Term
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Definition
| Can search an entire car and all contents inside if there is probable cause to believe that there is evidence of a crime inside |
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Term
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Definition
The police may make a warrantless seizure when they: 1. Are legitimately on the premise; 2. Discover evidence, fruits or instrumentalities of crime, or contraband; 3. See such evidence in plain view; and 4. Have probable cause to believe (it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of a crime. |
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Term
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Definition
| A warrantless search is valid if hte police have a voluntary and intelligent consent. The police do not have to warn of the person's right to deny consent. |
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Term
| Can nontestimonial evidence that is found through statements given under a Miranda violation be used in court? |
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Definition
| It's unclear whether to suppress the fruits of an unlawful interrogation. The court case had no majority opinion, but 5 justices said that you don't have to suppress the evidence. |
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Term
| If the police say they have a warrant and someone consents to the search and the police do not have a warrant what happens? |
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Definition
| The lie negates consent and anything found is inadmissible |
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Term
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Definition
| If an officer has reasonable suspicion of criminal activity, the officer can stop that person without probable cause. If the officer believes the person is armed, they can frisk the person for weapons. |
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Term
| Who has authority to consent to a search? |
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Definition
| Any person with an apparent equal right to use or occupy the property may consent to a search. However, if two people own house and one objects, can't search. |
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Term
| When can evidence obtained from a Miranda violation be used in court? |
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Definition
| Statements obtained in violation can be used at trial to impeach the accused, but can't be used as evidence of guilt. |
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Term
| When can an officer reach into a person's pocket? |
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Definition
| During a pat down if the officer sees or feels something she reasonable believes to be a weapon, she can reach in and seize it. |
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Term
| Hot Pursuit and Evanescent Evidence |
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Definition
| The police can go anywhere and search anything if they enter a premise in hot pursuit of a felon criminal. They can seize any evidence that they feel may disappear before a warrant can be obtained. |
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Term
| Wiretapping and Eavesdropping |
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Definition
| Constitutes a search under 4th amendment. Can obtain warrant with: probable cause, the suspected person will be talked about in the convo, the warrant describes the convo to be obtained, the wire is only for a short period of time, and it ends as soon as the relevant info is obtained, and it's taken immediately to court to show convo. |
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Term
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Definition
| Any person speaking in the US must assume the risk that the conversation is being taped or that the person you are talking to is wired. |
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Term
| What two things must you have for Miranda? |
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Definition
| Custody and interrogation |
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Term
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Definition
| When a reasonable person would feel as if they are not free to leave. (could be at home, in a police car...) |
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Term
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Definition
| Any conduct where police know or should have known that they might elicit a response from the defendant or a damaging statement. |
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Term
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Definition
| A suspect can waive Miranda rights but the prosecution must prove taht the waiver was knowing, voluntary, and intelligent. Silence or shrugging is NOT a waiver of Miranda rights. |
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Term
| When can the accused stop the interrogation? |
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Definition
| Anytime prior to or during the interrogation by invoking either the right to remain silent or the right to counsel. |
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Term
| Right to Counsel During Interrogation |
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Definition
| If the accused indicates that he wishes to speak to counsel, all questioning must cease until counsel has been provided unless the accused waives his right to counsel (by reinitiating questioning). The request must be specific. Counsel must be present during the remaining interrogation. This is an invocation of accused's 5th Amendment right to counsel |
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Term
| When does an accused invoke their 5th Amendment right to counsel? |
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Definition
| If they have been given their Miranda warnings and they are being interrogated and ask for one, it's the 5th Amendment invocation and questioning must stop and Lawyer must be present for the rest of questioning. |
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Term
| What rights do you have under the 6th Amendment? |
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Definition
| The right to counsel does not qualify for any post charge line up or show up. The don't have a right at a photo line up, finger prints, or when police take evidence. |
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Term
| What is the remedy for an invalid line up? |
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Definition
| The witness is not allowed to make an in court identification, unless they have an "independent source" for making the identification. An independent source can be the opportunity to observe the criminal at the time of the crime close up for 40 minutes. |
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Term
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Definition
| Bail issues are immediately appealable, and preventive detention is constitutional |
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Term
Are state's required to use Grand Juries? |
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Definition
| No, the 5th amendment right to indictment by a grand jury was not incorporated by the 14th amendment to states. However, some states do use this. |
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Term
| How does the exclusionary rule work with Grand Juries? |
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Definition
| Does not apply and witnesses can be compelled to testify about illegally seized evidence. |
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Term
| What are three differences between Grand Juries and normal criminal trials: |
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Definition
1. Def. has no right to have counsel present dury grand jury testimony 2. Grand jury can consider evidence that would be excluded at trial 3. The def. must appear if called (no right to challenge lacking of probable cause to be called), although he can refuse to answer based on the 5th. |
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Term
| What is the only thing that could quash a grand jury indictment? |
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Definition
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Term
| When does defendant have a right to a speedy trial? |
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Definition
| when he has been arrested and charged! |
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Term
| When do you have a right to a jury trial? |
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Definition
| Only for serious offensew ir imprisonment is more than 6 months. No right in juvenile delinquency cases. |
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Term
| Can you have a right to trial for a contempt claim? |
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Definition
For civil no, but for criminal if all of your contempt penalties add up to more than 6 months you can. |
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Term
| How many jurors does it take for a decision? |
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Definition
| There is no right to a jury of 12, but there must be at least 6 jurors to satisfy the right to jury trial. The SC has upheld a 9-2 vote, but probably wouldn't hold 8-4. If only 6 must be unanimous. |
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Term
What must you show for an IAC claim? |
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Definition
Set out standards, and if not guilty deny relief. Must show: 1. Deficient performance by counsel; and 2. But for the deficiency the result of proceeding would've been different. Unless there is some argument that he's not guilty, deny relief |
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Term
| Cross Sectional Requirement |
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Definition
| You have a right to have the jury pool reflect a cross-section of the community, but NOT the right to have your jury reflect that. |
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Term
| How is plea bargaining like a contract? |
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Definition
| Both sides have to hold their end of the deal or else plea will be withdrawn and the process will happen again. |
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Term
| What must the judge do in a plea bargain? |
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Definition
Tell the Def: 1. nature of charge 2. max authorized penlaty and any mandatory min. penalty 3. tell him he has a right to plea not guilty and demand a trial |
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Term
| Can a statute impose the Death Penalty automatically? |
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Definition
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Term
| How will a Death Penalty statute be unconstitutional? |
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Definition
1. If it doesn't give def. a chance to present mitigated facts and circumstances it's unconstitutional. 2. There can be no automatic category for DP 3. The statute can't specifically mitigate factors or evidence 4. Only a jury can determine the aggregating factors that impose the DP |
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Term
| When does Double Jeopardy attach? |
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Definition
| In a jury trial when jury is sworn, and in a judge trial when first witness is sworn. Does NOT attach for Civil cases! |
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Term
| When can a state retry a person for the same offense? |
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Definition
1. If there's a hung jury 2. If there was a "manifest necessity" to abort trial, the def. will be reprosecuted 3. If the def. validly appealed and won and case was remanded 4. Breach of a plea bargain by def. the sentence can be withdrawn and original sentence reinstated. |
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Term
| When can you try someone for a greater offense than first tried for? |
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Definition
| If trying for battery and the person later dies in the hospital, you can retry for murder. |
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Term
What is separate sovereigns? |
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Definition
| State and federal are separate, state and another state are separate, state and location of crime within state are same. |
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Term
| Can you be tried for the same crime in two different courts? |
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Definition
| Yes if separate sovereigns! Can be tried in state and federal. Or state and another state. Does not count as double jeopardy. |
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Term
| What does the 5th privilege protect from? |
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Definition
| Self incriminating statements. Does not protect from using def's body in a way to incriminate (ex: blood, hair, etc). |
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Term
| What does 5th not protect from? |
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Definition
1. physical incrimination- blood, hair, etc 2. Compulsory production of documents 3. Seizure of incriminating documents |
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Term
| What is privileged testimony under the 5th? |
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Definition
| Only Compelled testimony! |
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Term
| What are prosecutors not allowed to do at trial? |
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Definition
| Comment on a defendant not testifying, or comment on a def. being silent after given his miranda rights. |
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Term
| When does a def. waive their 5th privilege? |
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Definition
| When they take the stand, they are subject to cross examination. It's waived if he discloses any incriminating info on the stand. |
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