Term
| What is the standard for standing? |
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Definition
| Whether the defendant has a reasonable expectation of privacy |
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Term
| What standard of review is used for suppression issues raised on appeal? |
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Definition
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Term
| Can a state constitution have more stringent fourth amendment rights? |
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Definition
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Term
| What is the seizure test? |
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Definition
| Whether a reasonable person would feel free to leave |
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Term
| Can an officer's negligent conduct result in a seizure? |
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Definition
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Term
| When does an arrest warrant authorize entry into the arrestee's home? |
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Definition
| When police have probable cause to believe the arrestee is present. |
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Term
| When can police arrest someone in public? |
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Definition
Felony-Probable cause
Misdemeanor-committed in the presence |
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Term
| What are the curtilage factors? |
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Definition
1. The proximity of the area to the home
2. Whether the area is included within an enclosure surrounding the home
3. The nature of the uses to which the area is put
4. The steps taken by the resident to protect the area from observation of a passerby. |
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Term
| Does a person have an REP as an overnight guest in someone elses home? |
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Definition
| Yes, to the areas which he has permission to be. |
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Term
| Does a person have an REP when he transfers his papers and effects to a third party? |
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Definition
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Term
| When is a checkpoint constitutional |
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Definition
| If the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles. (DUI) |
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Term
| Is there an REP in handwriting or voice samples?? |
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Definition
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Term
| When is a technological device a search? |
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Definition
1. Physical intrusion on private property to install a technological device might.
2. A sense-enhancing technology that is not in use by the general public. |
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Term
| When can a person successfully attack a facially valid warrant? |
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Definition
1. The affidavit contained false statements that were made by the affiant knowingly, intentionally, or with reckless disregard for the truth.
2. The false statements were necessary to the finding of probable cause. |
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Term
| What is considered when determining probable cause/reasonable suspicion? |
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Definition
| THe totality of the circumstances. |
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Term
| What must a warrant describe? |
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Definition
| With particularity, the place to be searched and objects to be seized. |
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Term
| Does fruit of the poisonous tree apply to knock and announce invalidate the arrest? Suppress subsequent evidence? |
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Definition
Invalidate the arrest-Yes
Fruit of the poisonous tree-No |
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Term
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Definition
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Term
| When is it appropriate to search a container incident to arrest that is within the wingspan of the arrestee? |
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Definition
| When the containers are large enough to conceal a weapon or evidence of the crime. |
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Term
| What is the parameter for a warrantless vehicle search incident to arrest? |
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Definition
| (i) that the arrestee is within reaching distance of the passenger compartment at the time of the search and, as a result, may pose an actual and continuing threat to the officer’s safety or a need to preserve evidence from being tampered with by the arrestee or (ii) that it is reasonable that evidence of the offense of arrest might be found in the vehicle. |
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Term
| When can a legally impounded vehicle be searched? |
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Definition
| Pursuant to a lawful inventory search. |
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Term
| Does the exigent circumstances rule apply when police create the exigency? |
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Definition
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Term
| For the exigency of hot pursuit, what type of underlying crime must the assailant commit in order to justify warrantless entry? |
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Definition
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Term
| WHat types of exigencies may be presented to justify warrantless entry? |
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Definition
1. Hot pursuit of a fleeing felon
2. Public/officer safety issues
3. Imminent destruction of evidence. |
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Term
| How do you establish reasonable suspicion? |
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Definition
| Based on the TOC a reasonable person would believe tht criminal activity is afoot. |
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Term
| When may police conduct a "terry" stop of a car? |
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Definition
i) The police possess a reasonable belief that the suspect is dangerous and may gain immediate control of weapons; and
ii) The search of the passenger compartment is “limited to those areas in which a weapon may be placed or hidden.” |
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Term
| WHen can police seize an item on private property without a warrant? |
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Definition
1. If the officer was on the premises with a lawful purpose
2. The item's incriminating nature was facially apparent. |
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Term
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Definition
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Term
| When can consent of a third party to search a defendant's belongings be valid? |
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Definition
1. When an agency relationship exists between the 3rd party
AND
2. When defendant otherwise gives rights to such property and therefore assumes the risk that the 3rd party would allow it to be search. |
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Term
| If one owner of jointly controlled property refuses consent, can police search it? |
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Definition
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Term
| Can a parent consent to the search of an adult child's room? |
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Definition
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Term
| Is a school search valid if it's initiated at the request of police? |
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Definition
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Term
| Name the types of administrative searaches |
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Definition
1. Airplane boarding area searches
2. Searches of highly regulated industries
3. Wiretaps for national security issues
4. School searches
5. Special needs searches
6. Inventory searches
7. Border searches
8. Vehicle checkpoints
9. Factory searcheas
10. Searches of government employees' file cabinets/desks. |
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Term
| To obtain a warrant for a wiretap, the warrant must: |
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Definition
1. Be limited in duration
2. Probable cause
3. Name the person/persons to be wiretapped
4. Describe with particularity the conversations to be heard
5. Include a terminating provision. |
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Term
| What are the exceptions to the exclusionary rule? |
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Definition
1. Inevitable discovery
2. Independent source
3. Attentuation of the taint
4. Good faith on exercising a warrant.
5. Isolated police negligence
6. Knock and announce
7. In-court identifications |
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Term
| Is a denial to the right to counsel ever harmless error? |
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Definition
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Term
| Who can assert the privilege against self-incrimination? |
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Definition
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Term
| What type of evidence does the privilege against self-incrimination protect against? |
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Definition
| Testimonial evidence. Physical evidence does not count like urine, blood samples. |
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Term
| What type of disclosure does not fall under the 5th amendment privilege against self-incrimination? |
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Definition
| The privilege protects only compulsory disclosure, meaning voluntarily prepared paperwork, paperwork required by law. |
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Term
| Can the government compel production of a diary? |
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Definition
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Term
| Does the privilege against self-incrimination apply to civil proceedings? |
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Definition
| Yes, if the answers provide some reasonable possibility of incriminating the defendant in future criminal proceedings. |
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Term
| If a person is served with a subpoena for documents that might cause a self-incrimination issue, can the person refuse to turn them over? |
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Definition
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Term
| Can the prosecution comment to the jury on the defendant's refusal take the stand, or speak with police in accordance with Miranda? |
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Definition
| No, but it's subject to harmless error on appeal. |
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Term
| Once a defendant takes the stand, can he invoke the privilege in response to prosecution's questioning? |
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Definition
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Term
| Does police trickery render a confession involuntary? |
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Definition
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Term
| If the right to 5th Amendment counsel is invoked, may police reinitiate questioning? |
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Definition
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Term
| What are the exceptions to Miranda? |
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Definition
1. Public safety
2. Routine booking questions
3. Undercover police operations. |
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Term
| Can a statement taken in violation of miranda be used for impeachment purposes? |
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Definition
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Term
| Does fruit of the poisonous tree apply to miranda? |
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Definition
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Term
| What is the difference between transactional and use immunity? |
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Definition
Transactional=Blanket or total immunity from future prosecution for crimes related to her testimony.
Use/derivative use immunity= Can't use the testimony or evidence derived from the testimony against defendant. |
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Term
| When does the 6th amendment right to counsel attach and when is it applicable? |
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Definition
| it attaches when the state initiates prosecution and applies to all critical stages of formal prosecution including: lineups and ids, interrogations, arraignment, appeals as a matter of right. |
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Term
| What does it mean when it's said that the 6th amendment right to counsel is offense specific? |
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Definition
| It means that you don't have the right to counsel for questioning on a crime that is not a part of the charged criminal transaction. |
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Term
| What is the remedy for a 6th amendment violation during trial? At an ancillary hearing/lineup? |
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Definition
| Automatic reversal at trial. Subject to harmless error otherwise |
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Term
| Is the 6th amendment violated if police place an informant in a cell with an accused? |
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Definition
| Only if the informant elicits incriminating information, not for just listening. |
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Term
| Does the fruit of the poisonous tree doctrine apply to 6th amendment violations? |
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Definition
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Term
| Can statements obtained in violation of the 6th amendment be admitted for impeachment? |
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Definition
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Term
| To reverse a conviction on ineffective assistance of counsel grounds, the claimant has the burden to show: |
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Definition
1. Counsel's representation fell below an objective standard of reasonableness.
2. Counsel's deficient performance prejudiced the defendant resulting in an unreliable or fundamentally unfair outcome in the proceeding. |
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Term
| What must a defendant show in order to overturn a conviction based on a conflict of interest? |
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Definition
1. Actual conflict of interest
2. The conflict adversely affected the attorney's performance. |
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Term
| If a motion is brought to relieve a conflict, what must a judge do? |
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Definition
Either
1. Appoint different counsel
Or
2. Hold a hearing to determine whether appointment is warranted under the circumstances. |
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Term
| If a formal plea offer has been made, what must the defense attorney do? |
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Definition
| Communicate accurately and in a timely manner. To show prejudice becausse the offer has lapsed or has been rejected due to bad communication, D must show a reasonable probability that he would have accepted the offer. |
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Term
| What are the two types of eyewitness ID procedures? |
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Definition
| Lineups and photo arrays. |
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Term
| Does the right to counsel apply to pre-indictment eyewitness ID? |
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Definition
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Term
| What is the test for whether a lineup should be suppressed? |
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Definition
1. The defendant must prove that the identification procedure was impermissibly suggestive.
2. The court determines whether the ID was nonetheless reliable using the following factors:
1. The witness' opportunity to view the defendant
2. The witness' degree of attention at the time of the crime
3. The accuracy of the witness' description
4. The level of certainty at the time of the ID
5. The length of time between the crime and the ID. |
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Term
| Is there a right to counsel at a post-indictment photo spread? |
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Definition
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Term
| What are the types of pre-charging hearings which must be held? |
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Definition
Either
1. Probable cause hearing
2. Arraignment
3. Detention hearing |
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Term
| What is the standard for determining whether a defendant is competent to stand trial? |
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Definition
| Whether the defendant comprehends the nature of the proceedings against him and can consult with a lawyer with a reasonable degree of rational understanding. |
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Term
| When are forced anti-psychotics appropriate? |
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Definition
1. When the treatment should not cause serious side effects that would effect the fairness of the trial.
2. The treatment is necessary and there is no less intrusive method.
And
3. Treatment is medically appropriate. |
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Term
| What does a grand jury do? |
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Definition
| Decides whether there is probable cause to charge a particular defendant. |
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Term
| Does a defendant have a right to present or confront witnesses or introduce evidence at a grand jury proceeding? |
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Definition
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Term
| Does the double jeopardy clause bar further proceedings if there is a refusal to indict? |
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Definition
| No because double jeopardy doesn't attach until trial. |
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Term
| Does a prosecutor have an obligation to show exculpatory evidence at a grand jury indictment? |
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Definition
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Term
| Does a grand jury witness have a right to counsel in the courtroom? |
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Definition
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Term
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Definition
| Duty to disclose evidence favorable to the defendant if it would negate guilt, culpability, or punishment. |
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Term
| When does a criminal defendant have a constitutional right to a jury trial? |
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Definition
| When accused of a "serious offense, one in which the authorized sentence is more than six months. |
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Term
| Does a defendant have a right to a bench trial? |
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Definition
| He may request one, but he has no absolute right. |
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Term
| What is the minimum amount of jurors constitutionally permissible? |
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Definition
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Term
| What racial challenges may a criminal defendant bring? |
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Definition
The jury pool was not a representative cross-section of the community.
2. Racially descriminatory use of peremptorys. |
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Term
| How is a prima facie case for lack of a representative cross-section of the community shown? |
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Definition
1. The group excluded was a distinctive group in the community
2. The group was not fairly represented in the venire
3. The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process. |
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Term
| How does a state rebut claims of racial discrimination in jury selection? |
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Definition
| By showing the absence of discriminatory intent if a prima facie case has been made. |
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Term
| What types of discriminatory uses of peremptories violate the equall protection clause? |
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Definition
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Term
| How does the court determine whether a party used race-based peremptories? |
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Definition
1. The moving party establishes a prima facie case of discrimination
2. The party who exercised the challenge provides a race-neutral explanation for the strike
3. The moving party carries the burden of proving that the other party's reason was pretextual |
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Term
| What must happen before the judge implements a sentencing enhancement? |
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Definition
| The enhancement must be found by the jury |
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Term
| What must a defendant understand to enter into a plea agreement? |
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Definition
1. The nature of the charges and their essential elements.
2. The consequences of the plea
3. The rights the defendant is waiving. |
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Term
| What must underly all plea agrements |
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Definition
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Term
| Does a threat to bring more serious charges establish vindictive prosecution? |
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Definition
| Not when the prosecution has probable cause to believe the defendant committed those crimes. |
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Term
| When does the time start running on a speedy trial motion? |
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Definition
| Either at the time of arrest or formal charge, whichever comes first. |
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Term
| What are the speedy trial factors? |
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Definition
Length of the delay
Reason for the delay
Defendant's assertion of his speedy trial right
Prejudice to the defendant |
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Term
| What must a judge be to give a defendant a fair trial? |
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Definition
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Term
| What are examples of prosecutorial misconduct? |
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Definition
No use of false testimony
No suppression of favorable evidence to the defense.
1. Making material misstatements of law/fact
2. Elicit information from the defendant outside presence of counsel.
3. Express opinions about the defendant's guilt or innocence
4. Make unfair/improper remarks about the defendant, his counsel,or witnesses
5. Comment on the defendant's failure to testify at trial
6. Make improper remarks to the jury to inflame their passions to convict for an improper reason. |
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Term
| Is the admission of a non-testifying co-defendant's confession in a joint trial permissible? |
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Definition
| No, even when it merely corroborates the defenndant's confession. Harmless error applies on appeal |
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Term
| Can the judge ever enter a directed verdict for the prosecution? |
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Definition
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Term
| What is the only thing that would enhance sentencing that does not need to be found beyond a reasonable doubt by a jury? |
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Definition
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Term
| What type of statutory scheme is mandated for capital punishment? |
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Definition
1. Clear and objective standards
2. Specific and detailed guidance
3. Opportunity for rational review of the process. |
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Term
| The death sentence is inappropriate where: |
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Definition
1. non-homicide crimes
2. Insane defendant
3. Mentally retarded defendant
5. Under 18 |
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Term
| When does double jeopardy kick in? |
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Definition
1 Second prosecution for same offense after acquittal
2. Second prosecution for same offense after conviction
3. Multiple punishments for same offense |
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Term
| What is "the same offense" for purposes of double jeopardy? |
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Definition
| Whether each crime must require proof of an element that the other does not in order for each to be considered a separate offense. |
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Term
| When does jeopardy attach in a jury trial? Bench trial? |
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Definition
| When the jury is empaneled and sworn in. In a bench trial, when the first witness is sworn in. |
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Term
| Does the double jeopardy clause prohibit a criminal and civil action based on the same facts? |
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Definition
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Term
| Can the prosecution appeal a not-guilty verdict? |
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Definition
| Not unless authorized by statute. |
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Term
| Can a defendant who was tried for a crime but convicted only of a lesser offense be retried? |
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Definition
| No, not even if the conviction was reversed. |
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