbatim, so long as the substance of the warnings is conveyed.
52
What triggers Miranda Warning?
Custodial Interrogation
53
Custody under Miranda Warnings
You are in custody if, at the time of the interrogation, a reasonable person would not be free to leave.
- not free to leave
- coercive measures
**Not routine traffic stops or probation interviews
54
Interrogation under Miranda Doctrine
Any conduct where the police knew or should have know that they might illicit incriminating response from the suspect.
* *Interrogation is more than just asking questions
* *Not required prior to admissibility of a spontaneous statement
55
How to waive your Miranda rights?
A Miranda waiver must be knowing and voluntary.
**Courts will employ a totality of circumstances test in making this determination.
56
How to invoke your Miranda rights?
Might be silent.
- If silent MUST BE unambiguous
The police may re-initiate questioning after the Defendant has invoked the right to silence if they wait a significant amount of time, re-mirandized, and the questions are limited to a crime that was not subject of the earlier questioning.
- If breach of custody, must wait 14 days
57
How to invoke the right to counsel?
Unambiguous request
58
What happens when a person invokes the right to counsel?
All questions cease UNTIL:
1. The accused is given an attorney.
OR
2. The accused initiates further question.
59
Fifth Amendment vs. Sixth Amendment Right to Cousel
1. The Court-created 5th amendment right to counsel arises when a suspect invokes his Miranda rights and requests an attorney.
2. The 5th right to counsel is NOT offense specific and thus applies to the entire process of custodial police interrogation.
3. Conversely, the 6th right to counsel IS offense specific, meaning counsel would only need to be present if the Defendant were being asked questions about the specific case for which the Defendant has retained counsel.
4. BUT NOTE: In 2009, SC held that when a Defendant has not specifically requested counsel, and has merely been given appointed counsel, the police can come back and ask Defendant to waive his 6th Amendment right to counsel and talk to them about the crime for which he was charged.
60
What are the two substantive bases on which you can attack a pretrial identification?
1. Denial of the right to counsel
2. Denial of due process
The remedy for an unconstitutional pre-trial identification is to EXCLUDE the in-court identification UNLESS the State can show that it had an adequate INDEPENDENT SOURCE for that in-court identification (independent of that bad line-up).
The most common independent source is that the victim or witness had AN ADEQUATE OPPORTUNITY TO OBSERVE the Defendant at the time of the crime.
61
Denial of the right to Counsel
POST CHARGE line ups (standing in a line)
AND
show ups (one-on-one) gives rise to the right to counsel
**There is no right to counsel when the police go out to show the victim or witness photographs.
62
Other stages where there is NO right to Counsel
1. Taking of blood samples.
2. Taking of handwriting samples.
3. Pre-charge lineups
4. Brief recess during defendant's testimony at trial.
5. Parole and probation revocation proceedings;
6. The taking of fingerprints.
63
Denial of Due Process
1. Certain pretrial identification techniques are so unnecessarily suggestive
AND
2. so substantially likely to produce a miss-identification that they deny due process of law.
64
Exclusion in Pre-Trial Procedures
1. Bail
| 2. Grand Juries
65
Exclusion Applied to Bail
Bail issues are immediately appeal-able.
Preventive detention is Constitutional
66
Exclusion Applied to Grand Juries
Exclusion does not apply.
The proceedings of Grand Juries are secret.
Defendant has not right to appear AND no right to send a witness
67
Exclusion Applied to Prosecutorial Duty to Disclose Exculpatory
A Prosecutor's failure to disclose evidence, whether willful or inadvertant, violates Due Process Clause and may be grounds for reversal of a conviction IF:
1. The evidence is favorable to Defendant
AND
2. Prejudice has resulted, there is a reasonable probability that the result would have been different had the information been disclosed.
68
Exclusion Applied to Trial
1. Right to unbiased judge.
2. Right to a jury trial.
3. Right to Counsel
4. Right to confront witnesses.
69
Bias Judge
Having a financial interest in the outcome of the case
OR
Actual malice against the defendant.
70
Right to jury trial
Attaches anytime the Defendant is tried for an offense for which the maximum authorized sentence exceed Six months.
**Not up to or including 6 months, EXCEEDING
71
Number of Jury
The minimum number of jurors permissible is 6.
Must be unanimous if minimum, majority if 12.
72
Right to Jury Pool Standards
Right to have JURY POOL reflect fair cross section of the community
73
The Use of Peremptory Challenges for Jury Trials
Challenge to exclude a prospective juror for any reason what so ever.
**Not gender or race.
74
Right to Counsel
A criminal Defendant's right to counsel applies to all CRITICAL STAGES of a prosecution, including trial.
A Defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent, and he is competent to proceed pro se.
- can be determined by Trial Judge
75
Ineffective Assistance of Counsel
There must be deficient performance by counsel and, but for such deficiency, there is a reasonable probability that the result of the proceeding would have been different.
Must specify particular errors of trial counsel.
**Not mere inexperience or strategy.
76
Right to Confront Witnesses (not absolute)
The absence of face-to-face confrontation DOES NOT violate the 6th Amendment when preventing such serves:
1. An important public purpose (insulating a child)
AND
2. The reliability of the witness testimony is otherwise assured.
**Being disruptive in court room can relinquish this right.
77
Guilty Pleas and Plea Bargaining
A court will not disturb guilty please after sentencing.
If Guilty plea, Judge must get on record from Defendant:
1. Nature of the charge
2. The max authorized penalty and any mandatory minimum penalty;
3. That they have the right to plead not guilty and to demand a trial;
AND
4. ON RECORD
78
Four Good Bases for Withdrawing a guilty plea after sentence
1. The plea was involuntary (not a threat of charge for more serious crime)
2. Lack of jurisdiction
3. Ineffective assistance of counsel
4. Failure of the prosecutor to keep an agreed upon plea bargain
79
Death Penalty
Any death penalty statute that does not give the Defendant a chance to present mitigating facts and circumstances is unconstitutional.
There can be no automatic category for imposition of the death penalty.
The State may not by statute limit the mitigating factors; all relevant evidence is admissible.
On a Jury may determine the aggravating factors justifying imposition of the death penalty.
80
Double Jeopardy
Attaches when Jury is sworn.
Attaches when first witness is sworn in bench trial.
**Not general for civil.
81
Exceptions Permitting Retrial
1. Hung Jury
2. Mistrials for Manifest necessity (medical emergency)
3. A retrial after a successful appeal (but not a more serious crime)
4. Breach of an agreed upon plea bargain by the Defendant (reopens)
* *Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not.
* *Lesser included offenses are barred when retrial of greater offense.
82
Double Jeopardy of Separate Sovereigns
DJ bars retrial for the same offense by the same sovereign.
83
Fifth Amendment Privilege Against Compelled Testimony
The 5th Amendment Privilege against self-incrimination can be asserted by anyone in any type of case.
Anyone asked a question under oath in any kind of case, wherein the response might tend to incriminate him is entitled to PLEADIN' DA FIFFF! ONE, TWO, THREE, FOUR, FIFFF
Must be asserted when first asked question.
Must be waived in civil for a later criminal.
No retroactive bar of answering.
84
Scope of Protection of the Fifth Amendment
Protects from compelled testimony.
Does not protect citizens from having the government use physical evidence in ways to incriminate them.
85
Examples of Non-testimonial evidence that the Prosecution CAN Compel a person to produce
1. Blood sample;
2. Handwriting sample;
3. Voice sample;
4. Hair sample
86
The Fifth Amendment and Prosecutorial Conduct
Unconstitutional for Prosecutor to make a negative comment on the Defendant's failure to testify or on the defendant choosing to remain silent after being given the Miranda warnings UNLESS
- in response to defense counsel's assertion that the Defendant was not allowed to explain his side of the story.
- silence can be used against you in the court of law
**Harmless error standard is applied
87
Three Ways to Eliminate the Fifth Amendment Privilege
1. Under grant of immunity
2. No possibility of incrimination (Statute of limitations has run)
3. Waiver (taking the stand)
Bar Exam
flashcards
Decks in class (19)
# Cards
-
Evidence: Real and Documentary Evidence27
-
Torts: Arkansas Judges Lecture321
-
Agency and Partnership128
-
Multi-State Performance Test4
-
Corporations130
-
Arkansas Evidence216
-
Real Property194
-
Criminal Law111
-
Criminal Procedure87
-
Contracts257
-
Secured Transactions87
-
Commercial Paper8
-
Constitutional Law130
-
Test Issues15
-
Family Law40
-
Federal Jurisdiction and Procedure155
-
Wills and Trusts0
-
Bare Bones Con Law79
-
Mini Review0
