Term
| What are the 8 steps you need to take in addressing a 4th Amendment question? |
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Definition
| 1) Is there government conduct 2) Did the S&S invade an individual's expectation of privacy? 3) Was the search authorized by a valid warrant 4) Does an officer's good faith save the defective search warrant? 5) Was the warrant properly executed by the police? 6) What if there was no search warrant? Is there an exception? 7) Could the prosecution use the evidence of an unconstitutional S&S against the D? 8) Is any of the evidnce Fruit of the Poisonous Tree - if so is any of it admissible? |
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Term
| What are the 8 steps you need to take in addressing a 4th Amendment question? |
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Definition
| 1) Is there government conduct 2) Did the S&S invade an individual's expectation of privacy? 3) Was the search authorized by a valid warrant 4) Does an officer's good faith save the defective search warrant? 5) Was the warrant properly executed by the police? 6) What if there was no search warrant? Is there an exception? 7) Could the prosecution use the evidence of an unconstitutional S&S against the D? 8) Is any of the evidnce Fruit of the Poisonous Tree - if so is any of it admissible? |
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Term
| What type of police actors must abide by 4th Amendment S&S requirements? |
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Definition
| Publicly paid police. Therefore, searches by private security guards cannot be challenged - Note however, that private citizens can be held to constiutional standard if deputized and privately-paid police if deputized |
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Term
| In what locations does the 4th Amendment protect individuals from unreasonable S&S (reasonable expectation of privacy) |
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Definition
| Persons (bodies), Houses, papers, effects |
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Term
| I'm staying in a room at the Holiday Inn - do I have a right to protection from unreasonable S&S? |
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Definition
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Term
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Definition
| The rea of "domestic use" immediately surrounding the area of the home. Like the house itself, this area is protected from unlawful s&s |
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Term
| What is NOT protected from warrantless s&s? |
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Definition
| Patty Had A Glorious Victory Over Her Opponents (see p.2) |
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Term
| What must one have in order to challenge a s&s as unconstitutional? |
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Definition
| Standing (make sure to address in the essay) |
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Term
| Does an overnight guest in my house have an expectation of privacy from a search taking place in my house? |
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Definition
| Yes - therefore, she has standing |
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Term
| My overnight guest is staying at my house to bag drugs for sale. Does he have standing to challenge a search of my house? |
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Definition
| No - an individual using someone else's place solely for business purposes never has standing |
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Term
| Jake and Sue are walking walking down the street when they are stopped by police. Jake puts a bag of dope in Sue's purse. The police ask Sue if they can look inside her purse, over Jake's objection, Sue says OK and the drugs are discovered. Jake is arrested. Since he objected to the search may he challenge the search? |
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Definition
| No Not unless Jake can succesfully argue HE had a reasonable expectation of privacy to Sue's purse |
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Term
| Jake is arrested for possession when the police seized a thermos in which he had been his hiding dope from trunk of his friend's car. Jake believes the search was illegal but if he challenges the manner of the search, it will appear he was in possession. Musthe assume ownership of the evidence to assert standing? |
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Definition
| Yes. Contrary to the past, there is no "automatic standing" in these possessory cases. |
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Term
| If a S&S violated the D's reasonable expectation to priacy, is the s&s then deemed unconstitutional? |
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Definition
| Not really, we have to explore whether there was a valid search warrant, executed properly. |
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Term
| What are the 2 requirements to obtain a facially valid search warrant? |
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Definition
1) Probable cause 2) Particularity as to the place to be searched and the items to be seized.
Per Tommy: Might toss in neutral and detached magistrate |
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Term
| What is the probable cause standard for obtaining a warrant? |
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Definition
| The person seeking the warrant must deminstrate that there is a fair probability that contraband or evidence will be discovered in the area searched. |
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Term
| Hearsay evidence is inadmissible for the purpose of determining PC for a sarch warrant. True or False? |
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Definition
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Term
| Can information from an anonymous informant be used to obtain a search warrant? |
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Definition
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Term
| What is expected in order for a search warrant to be issued based on information from an informant? |
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Definition
| Sufficient corroboration from the police to allow the magistrate to make a common-sense, practical determination that PC exists |
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Term
| Unbeknownst to the police, their search warrant is determined to be held defective. Does this mean that the evidence is excluded? |
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Definition
| The exclusionary rule need not apply when the polcie act in good faith reliance on a defective search warrant. The "good faith" rule will not be permitted if the affidavit was so egregiously lacking in PC, or 2) or the warrant is so egregiously lacking in particularity or 3) the proponent of the warrant lied to or misled the magistrate or 4) the magistrate was biased that is wholly abandoned neutrality |
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Term
| So if the search of one's protected private area was performed pursuant to a valid (or validated) search warrant, is it a proper search? |
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Definition
| Not necessarily, now on must ask if the warrant was properly executed by the police |
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Term
| When determining whether a warrant was properly executed by the police, what 2 questions should you ask? |
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Definition
| 1) Did the officers, ntl, exceed the scope of the warrant? 2) Did the police comply with the "Knock & Announce Rule"? |
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Term
| Under the "Knock & Announce Rule", the police must announce their presence before forcibly entering the premises to be searched. Are there are there any exception to the K&A Rule? |
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Definition
| Yes - they need not announce if they reasonably believe that doing so would be futile, dangerous, or inhibit the investigation. |
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Term
| If the police do not obtain a warrant before the search does it fail to satisfy the 4th Amendment protection? |
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Definition
| No. There are exceptions that permit warrantless searches |
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Term
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Definition
| The 8 exceptions allowing warrantless searches 1) Exigent cirumstances 2) Search incident to an arr3est 3) Consent 4) Automobiles 5) Plain View 6) Inventory searches 7) Special Needs 8) Terry Stop & Frisk |
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Term
| One example of exigent circumstances is evanescent evidence. What is that referring to? |
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Definition
| Evidence that would dissipate or disappear in the time it would take to obtain a warrant |
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Term
| During hot pursuit of a suspect into his (or another's) home evidence of another crime is in apparent plain view. Is that evidence admissible? |
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Definition
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Term
| What must be assured in a search incident to an arrest? |
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Definition
| The arrest was lawful. If the arrest violates the Constitution, then any search incident to that arrest will also be violative |
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Term
| For a search incident to an arrest, what requirements exist with regard to timing and geographical scope? |
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Definition
| The search must be contemporanous (place and time) to that arrest. The area searched must be within the "wingspan" of the suspect (i.e. so he cannot destroy the evidence or reach for weapon |
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Term
| For an automobile search incident to an arrest, what restrictions exist with regard to geographical scope? |
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Definition
| Interior cabin of the car including closed containers - but not the trunk |
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Term
| Can the police search an automobile after the arrestee has been handcuffed and placed in the car? |
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Definition
| OLD STANDARD: Yes, provided he was a recent occupant of the vehicle searched even if he was outside of the car when he was arrested. NEW STANDARD: No - Once the arrestee has been secured, officer may search the vhicle only if she has reason to believe that the vehicle contains evidence related to the offense for which the arrest was made |
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Term
| What is the standard for consent to a warrantless search? |
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Definition
| Consent must be voluntary and intelligent. |
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Term
| Ted is pulled over but not placed uder arrest. Officer Bob tells Ted, it is standard procedure to check out the car and asks "is that OK?" Ted figures he has no option to refuse the search and says OK Does that make the search invalid? |
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Definition
| No, Officer Bob need not tell Ted he has the right to refuse consent to the search |
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Term
| The police arrive at an apartment in response to a report of suspicion of drug dealing. They knock on the door and Consuelo, one of the renters answers. The police explain why they are there and ask Consuelo if they can look around. She consents and they find Vincente's drugs. Was Consuelo's consent valid in searching the aprtment for Vincente's drug evidence? |
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Definition
| Yes, Any person with apparent equal access to use or occupy the premises may consent to search |
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Term
| The police arrive at an apartment in response to a report of suspicion of drug dealing. They knock on the door and Consuelo, a friend of one of the renters answers. The police explain why they are there and, thinking she lives there, they ask Consuelo if they can look around. She consents and they find Vincente's drugs. Was Consuelo's consent valid in searching the apartment for Vincente's drug evidence? |
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Definition
| Yes, although COnsuelo had no authority to consent to the search, if the police reasonably believed she did, ten the search is valid |
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Term
| Contrary to a search incident to an arrest, what entitles the polcie to sarch the entire car (including the trunk?) |
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Definition
| If the police have full probable cause that a vehicle contain contraband or evidence of a crime, they can search the entire vehicle including the trunk and all containers within the vehicle that might contain the object for which they are searching. |
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Term
| What three requirements must be met for police to seize an item in "plain view" |
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Definition
| 1) They must be legitimately on the premises (and in the place where the evidence can be plainly seen) 2) They also have unfettered access to the item itself 3) the criminality/evidentiary of the item must be inherently apparent. |
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Term
| Jack has a motorhome he had never "hooked up" to his site. It's presenty still on the trailer it came in on. WOuld the motor home qualify as an automobile for the purposes of warantless search based on PC? |
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Definition
| Based on thi fact-pattern, probably |
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Term
| When would police conduct an "inventory search"? |
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Definition
| When booking a suspect into jail and when vehicles are impounded |
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Term
| Under what conditions must an inventory search comply? |
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Definition
| There must be a regulation covering their administration (whichuis reasonable) and the search is conducted pursant to that regulation |
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Term
| Under what conditions has SCOTUS held a warrantless random drug test to be valid? |
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Definition
| 1) railroad employees following an incident, 2) customs officers responsible for drug interdiction, 3) children participating in extracurricular activities. |
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Term
| Are government employees protected against warrantless searches of their desks and files by their government employers? |
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Definition
| Not always, such searches can be made if they pertain to investigations of work-related matters |
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Term
| On grounds of what standard may school officials search public schoolchildren's belongings. |
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Definition
| Probable cause is not required. Only reasonable suspicion for the search need be necessary |
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Term
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Definition
| Brief detention or seizure for the the purpose of investigating suspicion of criminal activity. Probable cause is not required - may be based on reasonable suspicion. |
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Term
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Definition
| In the circumstances surrounding the Terry stop, if the officer reasonably believes thatthe person may be armed she may pat down the body and outer clothing for weapons |
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Term
| What is the intended purpose of the Terry frisk? |
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Definition
| Officer safety NOT search for criminal evidence. Though the standard is lower than probable cause, there still must be specific facts that suggest either criminal activity or presence of a dangerous weapon |
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Term
| What can an officer seize in a Terry frisk? |
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Definition
| Naturally, he can seize a dangerous weapon. If he uncovers contraband he may seize that as well. Again, this is not a search for evidence, the officer may not manipulate the outer clothes to determine whether something is contraband or not. |
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Term
| For purposes of the 4th Amendment, when is an individual considered "seized"? |
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Definition
| When, based on a totality of the circumstances, a reasonable person would not feel free to leave, or to dcline an officer's requst to answer questions. |
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Term
| If asked on the Bar if an individual travelling on a bus or attempting to use an airport concourse what factors should you consider to determine if they have been "seized"? |
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Definition
| 1) Did the officer bandish a weapon? 2) Officers' tone or demeanor while interacting with the individual 3) Was the questions up to then corcive? 4) Was the individual told they could decline consent or to cooperate? |
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Term
| Has an individual fleeing police been seized? |
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Definition
| No. Not until/unless he submits to the officer's authority by stopping or the officer restrains him |
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Term
| Who is seized during a traffic stop? |
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Definition
| The driver and all the passengers such that all have the authority to challenge the legality of the stop. |
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Term
| Are "road block" traffic stops a valid if these stops are not made without reasonable suspicion? |
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Definition
| They can be if 1) they are based on some neutral articulable standard AND 2) they are being used to serve some purpose for which automobiles and their mobility present some issue. |
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Term
| Are dog sniffs at traffic stops permissble? |
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Definition
| Yes as long as the sniff does not unreasonably prolong the stop. |
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Term
| You have done the first 6 parts of the 8 step analysis and find that the search satisfied the 4th Amendment. What course do you take from here? |
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Definition
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Term
| You have done the first 6 parts of the 8 step analysis and find that the search did not satisfy the 4th Amendment. What is next? |
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Definition
| Determine whether, ntl, the eveidence can still be used against the D or if any other evidence (veven validly procured) would be inadmissible as Fruit of the Poisonous Tree. |
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Term
| What IS the exclusionary rule: |
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Definition
| Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in cout against the individual whose rights are violated. |
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Term
| When can excluded evience be used? |
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Definition
| It may be introduced to impeach the defendant's testimony on cross-examination |
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Term
| In what type of judicial proceedings may evidence inadmissible under the exclusionary rule be used? |
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Definition
| Grand Jury proceddings, civil proceedings, and parole revocation hearings |
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Term
| Evidence may be supressed under the exclusionary rule if it was obtained following in a search in which the Knock and Announce rule was violated. True or False? |
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Definition
| False. Eclusion is not available remedy for violations of the K&A rule - we don't want the police to forego personal safety in order to prevent risk to evidence. |
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Term
| What is Fruit of the Poisonous Tree? |
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Definition
| Evidnce derived by exploiting prior, unconstitutional conduct. |
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Term
| What is the prosecution attempting to establish in nullifying a claim of Fruit of the Poisonous Tree? |
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Definition
| That a break in the causal chain occurred such thatthe misconduct had not caused the derivative evidence to be obtained |
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Term
| In what 3 circumstances, might a prosecution successfully nullify excluion under Fruit of the Poisonous Tree doctrine? |
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Definition
| 1) Independent SOurce: The prosecution can show that the evidence was obtaind through the use of a diferent source than the misconduct 2) "Inevitable Discovery" doctrine: Demonstrating that the polcie would have, ntl, discovered the evidence had the action been constitutional 3) "Attenuation" doctrine: Passage of time and intervening events have weakened the causal links. |
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Term
| Do you need a warrant for a wiretap? |
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Definition
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Term
| What are the 4 requirements for a wiretap? Polly Prefers Cranberry Tarts |
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Definition
| 1) Probable cause 2) Person's named who are expected to be overheard 3) Conversations in particular that are expected to be overheard 4) Termination of the tap after a strictly limited time period. |
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Term
| What is the "Unreliable Ear" principle? |
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Definition
| A speaker assumes the risk that a person to whom she is talking is unreliable. If that person ends up to be wired, the suspect has no basis in the 4th Amendment to object to the transmitting or recording |
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Term
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Definition
| An arrest ocurs whenthe police take a person into custody against her will for purposes of criminal prosecution or interrogation |
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Term
| An arrest must be based on probable cause. True or False? |
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Definition
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Term
| A driver fails to obey a seatbelt statute. The maximum penalty for violation of the statte is $500 fine an NO jail-time. Can she be arrested (detained) for this violation? |
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Definition
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Term
| Do you need an arrest warrant before making an arrest? |
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Definition
| Not usually. A warrant is not required for making an arrest in a public place (contrast with searches). A warrant is required however if arrest takes place at home (Payton v. New York). |
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Term
| What would the police need to make an arrest at a third person's home? |
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Definition
| They would need to use an arret warrant. Furthermore, they would need a search warrant in order to find the person inside the house. |
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Term
| In what three ways may a D challenge a confession under the Constitution? |
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Definition
| 1) Under the Due Process Clause of the 14th Amendment meant which requires confessions to be voluntary in order to be admissible 2) Under the 5th Amendment which gives D the right against testimonial self-incrimination (Miranda) 3) Under the 6th Amendments that provides D with the right to assistanc from counsel |
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Term
| Under which Amendment does the right to assistance to counsel arise? To what kind of proceedings does it attach? |
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Definition
| The Sixth Amendment. In all CRIMINAL prosecutions, the D has a right to the assistance of counsel at all critical stages of a criminal prosecution. |
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Term
| When does the right to counsel attach? |
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Definition
| The right to counsel does not attach until formal charges have been filed. IOW, it does not apply to pre-charge custodial questioning. |
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Term
| D is in jail on a battery charge. Because the police suspect him in an unrelated murder charge, they place an undercover officer in the holding cell with D who gets D to admit the murder. Has D's 6th Amendment right to counsel been violated? |
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Definition
| Not for the murder charge. D has not been formally charged. Often the right to counsel is referred to as "offense specific" meaning one must repeat his request for counsel if charged for a separate, unrelated charge. This is confusing b/c a "5th Amendment right to counsel" is NOT offense-specific |
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Term
| D is in jail on a murder charge. The police place, X, an undercover officer in the holding cell with D. On his own, D admits to X he committed the murder. Has D's 6th Amendment right to counsel been violated? |
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Definition
| Although D has been formally charged, if X never did anything more than listen to D's confession, D's rights have not been violated. (Unreliable Ear) |
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Term
| Under Miranda, of what rights must the police inform a suspect upon arrest and charge? |
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Definition
| 1) The right to be silent, 2) Anything said will be used against him in court, 3) He has the right to counsel, 4) If he cannot afford counsel, one may be provided for him. |
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Term
| When must the police be required to Mirandize a suspect? |
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Definition
| When the suspect is in custody (Atmosphere characterized by a) police domination and coercion such that b) his freedom of action is restricted in a significant way. 2) accused of a crime and 3) PRIOR to any interrogation. |
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Term
| Officer Bob left his "Miranda card" at home. When he arrests Darryl, he recites from memory an imprecise version of Darryl's Miranda rights. Has Darryl been sufficiently warned? |
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Definition
| Yes. As long as Officer Bob touched on the 4 requirements, it need not be verbatim |
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Term
| Under the 5th Amendment, was is the dfinition of "interrogation"? |
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Definition
| Not only express questioning, but any words or action on the part of the police that the police should know are reasonably likely to to elicit an incriminting response from the suspect. |
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Term
| Is a traffic stop considered "custody"? |
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Definition
| Usually no. There is an expactation that once the business is completed the driver will be free to leave. |
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Term
| The police spot Roger and stop him to ask him about a robbery that took place in the neighborhood. Without Mirandizing him, they tell Roger they are looking for a suspect that fits his description. Roger exclaims that they are right he did it. Was Roger's 5th Amendment rights violated? |
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Definition
| Probably not. Miranda does not apply to incriminating statements made spontaneously. Miranda does not apply to booking questions either (Name, address). |
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Term
| In order to be an effective waiver, what two requirements exist for Miranda waiver: |
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Definition
| It must be made knowingly and intelligently. That is the suspct understands the nature of his rights and the consequences of abandoning them |
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Term
| A suspect allegedly waives his right to presence of counsel. At trial, his incriminating statements are challenged. How must the issue of waiver be proven? |
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Definition
| The burden of proof is on the prosecution to prove by the preponderance of the evidence. |
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Term
| After giving him hs Miranda rights, the officer asks Gary "if he wants to talk". Gary shrugs his shoulders and the police begin interrogation. Did Gary waive his 6th Amendment right to counsel |
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Definition
| Likely No. Silence is not presumed to be a waiver. This seems to rub up against the fact that GAry must also make a specific request for any attorney |
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Term
| What happens when a suspect requests counsel? |
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Definition
| Once a suspects asks for counsel, ALL interrogation must stop. Police may not resume questioning about ANY crime |
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Term
| What happens when a suspect requests that he terminate questioning and invoke his right to remain silent? |
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Definition
| Police must stop all questioning related to the particular crime. |
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Term
| The police are questioning Lonna when she terminates the questioning and invokes her right to remain silent. The police stop the interrogaton. May they later re-start questioning Lonna? |
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Definition
| Only after 1) Lonna is rewarned of her Miranda rights and 2) the questioning is limited to a crime that was not the subject of the earlier questoning. |
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Term
| Information was obtained by Peter in violation of his Miranda rights. Can the prosecution ever use these comments against him? |
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Definition
| Not in the prosecution's case-in-chief. However it can be used against the Peter in cross-examination to impeach his testimony - but not to impeach any other witness |
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Term
| Information was obtained by Peter in violation of his Miranda rights. The police use this information to obtain non-testimonial evidence. Is this physical evidence tainted fruit? |
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Definition
| Lecture notes state that it need not be supressed, the outline only says 5 justices have agreed (2 through concurrence, though) |
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Term
| What is he "pubic safety exception" to Miranda? |
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Definition
| When custodial interrogation is prompted by an immediate concern for public safety. Seems ike this is case specific (Quarles: To find loaded gun in park so kids are safe |
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Term
| Peter is convicted at a trial where evidence/testimony he provided to police was obtained in violation of his Miranda right. If he was unsuccessful in his challenge to the vacate, it would be cause of... |
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Definition
| The govt. proved beyond reasonable doubt that the error was harmless, IOW, b/c the D would have been convicted without the tainted evidence. Burden of proof is beyond reasonable doubt. |
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Term
| What are the 3 types of pre-trial identification? |
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Definition
| Line-ups - the suspect appears alongside an appropriately-numbered group of others. Show-up: The witness is taken to where the suspect is being detained to make the identity. Photo Line-Up (Array): Witness is asked to select a picture of the suspect from a series of phtos presented to her. |
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Term
| On what two bases might you challenge a pre-trial identification procedure? |
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Definition
| 1) Right to Counsel underthe 6th Amendment (Not 5th). Must be charged and NOT for Photo Arrays (Bar favorite!) 2) Due Process violation. The pre-id procedure is SO unnecessarily suggestive that it might lead to compelled misidentification (must prove both prongs) |
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Term
| Provided the D successfully challenges a pre-trial idntification procedure. What is the remedy? |
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Definition
| Exclusion of the identitification at trial (to cooroborate in-court identification). D should not get her hopes up, this remedy is so severe it is rarely granted since the court will allow corroboration through ANY independent source, certainty of the in-court ientification, precision and specificity of the original description to the police. |
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Term
| What is accomplished at a preliminary Gerstein Hearing? |
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Definition
| The D asserts proper treatment under the 4th Amendment for his detention. IOW, a dtermination must be made that there is probable cause to hold him. |
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Term
| When would a Gerstein Hearing be unnecessary? |
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Definition
| When probable cause was already determined (i.e. issuing the warrant, grand jury has indicted) or when he is released from detention on condition thathe appear at trial NOte, any constraint on liberty interest (must pay bail, held in lieu of bail) must have probable cause determination |
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Term
| When Nigel is arrested, his attorney arrives. When told a witness placed Nigel at the scene, the attorney insists on a pre-trial line-up and explains how the line-up should be conducted to ensure due process. What is the prosecution/police response? |
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Definition
| Forget it. 1) there is no right to a pre-trial line-up and 2) the attorney's role at a line-up is simply to observe for later cross-exmination |
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Term
| What occurs at a "First Appearance" |
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Definition
| The mgistrate 1) advises the D of her rights 2) sets bail and 3) appoint counsel if necessary. Decisions regarding bail are immediately appealable. |
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Term
| What duty does a prosecutor have regarding exculpatory evidence? |
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Definition
| He has a duty to disclose all material exculpatory evidence ("Brady Rule"). D can reverse conviction if evidence was favorable to the D and prjudice has resulted |
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Term
| What does it mean to have the right to an unbiased judge? |
|
Definition
| The judge has no financial stake in the the outcome and harbors no actual mlice towards to D |
|
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Term
| When does a criminal defendant have a right to a jury trial? |
|
Definition
| When the maximum authroized sentence exceeds 6 months ("serious offenses") |
|
|
Term
| TO ensure Due Process how many jurors must be assigned to the trial? |
|
Definition
| A minimum of 6 jurors - in such case their decision must be unanimous |
|
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Term
| Does a jury that contains all white women over the age of 60 violate the cross-sectional requirement? |
|
Definition
| No, as long as the POOL from which they were drawn was appropriately diverse. |
|
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Term
| What restrictions apply to preemptory challenges in voir dire? How is an attack on voir dire conducted? |
|
Definition
| Generally, a prosecutor may exercise preemptory challenge for any reason he sees fit EXCEPT to exclude jurors on basis of race or sex. To attack such improper exclusion, 1) the D must show facts or circumstances that raise inference to such impropriety 2) the prosecutor must be provided an opportunity to offer a race/sex-neutral explanation (regardless of how unreasonable). 3) judge must make a determination that such explanation was genuine and not pretextual |
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|
Term
| Is there a Constitutional right to a D to confront a witness? |
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Definition
| Yes - in the Sixth Amendment. NTL, the right is not absolute and confrontation may be denied if proven to serve some important public purpose (traumatizing child witness/victim) |
|
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Term
| Does introducing a co-defendant's own cofession (implicating the D) violate the confrontation clause? |
|
Definition
| Yes. However, the confession may be admitted when 1) all refrencs to the D are eliminated or 2) the confessing co-defendant appears in court and is subjected to cross-x, or 3) the confession is used for some other reason like proving the D's confession was obtained thru coersion. |
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|
Term
| What two elements must be proven to claim ineffective assistance of counsel? |
|
Definition
| 1) Counsel's performance was deficient and 2) But for the deficiency, the outcome of the trial would have been different. On the Bar Exam, unless there us colorable argument that the D is not guilty ALWAYS deny relief under this claim |
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Term
| In his "plea-taking colloquoy" what four issues must the judge discuss with the D? |
|
Definition
| 1) The nature of the charge, 2) The maximum autorized sentence, and any mandatory minimum 3) The D's right to plead Not Guilty and proceed to trial 4) That by pleading guilty, the D is waiving right to trial and will proceed directly to sentencing |
|
|
Term
| Under what circumstances may a D withdraw a guilty plea? |
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Definition
| 1) Problems/deficiencies with the "plea-taking colloquoy" 2) Judicial Defect? 3) A prevailing inefective assistance of counsel claim 4) If the prosecutor fails to fulfill HIS par of the bargain |
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Term
| What does the 8th Amendment prohibit? |
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Definition
| Grossly disproportionate criminal penalties (to the seriousness of the offense) |
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Term
| When is a death penalty statute violate the 8th Amendment? |
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Definition
| When it is an automatic sentence to the crime (no juror discretion) |
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Term
| Against whom is the death penalty prohibited? |
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Definition
| 1) D who is mentally retrded 2) Presently insance, 3) D who was under the age of 18 at the time the relevant offense occurred. |
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Term
| When does double jeopardy attach? |
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Definition
| 1) Jury Trial: When the jury is sworn in, 2) Bench Trial: When the first witness is sworn in 3) Guilty Plea: When the court accepts the plea unconditionally Grand Jury: Trick question - no double jeopardy |
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Term
| Does the Double Jeopardy clause apply to civil proceedings? |
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Definition
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Term
| Can the death penalty be imposed on a D convicted of rape? |
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Definition
| Not unless the D intended to and the rape did rsult in death. |
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Term
| What is the general rule concerning 2 offenses and Double Jeopardy? |
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Definition
| Two crimes are the same offense (e.g. DJ applies) unless each crime requires proof of an additiona element that the other crime does not require. (Blockburger Test) |
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Term
| What happens if two crimes have the same elements but one crime has an additional element. Double Jeopard? |
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Definition
| This is the "lesser-included crime; greater crime" issue. Per lecture notes, Prosecution for the lesser-included crime precludes later prosecution for the greater offense - and vice versa. |
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Term
| What is the "separate sovereigns" rule in Double Jeopardy? |
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Definition
| Separate sovereigns CAN try a defendant for the same offense. A person may be tried for the same conduct by both state and federal court and in two different states (but not by municiality then state). Watch for diversionary tricks on the Bar Exam (a second jury is empaneled) |
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Term
| What are the 4 exceptions to double jeopardy? |
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Definition
| 1) Hung jury 2) mistrial for manifest necessity 3) Retrial after successful appeal of the litigation 4) Breach of a plea bargain, this time by the D |
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Term
| Can the D be the only one who can assert privilege against compelled tstimony? |
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Definition
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Term
| When and where can the privilege against compelled testimny be invoked? |
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Definition
| At any proceeding whee the person is testifying under oath |
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Term
| Does a person have privilege under the 5th Amendment to refuse blood or urine sample? |
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Definition
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Term
| Can a person object to participating in and speaking at a line-up by invoking the 5th Amendment? |
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Definition
| No the privilege extends only to testimonial evidence. |
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Term
| At trial, Victor declined to answer certain question on the grounds that his answer may self-incriminate. At closing, the prosecutor points out that Victor answered some questions but refused to answer other, more pertnent questions. Proper? |
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Definition
| No, prosecutor may not comment on one';s assertion of the privilege |
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Term
| Bob testifies that he knew Candy when he was a patron at the club she danced at. On cross-examination, the prosecutor asks Bob if he tended to ait until the club closed to talk with Candy. Can Bob invoke 5th Amendment privilege? |
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Definition
| Generally, no. He has waived the privilege to the extent to be cross examined within scope ofis testimony. |
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