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Karteikarten

Criminal Procedure

Rebecca Wright Englisch 55 Karten

Karten in diesem Stapel (55)

  1. 1EXCLUSIONARY RULESomeone who has been a victim of an illegal search or coerced confession can have the product excluded from criminal prosecution.
    (Subject to harmless error test for convictions, would have resulted despite the improper evidence)
  2. 2LIMITATION ON EXCLUSION1. Grand jury
    2. Civil proceedings
    3. Parole revocation
    4. Impeachment of D's trial testimony
    5. Knock and Announce
  3. 3FRUIT OF THE POISONOUS TREENot only illegal seized evidence, but will exclude all evidence obtained from police illegality.
    a. Not Miranda violations unless in bad faith
    3 I's of breaking the chain:
    Independent source
    Inevitable discovery
    Intervening free will of the D
  4. 4ARRESTS AND DETENTIONS1. Arrest must be based on probable cause
    2. Warrant not required to arrest in public.
    3. Warrant required to arrest in home/non-emergency
    4. Probable cause to arrest for station house detention for fingerprinting or interrogation.
  5. 5TERRY STOPReasonable suspicion supported by articulable facts. (Hunch is never enough).
    Totality of the circumstances to determine reasonable suspicion.
    Terry frisk is a pat down of the outer clothing and body to check for weapons.
  6. 6AUTOMOBILE STOPReasonable suspicion that the law was violated.
    Except: Check pointsL
    - Neutrally applied
    - Active danger (DUI/border crossings, not drugs)
  7. 7DOGSSniff not a search if does not extend the stop beyond the normal time.
    Dog alert can provide probable cause for a search.
  8. 8SEARCH AND SEIZURE GOV. CONDUCTa. Publicly paid police
    b. Private individual acting at the direction of police
    c. Privately paid police deputized with the power to arrest you.
  9. 9SEARCH AND SEIZURE REASONABLE EXPECTATION OF PRIVACY/STANDING(1) Own the premises
    (2) Live on the premises
    (3) Overnight guests
    (4) If you own the property seized you have standing only if you have a reasonable expectation of privacy in the item or area searched.
  10. 10CATEGORIES OF NO STANDINGThings held out to the public
    1. Voice
    2. Handwriting
    3. Paint outside your car
    4. Account records at a bank
    5. Location of your car (except GPS installation is a search)
    6. Seen across open fields
    7. Seen flying over public airspace
    8. Odors from luggage
    9. Garbage set out on the curb for collection
  11. 11SEARCH WARRANT REQUIREMENTS1. Probable Cause (Fair probability that contraband or evidence of crime will be found in the area searched)
    2. Particularity (Place to be searched and things to be seized)
    Validity on totality of the circumstances
  12. 12NO KNOCK REQUIREDExecuting a search warrant under exigent circumstances/destruction of evidence.
  13. 13SAVING ON INVALID WARRANTOfficer's good faith reliance overcomes defects with probable cause.
    Except:
    1. So lacking in probable cause, no reasonable officer
    2. Lacking in particularity, no reasonable officer
    3. Officer lied or misled
    4. Magistrate is biased
  14. 14SEARCH INCIDENT TO ARREST(1) Lawful arrest
    (2) Arrest and search are contemporaneous
    (3) Person and their wingspan
    (4) Automobiles:
    a. Arrestee unsecured
    or
    b. Reasonable belief of evidence of offense for arrest
    c. Community caretaker (health and safety of the public)
  15. 15AUTOMOBILE EXCEPTIONProbable cause. (Can arise after the car is stopped, but must exist before the search.)
    Can search the entire car.
    Open any package that could reasonably contain the item, owned by passenger or driver.
  16. 16EVANESCENT EVIDENCEMight disappear quickly, don't need a warrant.
    (Except Blood sample for DUI is not a per se exigency)
  17. 17HOT PURSUITPolice need to be within 15 minutes of the fleeing felon.
  18. 18PUBLIC SCHOOL SEARCHES(a) Engaged in extracurricular activities, including dances can be drug tested
    (b) Warrantless searches of effects (purses/backpacks) to investigate violations of school rules.
    (c) Reasonable:
    i. Offers a moderate chance of finding evidence of wrongdoing.
    ii. Measures are reasonably related to the objectives of the search
    iii. Search is not excessively intrusive
  19. 19WIRETAPPING AND EAVESDROPPINGRequires a warrant.
    Exceptions:
    Unreliable ears
    Uninvited ear (no attempt to keep secret)
  20. 20MIRANDA WARNINGa. Right to remain silent
    b. Anything you say can be used against you in court
    c. Right to an attorney
    d. If you can't afford an attorney, one will be appointed
  21. 21IN CUSTODY FOR MIRANADA PURPOSES(1) A reasonable person would not feel free to leave
    (2) Inherently coercive pressures similar to station house questioning
    Not custodial:
    Probation interviews and traffic stops
  22. 22INTERROGATIONAny conduct where the police knew or should have known that they might illicit an incriminating response. (On exam, identify where interrogation arose.)
  23. 23MIRANDA WAIVERKnowing and voluntary.
    Totality of the circumstances test.
  24. 24RIGHT TO REMAIN SILENT: REINTIATE QUESTIONING(i) Wait a significant amount of time,
    (ii) remirandized,
    (iii) not the subject of earlier questioning
  25. 25INVOKING RIGHT TO COUNSEL: REINIATING QUESTIONINGMust cease all questions until
    (i) Given an attorney
    (ii) Initiates further questioning
    But
    If a break in "custody" the police can ask to waive Miranda rights after 14 days
  26. 26Fifth Amendment Right to CounselWhen invoking Miranda rights and requests an attorney.
    Not offense specific, applies to the entire process of custodial interrogation.
  27. 27Sixth Amendment Right to CounselOffense Specific, counsel only needs to be present if asked about the specific case counsel was retained for.
  28. 28PRE-TRIAL IDENTIFICATION COUNSEL NEEDS TO BE PRESENTPost-charge Lineups and show-ups (one on one)
  29. 29PRETRIAL IDENTIFICATION COUNSEL DOESN'T NEED TO BE PRESENT SIXTH AMENDMENT RIGHT(1) Police show victim/witness photos
    (2) Taking blood samples
    (3) Pre-charge lineups
    (4) Brief recess during D's testimony at trial
    (5) Parole and probation revocation proceedings.
    (6) Taking fingerprints.
  30. 30ID DENIAL OF DUE PROCESSSo unnecessarily suggestive and so substantially likely to produce a misidentification.
    Remedy for uncon pre-trial id:
    Exclude in court id, unless independent source (usually victim had adequate opportunity to observe the D at the time of the crime)
  31. 31PROSECUTORIAL DUTY TO DISCLOSE EXCULPATORY EVIDENCEFailure to do so, willful or inadvertent, violates due process + may be grounds for reversal if:
    1. Evidence is favorable to D
    2. Reasonable probability that the result would have been different
  32. 32WHAT MAKES A JUDGE BIASED1. Financial interest
    2. Actual malice against the D
  33. 33STANDARD FOR JURY INSTRUCTIONSupported by some evidence.
  34. 34CONSTITUTIONAL RIGHT TO A JURY TRIALD is tried for an offense for which the maximum authorized sentence exceeds 6 months.
  35. 35NUMBER OF JURORS REQUIRED AND UNANIMITYMinimum 6: unanimous
    No right to 12 juror unanimous (10-2 or 9-3 ok)
  36. 36PEREMPTORY JURY CHALLENGEFor any reason (except race or gender).
  37. 37INEFFECTIVE ASSISTANCE OF COUNSELDeficient performance + but for the deficiency, reasonable probability the result would have been different. (Must state particular errors.)
  38. 38GUILTY PLEA: JUDGE MUST ADDRESS1. The nature of the charge
    2. Maximum authorized penalty and mandatory minimum
    3. Right to plead not guilty and demand a trial
    4. All on the record
  39. 39DOUBLE JEOPARDYAttached when the jury is sworn or in a bench trial, when the first witness is sworn.
    Exceptions:
    Hung Jury
    Mistrial for manifest necessity
  40. 40RE-TRIAL DOUBLE JEOPARDYAfter a successful appeal, cannot be retried for a more serious offense than first conviction.
    (Except breach of agreed upon plea bargain, original charges can be reinstated)
    Different sovereign ok.
  41. 41DOUBLE JEOPARDY DIFFERENT OFFENSESEach crime requires proof of an additional element.
    (Additionally, being put in jeopardy for a greater offense bars retrial for any lesser included offense.)
  42. 42FIFTH AMENDMENT PRIVILEGE AGAINST TESTIFYINGCan be asserted by anyone in any kind of case.
    1. Must assert the privilege the first time the question is asked or waived privilege for all subsequent criminal prosecutions.
    2. Must be claimed in civil proceedings to prevent from being waived in later criminal prosecutions.
  43. 435th Amendment Prosecutorial ConductCannot comment of D's failure to testify or a D choosing to remain silent after Miranda warnings. (But can comment if counsel assert D was not allowed to explain their story.)
    Harmless error rule.
  44. 44ELIMINATE 5TH AMENDMENT PRIVILEGE1. Grant of immunity
    2. No possibility of incrimination (SOF has run)
    3. Waiver (D who takes the witness stand waives 5th amendment privilege as to cross-exam)
  45. 45SIXTH AMENDMENT RIGHT TO CONFRONT A WITNESS WHO IS A CO-DEFENDENTWhen one has given a confession that implicates the other, can't use the statement unless
    (i) all portions referring to the other D can be eliminated
    (ii) confessing D takes the stand
    (iii) Being used to rebut claim that D's confession was obtained coercively.
  46. 46VOLUNTARY CONSENTKnowledge of the right to withhold consent is not a prerequisite to establishing voluntary consent.
  47. 47FREEDOM OF MOVEMENT TESTTo determine if someone is in custody. Applies to determine whether the person's freedom of action is limited in a significant way. (Next consider coercive pressures.)
  48. 48SIXTH AMENDMENT RIGHT TO COUNSELD has a right to assistance of counsel, applies at all critical stages of prosecution after formal proceedings have begun. Right is violated when the police deliberately elicit an incriminating statement from the D w/o first obtaining a waiver of the D's right to have counsel present.
  49. 49MIRANDA VIOLATIONS IMPEACHMENTA confession obtained in violation of Miranda warnings, but otherwise voluntary is admissible to impeach.
  50. 50ACCOMPLICE LIABILITY: ACCESSORY AFTER THE FACT(i) Receives, relieves, comforts, or assists another
    (ii) knowing that he has committed a felony
    (iii) to help the felon escape arrest, trial, or conviction
    (Crime is a felony and completed at the time of the aid)
  51. 51FACTORS FOR INDEPENDENT SOURCE OF IDENTIFICATIONOpportunity to observe the D at the time of the crime, the ease of witness's id, and the existence of prior misidentifications.
  52. 52REQUIREMENTS FOR POLICE CHECKPOINTS(i) Stop cars on the basis of some neutral, articulable standard
    (ii) be designed to serve purposes closely related to a particular problem pertaining to autos and their mobility.
    (Not to detect evidence of ordinary criminal wrongdoing)
  53. 53BALANCE TEST FOR EXCLUSION OF TAINTED EVIDENCEBalance the rule's purpose (deterrence of police misconduct) against its costs (exclusion of probative evidence). Exclusion is not automatic:
    - Culpability of the potential and the potential exclusion to deter wrongful police conduct.
  54. 54STANDARD TO ACCEPT A GUILTY PLEAJudge must determine that the plea is voluntary and intelligent.
    - Remedy is withdrawl of the guilty plea and new pleading
  55. 55PLAIN VIEW(i) are legitimately on the premises
    (ii) discover evidence of a crime
    (iii) see such evidence in plain view
    (iv) have probable cause t

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Beschreibung
Karteikarten am Criminal Procedure, erstellt von Rebecca Wright am 04/07/2016.
Erstellt von
Rebecca Wright · Jul 2016
Aktualisiert
6 Apr 2018
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