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Crim Pro

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lhanvt13's version from 2016-07-23 18:55

Section 1

Question Answer
4th AmendmentSearch and Seizure; Arrest and Detention
5th AmendmentSelf-Incrimination; Double Jeopardy
6th AmendmentRight to Counsel; Right to Speedy Trial; Right to Jury Amendment; Right to Confront Witnesses
8th AmendmentDeath Penalty; Punishment Proportionate to Offense
14th AmendmentDue Process
memorize

Section 2

Question Answer
Valid ArrestArrest must be based on 1) probable cause, 2) a valid warrant if home arrest
memorize

Section 3

Question Answer
Exclusionary RuleAny product of 1) an illegal search or 2) coerced statement cannot be admitted in a criminal trial
Scope of Exclusionary RuleDoes not apply to: 1) grand jury proceedings, 2) civil proceedings, 3) parole revocation proceedings, 4) impeachment purposes
Station House Detentionrequires Probable cause to compel D to station for 1) Finger printing or 2) interrogation
Grand Jury Proceedings (& Exception to illegal seizure of evidence)Grand Jury witnesses may be compelled to testify based on illegally seized evidence. The proceedings of grant juries are secret. The defendant has no right to appear and no right to send witnesses.Witness doesn't have to be that they may be a possible defendant. No right to counsel yet.
Fruit of the Poisonous Tree doctrineAlso excludes evidence obtained or derived from police illegality. Exceptions: 1) Independent source for the evidence, 2) police would have inevitably discovered that evidence anyway, or 3) intervening act of free will on part of the defendant.
Harmless Error DoctrineConviction will not necessarily be overturned if improperly evidence obtained and admitted at trial would not change the outcome of the case
Search and Seizure Analysis Steps1) Government conduct, 2) reasonable expectation of privacy, 3) valid search warrant, 4) exceptions to invalid search warrant, 5) exceptions to warrant requirement
Valid WarrantProbable Cause and Particularity
Probable CauseFair probability that contraband or evidence of crime will be found in the area searched; Can be based on informant information
ParticularityPlace and things to be seized
Informant informationsufficiency is determined by the totality of the circumstances; 1) credibility, and 2) basis of knowledge
Exception to Knock and Announce Requirement for Executing a Warrantif knocking and announcing would be dangerous, futile, or inhibit the investigation (Destruction of Evidence)
Exceptions to Invalid Warrantan officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements
Exceptions to Good Faith Reliance for Invalid Warrants1) affidavit underlying the warrant is so lacking in probable 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, or 4) the magistrate is biased
exceptions to a warrant requirement1) Search Incident to Arrest, 2) Community Caretaker Exception, 3) Automobile Exception, 4) Plain View, 5) Consent, 6) Evanescent Evidence, 7) Hot Pursuit, 8) Special Needs, 9) Unreliable or Uninvited ear exceptions to eavesdropping, 10) Terry Stop
Search Incident to an Arrest Exception1) arrest must be lawful, 2) search must be contemporaneous in time and place. Scope: Police can search the person and the areas within the person's wingspan
Community Caretaker ExceptionWarrantless search is valid if an emergency threatens the health or safety of an individual or police
Automobile ExceptionRequires Probable Cause; Scope: 1) the entire car, 2) any package, luggage or other container of driver or passanger which could reasonably contain the item they had probable cause to look for
Plain View Exception1) legal presence, 2) immediately apparent the item is contraband or a fruit of a crime
ConsentMust be Voluntary; If two or more people have a right to use a piece of property, either can consent. If one person does not consent, then that nonconsent controls. If the nonconsenting party is removed from premises for reasons unrelated to the refusal, the police may search upon consent of the other occupant
Terry Stop DefinitionThe police have the authority to briefly detain a person even if they lack probable cause
Terry Stop Elements 1) Reasonable suspicion, 2) supported by articulable facts of criminal activity
Terry Stop Scopepat down of the outer clothing and body to check for weapons or contraband.
Evanescent Evidence DefinitionEvanescent evidence is evidence that might disappear quickly if the police had to get a warrant.
Hot PursuitHot pursuit of a fleeing victim is another exception. The rule of thumb is within 15 minutes. Anything they see in plain view are admissible
Special Need Searches 1) Children participating in extracurricular activities may be drug tested; 2) search of public school children affects permissible to investigate violations of school rules.
Warrentless Search of public school children for investigating violations of school rules is valid ifPMS - 1) Procedure is reasonably related to the objectives of the search, 2) Moderate chance of finding the evidence, and 3) Search is not excessively intrusive
Wiretapping and EavesdroppingBoth require a warrant
Exception to Eavesdroppingunless 1) unreliable: every person assumed the risk that they are speaking with an undercover informant; 2) or uninvited ear: Speaker has no 4th amendment right if she makes no attempt to keep the conversation private
memorize

Section 4

Question Answer
Miranda WarningsMiranda Warnings are triggered for custodial interrogations
Custody Definitiona reasonable person would not feel free to leave. In making this determination, a court will determine whether the situation presents the same inherently coercive pressure as a stationhouse questioning.
Examples of CustodialCan arise in a police car, jail, your own home, or even a hospital bed. Probation Interviews and Routine Traffic stops are not custodial.
InterrogationAny conduct the police knew or should have known that they ight illicit an incriminating response from the suspect. [Discuss which question triggered the Miranda requirement]
Spontaneous StatementMiranda Warning not required for admissibility
Miranda ExceptionVoluntary and knowing waiver; wait a significant amount of time, re-reading the defendant his rights, or questions are limited to a crime that was not the subject of the earlier questioning
Assertion of Right to Remain SilentMust be explicit, Unambiguous, and Unequivocal
Assertion of Right to Counselmust be unambiguous - stops all questioning unless waives right to counsel or is released and 14 days have passed
The ways 5th Amendment Rights may be eliminated1) Grant of Immunity, 2) No possible incrimination (SoL), or 3) Waiver
Double JeopardyBars retrial for same offense or lesser included offense by the same sovereign; Double Jeopardy defense doesn't apply to crimes that require proof of an additional element
Double Jeopardy Attaches when1) Jury trial - when jury is sworn in, 2) bench trial - when first witness is sworn
When does double jeopardy not applycivil proceedings, hung jury, manifest necessity aborts first trial, successful appeal of conviction unless for insufficient evidence for guilt
memorize

Section 5

Question Answer
Right to CounselThe Defendant has a right to counsel in all critical stages of prosecution after judicial proceedings have begun; This includes post-charge lineups and Show-ups
No right to counsel1) show victim or witness photographs, 2) taking blood samples, 3) taking handwriting samples, 4) pre-charge lineups, 5) brief recess during testimony, 6) Parole and probation revocation proceedings, 7) Finger printing
Pretrial IdentificationCertain pretrial identifications are so unnecessarily suggestive and so substantially likely to produce a misidentification that they deny due process of law.
Remedy for Unconstitutional Pretrial IdentificationExclude the in-court identification unless the state can show that it had an adequate independent source for that in-court identification.
Adequate Independent Source for In-Court Identificationvictim or witness had an adequate opportunity to observe the D at the time of the crime
Right to Self-RepresentationWaiver of trial counsel must be 1) Knowing,2) Intelligent, and 3) D must be competent to proceed pro-se
Right to Speedy Trial[huh]
Right to Jury TrialRight to jury trial if maximum authorized sentence is > 6 months; Minimum 6 jurors required; Right to fair cross-section of community for jury pool - but not for final jury panel to reflect the fair cross-section of community; Preemptory Challenges
Preemptory Challenges #limited to 3 for without cause, and unlimited for cause; Cannot exclude based on race or gender
Right to Confront Witnesses exceptionRight to confront witnesses does not violate the 6th amendment if 1) preventing such confrontation serves an important public purpose, and 2) Reliability of witness testimony is otherwise assured; Disruptive defendants may be removed from the courtroom
Right to Confront Witnesses - co-defendant confessionWhen two defendants are tried together and one confession implicates the other, the statement cannot be used unless 1) all references to D are redacted, 2) the confessing D is cross-examined, or 3) the non-testifying co-D's confession is being used to rebut the D's claim that the D's confession was obtained coercively
memorize

Section 6

Question Answer
BailBail issues are immediately appealable
Guilty PleasThe court will not disturb guilty pleas after sentencing. If the defendant pleas guilty, the judge must specifically address the defendant on the record about the following: 1) the nature of the charge, 2) the maximum authorized penalty and any mandatory minimum penalty, 3) that the D has a right to not plead guilty and demand a trial, and 4) all of this is on record
Withdrawal of guilty plea1) involuntary, 2) lack of jurisdiction, 3) ineffective assistance by counsel, or 4) failure by prosecutor to keep an agreed upon plea bargain
Death PenaltyDeath penalty statutes must give D chance to present mitigating facts and circumstances and the State may not by statute limit the mitigating factors. There cannot be automatic category for imposition of the death penalty. Only a jury, not a judge, may determined aggravating factors justifying imposition of the death penalty.
memorize

Section 7

Question Answer
When is 5th Amendment Privilege available5th Amendment privilege against self-incrimination can be asserted by anyone in any type of case if, 1) under oath, 2) asked to respond in a way that might incriminate himself.
How to assert 5th Amendment Privilegethe first time the question is asked, whether in a civil or criminal proceeding. Otherwise, it is waived for all subsequent criminal prosecutions.
5th Amendment Privilege applies to whatCompelled Testimonies
Silence or Failure to Testifycan't comment on the D's failure to testify or choice to remain silent after Miranda warnings
Silence before Miranda Rightsif a suspect chooses to remain silent before given Miranda rights, the silence can be used against him in court
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