Criminal Procedure

Question 1

4th Amendment requirements

Answer 1

Prohibits unreas searches and seizures

1. govt agent/conduct
2. violation of reas expectation of privacy of place
   - right to possession
   - his home
   - overnight guest
   - NOT things held out to public

Question 2

Detentions

Answer 2

Arrest

1. custody against suspect’s will
2. for purposes of criminal prosecution or interrogation
3. probable cause (PC) required
   - trustworthy facts
   - reas person would think crime was committed
4. warrant not required, except for home arrest

Stop and frisk

1. stop
   - reas suspicion (RS) of criminal activity
   - supported by articulable facts (> mere hunch)
2. frisk
   - RS detainee is armed and dangerous
3. police must act in diligent and reas manner in confirming or dispelling suspicions
   - patdown of outer clothing, plain feel for weapon or contraband
4. can briefly seize property based on RS

Automobile stop

1. need RS law violated
2. pretext stop ok if there is PC for traffic violation
3. can seize all occupants, order them out, frisk if RS armed

Roadblocks

1. neutral, articulated standard
2. designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility

Question 3

Warrantless search exceptions

Answer 3

1. Automobile search
   - need PC
   - any container might reas contain the evidence
2. Consent
   - voluntary, but does not need to be informed right not to consent
   - authority to consent
   - anyone w/ actual/apparent right to use/occupy property can consent
3. Good faith of invalid warrant
4. Hot pursuit, evanescent evidence, emergency aid
5. Incident to lawful arrest
   - contemporaneous in time and place w/ arrest
   - automobile - can search passenger compartment after secure if they reas believe evidence of offense can be found
   - protective sweep - if police believe accomplices present
   - inventory search at police station if established procedure
6. Plain view
   - legitimately on premises
   - discover evidence
   - in plain view
   - PC evidence is of a crime
7. Public school - must be reasonable:
   - moderate chance of finding evidence of wrongdoing
   - measures reasonably related to objectives of search
   - not excessively intrusive
8. Stop and frisk

Question 4

Warrant requirements

Answer 4

A. Probable cause - no PC if:

1. false statement by police in affidavit
2. intentionally/recklessly included; and
3. material to finding PC

B. Precise on its face

1. place to be searched
2. items to be seized

C. Neutral and detached magistrate

D. Properly executed

1. by police
2. no unreas delay
3. knock and announce (but failure will not suppress evidence)

Question 5

4th Amendment border searches

Answer 5

1. roving patrols inside US may stop vehicles based on RS
2. illegally obtained evidence may be used at deportation hearing
3. only rights that extend to border search are 8th Amendment (cruel & unusual punishment)

Question 6

4th Amendment wire tapping

Answer 6

1. PC
2. warrant must name suspect and describe particular conversation
3. must be for a brief time
4. recorded conversations must be returned to the court

Question 7

Confessions

Answer 7

5th/14th A (due process)- must be voluntary

6th A - right to assistance of counsel

1. after formal charges filed
2. at all critical stages of prosecution
3. D can waive - knowing and voluntary
4. remedy - automatic reversal of conviction
5. statement can be used for impeachment

5th A - privilege against testimonial self-incrimination

1. Miranda warnings for custody before interrogation
2. only if D knows being interrogated by govt agent
3. custody - reas person under circ would feel free to terminate interrogation and leave
4. interrogation - conduct likely to elicit response
5. public safety exception

Question 8

Pretrial identification

Answer 8

6th A - right to presence of attorney post-charge lineup or showup.

5th/14th A (due process) - unnecessariy suggestive and substaintial likelihood of misidentification

Exclusionary rule if violation

Question 9

Exclusionary rule

Answer 9

Fruit of poisonous tree doctrine, exceptions:

1. fruits derived from unintentional violation of Miranda
2. independent source
3. intervening act of free will by D
4. inevitable discovery
5. attenuation - sufficient time b/w illegal search and discovery
6. violation of knock and announce rule
7. good faith reliance on
   - defective search warrant
   - law
   - clerical error
8. impeachment purposes

Harmless error test

• on appeal - if illegal evidence admitted, overturn unless govt can show beyond reas doutb error was harmless
• habeaus corpus - petitioner must show error had substantial and injurious effect or influence

Question 10

Right to fair trial

Answer 10

1. Right to speedy trial (6A)
   - based on totality of circumstances
   - right attaches when D arrested or charged
2. Right to exculpatory evidence by prosecutor (due process)
   - conviction reversed if D shows:
   - - evidence is favorable; and
   - - prejudice has resulted (reasonable probability outcome would be different)
3. Right to public trial (6A)
4. Right to unbiased judge (due process)
   - actual malice to D
   - financial interest in guilty verdict
5. Right to jury trial (6A)
   - only for serious offenses (>6mon imprisonment)
   - at least 6 people
   - does not have to be unanimity if»_space;6
   - right to impartial jury
   - peremptory challege, D must show:
   - - facts or circumstances that raise inference exclusion based on race or gender
   - - prosecutor must provide race-neutral explanation for strike
   - - judge weighs prosecutor’s sincerity
6. Right to jury giving evidence reasonable consideration (due process)
   - D in prison clothing
   - D visibly shackled, unless justified
   - jury exposed to influence favorable to prosecution
7. Right to counsel (6A)
   - right in misdemeanor case only if imprisonment actually imposed
   - D has no right to consult lawyer while testifying
   - waivor at trial
   - - knowing and intelligent
   - - D competent
   - effective assistance of counsel presumed
   - - deficient performance by counsel
   - - but for deficiency, result of proceeding would be different
   - - automatic reversal if lawyer advises court of conflict of interest and court refuses to appoint separate lawyer.
8. Right to confront witnesses (6A)
   - prior testimony of unavailable witness only if D had opportunity to cross-examine at time statement was made
   - forfeiture of right if D’s wrongdoing intended to keep witness from testifying
   - co-D’s confession implicating the other D violates 6A confrontation clause, unless:
   - - all portions referring to other D can be eliminated
   - - confessing D takes the stand and cross-examination
   - - non-testifying D’s confession used to rebut claim of coercive confession

Question 11

Guilty pleas and plea bargaining

Answer 11

Taking the plea

1. judge determines if plea is voluntary and intelligent
2. done on the record
3. D must know and understand:
   - nature of the charge and crucial elements of crime
   - maximum possible penalty and manditory minimum
   - has right not to plead guilty and is waiving right to trial
4. remedy - withdraw plea and plead anew

Question 12

Double jeopardy

Answer 12

1. no retrial of same ciminal offense
   - not same offense if each crime requires proof of additional element
2. once jury has been empanelled and sworn in (jury trial), or first witness sworn (bench trial)
3. exceptions:
   - hung jury
   - manifest necessity to abort original trial
   - D successfully appealed conviction for reasons other than insufficient evidence to support conviction; can only be tried for same or lesser offense
   - breach of plea bargain
   - if new evidence, greater offense trial permitted
   - separate sovereigns

Question 13

Privilege against compelled self-incrimination

Answer 13

1. only applies to natural persons (not corporations)
2. method for invoking privilege
   - criminal defendant can’t take stand
   - witness must listen to question and specifically invoke

Question 14

8th Amendment

Answer 14

Cruel and unusual punishment

1. penalty disproportionate to seriousness
2. in death penalty cases, judge/jury must be permitted to consider all mitigating evidence

Execessive bail

1. bail cannot be grossly disproportionate to offense
2. cannot be used as punishment, only to ensure D’s presence at trial or community’s safety