Term
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Definition
| Protects against unreasonable search and seizure |
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Term
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Definition
Privilege against incriminating Statements
Protects against Double Jeopardy |
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Term
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Definition
-Right to Counsel
-Right to Speedy Trial
-Right to Jury Trial
-Right to Confront Witnesses |
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Term
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Definition
| Bars against cruel and unusual punishment |
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Term
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Definition
-Burden on prosecution to prove beyond reasonable doubt each element
-Unnecessarily suggestive identification |
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Term
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Definition
| Victim of an illegal search or a coerced confession can (among other remedies) have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution. |
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Term
| Limitations on the Exclusionary Rule |
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Definition
-Fruits derived from Miranda violations
-Independent source
-Defendant’s intervening act of free will
-Inevitable discovery
-Violations of knock and notice |
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Term
| Exclusionary Rule does not apply in: |
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Definition
-Grand juries, civil proceedings, violations of state law, internal agency rules and parole revocation proceedings
-Good faith reliance on law, defective search warrant or clerical error
-Impeachment
Note: On appeal, a court will apply the harmless error test. Conviction will be upheld if the conviction would have resulted despite the improper evidence. |
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Term
| Fruit of the Poisonous Tree doctrine |
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Definition
| The doctrine will not only exclude illegally seized evidence but will also exclude ALL evidence obtained or derived from police illegality. |
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Term
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Definition
An arrest must be based on probable cause.
-Arrest warrants are generally not required before arresting someone in a public place. However, a non-emergency arrest of an individual in his home does require an arrest warrant
-Station house detention: The police need probable cause to arrest you and compel you to come to the police station either for fingerprinting or interrogation |
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Term
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Definition
| The police have the authority to briefly detain a person even if they lack probable cause to arrest. In order to make such a stop, the police must be a reasonable suspicion supported by articulable facts of criminal activity based on the totality of the circumstances |
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Term
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Definition
The police may stop a car if they have at least reasonable suspicion that the law has been violated.
Exception: Roadblocks (DUI and immigration checkpoints); Must be neutrally applied. |
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Term
| Steps for search and seizure: |
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Definition
1) Is there governmental conduct?
2) Is there a reasonable expectation of privacy?
3) Did the police have a valid search warrant
4) If warrant is not valid, does an officer's good faith defense save the defective search warrant?
5) If a warrant is invalid and cannot be saved by the good faith defense, are there any exceptions to the warranty requirement? |
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Term
| Search and seizure: Government Conduct |
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Definition
1. Publicly paid police - on or off duty
2. Any private individual acting at the direction of the public police
(private police do not constitute governmental conduct unless they are deputized with the power to rescue) |
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Term
| Search and seizure: Reasonable expectation of privacy |
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Definition
-If you own the premises searched, you always have standing to object to the search of the place you own.
-You live on the premises searched, whether you have ownership interest or not. Example: Grandchild living at grandparents’ home.
-Overnight guests have standing to object to the illegality of the search of the place they are staying. |
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Term
| Search and seizure: What do you not have an expectation of privacy in? |
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Definition
You have no expectation of privacy and therefore no standing for anything that you hold out to the public everyday.
-The sound of your voice
-The style of your handwriting
-The paint on the outside of your car
-Account records held by a bank
-Monitoring the location of your car on a public street or in your driveway
-Anything that can be seen across the open fields
-Anything that can be seen from flying over in the public airspace
-The odors emanating from your luggage or car
-Your garbage set out on the curb for collection |
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Term
| Requirements for a valid search warrant |
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Definition
1) Probable cause = A fair probability that contraband or evidence of a crime will be found in the area searched
2) Particularity = The warrant must state with particularity the place to be searched and the things to be seized. |
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Term
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Definition
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Term
| Can police base search warrant on information from informants? |
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Definition
| Yes, but probable cause is based on the totality of the circumstances including the informant's credibility and reliability. A valid warrant can be based in part on an informant’s tips even though that informant is anonymous |
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Term
| Knock and announce & its exceptions |
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Definition
Police must knock and announce themselves before entering the premises. Exceptions where no knock is required:
-If knocking and announcing would be dangerous, futile, or inhibit the investigation (result in destruction of evidence) |
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Term
| Defective warrants: Officer's good faith defense & its exceptions |
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Definition
An officer’s good faith reliance on a search warrant overcomes defects with the probable cause of particularity requirements
Four exceptions to a good faith reliance on a defective search warrant:
1) The affidavit underlying that 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.
4) If the magistrate is biased and therefore has wholly abandoned his or her neutrality. |
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Term
| Exceptions to the warranty requirement |
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Definition
1) Search incident to lawful arrest
2) Automobile exception
3) Plain view
4) Consent
5) Stop & frisk (terry stop)
6) Evanescent evidence, hot pursuit & special needs searches
7) Wiretapping & eavesdropping |
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Term
| Search incident to arrest |
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Definition
If there is a lawful arrest, police can search:
-The PERSON in the areas in to which he can reach either to procure a weapon or destroy evidence.
-The AUTOMOBILE (interior) only if the arrestee is unsecured and still may gain access to the interior of the vehicle OR the police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle (ties in with automobile exception) |
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Term
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Definition
| If police have probable cause to believe that a vehicle contains fruits, instrumentalities or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search whether or not that package, luggage or other container is owned by the passenger or the driver. |
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Term
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Definition
| Police may seize evidence that is plain view so long as they are legitimately on the premises and it is immediately apparent that the item is contraband or a fruit of a crime. |
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Term
| Consent to a search requires: |
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Definition
Consent to be voluntary and intelligent
3rd party consent: where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not consent, then the one who does not consent controls. |
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Term
| Stop & Frisk (Terry Stop) |
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Definition
A police officer may stop a person without probable cause for arrest if she has reasonable suspicion supported by articulable facts of criminal activity based on the totality of the circumstances.
Terry Frisk = pat down of the outer clothing and body to check for weapons (plain feel, no manipulation of the object) and is justified by concern for officer safety.
If a vehicle is stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may (1) conduct a frisk of the suspected person, and (2) may search the vehicle so long as it is limited to the areas in which a weapon may be placed. |
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Term
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Definition
Police may seize without a warrant evanescent evidence (evidence that might disappear quickly if the police look the time to get a warrant.)
i.e., scrape under a fingernails b/c by the time police get warrant, they can go wash hands |
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Term
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Definition
Police in hot pursuit may make a warrantless search and seizure.
If the police are not within 15 minutes behind the fleeing felon, it is not a valid hot pursuit exception.
If the police are truly in hot pursuit they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible. |
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Term
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Definition
| Before incarceration of an arrestee, the police may search (1) the arrestee’s personal belongings and/or (2) the arrestee’s entire vehicle (includes closed containers). |
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Term
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Definition
Warrantless searches of public school children’s effects such as purses and/or backpacks are permissible to investigate violations of school rules.
A school search will be held to be reasonable only if:
1. It offers a moderate chance of finding evidence of wrongdoing; and
2. The measures adopted to carry out the search are reasonably related to the objectives of the search; and
3. The search is not excessively intrusive. |
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Term
| Does wiretapping require a warrant? |
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Definition
Yes, exceptions: "unreliable ear" and "uninvited ear"
Everybody in this society assumes the risk that the person to whom he is speaking will either consent to the government monitoring the conversation or will be wired and therefore has no Fourth Amendment objection on the basis that it was a warrantless search.
A speaker has no Fourth Amendment right if she makes no attempt to keep the conversation private. |
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Term
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Definition
Voluntary.
If it is involuntary, the harmless error rule would apply (i.e., the conviction need not be overturned if there is other overwhelming evidence of guilt.) |
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Term
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Definition
1. You have a right to remain silent
2. Anything you say can be used against you in court
3. You have the right to an attorney; and
4. If you cant afford an attorney, one will be appointed for you if you so desire |
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Term
| When are Miranda warnings required? |
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Definition
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Term
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Definition
You are not free to leave (i.e., being in police car, being in jail, etc.)
Routine traffic stops and probation interviews are not custodial. |
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Term
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Definition
Interrogation is defined as any conduct where the police knew or should have known that they might elicit an incriminating response from the suspect.
Miranda warnings are not required prior to the admissibility of what’s known as a spontaneous statement. |
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Term
| A waiver of Miranda rights must be: |
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Definition
| Knowing, voluntary and intelligent. |
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Term
| Invoking the right to remain silent must be: |
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Definition
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Term
| May the police reinitiate questioning after D invokes right to remain silent? |
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Definition
| Yes, the police may reinitiate questioning after the defendant has invoked the right to silence if they wait a significant amount of time, defendant is re-mirandized and the questions are limited to a crime that was NOT the subject of the earlier questioning. |
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Term
| Invoking the right to counsel must be: |
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Definition
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Term
| What is the effect of invoking the right to counsel? |
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Definition
| All questions must cease until (1) the accused is given an attorney or (2) the accused initiates further questioning. |
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Term
| When does the right to counsel attach? |
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Definition
| For all critical stages of prosecution AFTER formal charges have been filed/after judicial proceedings have begun. |
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Term
| 5th amendment vs. 6th Amendment right to counsel |
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Definition
-The court-created Fifth Amendment right to counsel arises when a suspect invokes his Miranda rights and requests an attorney.
-The Fifth Amendment Right to counsel is not offense specific and thus applies to the entire process of custodial police interrogation.
-Conversely, the Sixth Amendment Right to Counsel is offense specific, meaning counsel would only need to be present if the Defendant were being asked questions about the specific case for which the Defendant has retained counsel. |
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Term
| Right to counsel in post charge lineups (standing in a line) and post-charge show ups (one-on-one)? |
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Definition
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Term
| Right to counsel when the police go out to show the victim or witness photographs? |
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Definition
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Term
| Other stages where there is NO right to counsel |
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Definition
-Taking of blood samples
-Taking of handwriting samples
-Pre-charge lineups
-Brief recess during defendant’s testimony at trial
-Parole and probation revocation proceedings
-The taking of fingerprints. |
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Term
| Requirements for a pretrial identification and remedies |
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Definition
A pretrial identification must not be unnecessarily suggestive.
If it is, then the identification will be excluded unless it can be remedied by showing it had an adequate independent source for that in-court identification. (i..e, victim or witness had an adequate opportunity to observe the defendant at the time of the crime). |
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Term
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Definition
-Generally, bail can be set no higher than is necessary to assure the defendant’s appearance at trial
-Refusal to grant bail or the setting of excessive bail are immediately appealable. |
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Term
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Definition
-Proceedings are secret
-Defendant has no right to appear
-Witness may be compelled to testify based on illegally seized evidence
-Exclusionary rule does not apply |
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Term
| Prosecution's duty to disclose exculpatory information |
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Definition
A failure to disclose exculpatory information will constitute grounds for reversing a conviction if:
-The evidence is favorable to the defendant and
-Prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the information been disclosed. |
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Term
| If defendant is going to use alibi or insanity defense, he must: |
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Definition
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Term
| Right to jury trial attaches when: |
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Definition
| The defendant is tried for an offense for which the maximum authorized sentence exceeds 6 months. If the maximum authorized sentence is up to or including 6 months, there is no constitutional right to jury trial. |
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Term
| Minimum number of jurors & unanimity requirement: |
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Definition
The minimum number of jurors permissible is 6. If a court uses this minimum of jurors, the verdict must be unanimous.
NO federally protected right to a unanimous 12 juror verdict. |
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Term
| Cross sectional requirement for jury: |
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Definition
| You have the right to have the jury pool reflect a fair cross section of the community. BUT you have no right to have the impaneled jury reflect a fair cross section of the community. |
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Term
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Definition
| A peremptory challenge is a challenge to exclude a prospective juror for any reason whatsoever. However, it is unconstitutional to exclude on the account of their race or gender. |
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Term
| Ineffective assistance of counsel |
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Definition
| There must be deficient performance by counsel and, but for deficiency, the result of the proceeding would have been different. (specify particular errors of counsel) |
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Term
| Right to self-representation |
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Definition
A defendant has the right to defend himself so long as his waiver of trial counsel is knowing and intelligent and he is competent to proceed pro se.
Note: a defendant can be found mentally competent to stand trial, yet incompetent to represent himself as determined by a trial judge’s discretion |
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Term
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Definition
Sixth Amendment grants defendant in a criminal prosecution the right to confront adverse witnesses. However, this is not absolute. Face-to-face confrontation is not required when preventing such confrontation serves an important public purpose and the reliability of the witness testimony is otherwise assured. (i.e., sex abuse cases)
A defendant who is disruptive may be removed from the courtroom, thereby relinquishing the right of confrontation. |
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Term
| If 2 persons are tried together and one has given a confession that implicates the other, the right of confrontation |
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Definition
Prohibits use of that statement even where the confession interlocks with the defendant’s own confession, which is admitted.
However, a statement MAY be admitted IF:
1. All portions referring to the other defendant can be eliminated
2. The confessing defendant takes the stand and subjects himself to cross-examination with respect to the truth or falsity of what the statement asserts; or
3. The confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively/involuntarily made. |
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Term
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Definition
| Defendant can be held to forfeit the Confrontation Clause claim if the defendant caused and intended to keep the witness from testifying. |
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Term
| If defendant pleads guilty, judge must: |
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Definition
On the record, address the following:
-Nature of the charge
-Judge must tell D the maximum authorized penalty and any mandatory minimum penalty; and
-Judge must tell him that he has a right to plead not guilty and to demand a trial; and
-Must be on the record |
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Term
| A defendant can withdraw a guilty plea after sentence if: |
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Definition
-The plea was involuntary (some mistake in plea taking ceremony) Note: A plea is not involuntary merely because it was entered in response to the prosecution’s threat to charge the defendant with a more serious crime.
-Lack of jurisdiction
-Ineffective assistance of counsel
-Failure of the prosecutor to keep an agreed upon plea bargain. |
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Term
| Effect of the guilty plea |
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Definition
| A guilty plea neither admits the legality of incriminating evidence nor waives Fourth Amendment claims in a subsequent civil damages action. |
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Term
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Definition
Any death penalty statute that does not give the defendant a chance to present mitigating facts & circumstances is unconstitutional
-No automatic category for imposition of death penalty
-Only a jury may determine the aggravating factors justifying imposition of death penalty |
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Term
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Definition
A person may not be retried for the same offense once jeopardy has attached.
(Bars retrial for the same offense by the same sovereign. State & fed are not the same sovereign) |
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Term
| When does double jeopardy attach? |
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Definition
Jeopardy attaches in a jury trial when the jury is sworn. In a bench trial, jeopardy attaches when the first witness is sworn.
Jeopardy does not generally attach when the proceedings are civil. Example: it is okay to have a criminal prosecution for tax fraud and then a civil proceeding to collect the back taxes. |
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Term
| A retrial is permitted if: |
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Definition
-Jury is unable to agree upon a verdict (hung jury)
-Mistrials for manifest necessity (D halfway to trial has appendicitis and get surgery. Not practical to keep jury while D goes through this process)
-A retrial after a successful appeal is not double jeopardy. But note: Upon retrial after a successful appeal, the Defendant cannot be retired for a more serious offense than he was convicted of at the first trial.
Example: If D convicted of manslaughter and appeals, he cannot be retried for more serious crimes such as murder.
-Breach of an agreed upon plea bargain by the defendant. Rule: When the defendant breaches a plea bargain agreement, his plea and sentence can be withdrawn and the original charges reinstated. |
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Term
| Double jeopardy: Two crimes do not constitute the same offense if |
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Definition
| Each crime requires proof of an additional element that the other does not. |
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Term
| 5th amendment right against self-incrimination |
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Definition
A person (not corporation or partnership) may refuse to answer a question whenever his response might furnish a link in the chain of evidence needed to prosecute him.
-You must assert that privilege the first time the question is asked or you will have waived your Fifth Amendment privilege for all subsequent criminal prosecutions.
-The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution.
-If the individual responds to the questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence on Fifth Amendment grounds. |
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Term
| 5th amendment right against self-incrimination does not protect: |
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Definition
Citizens from having the government use physical evidence in ways to incriminate them.
Examples of non-testimonial evidence that the prosecution can compel a person to produce:
-A person’s blood sample.
-A person’s handwriting sample.
-A person’s voice sample.
-A person’s hair sample. |
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Term
| Can prosecutor make a negative comment on D's failure to testify or on a defendant choosing to remain silent after given Miranda? |
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Definition
No. But the prosecutor can comment on the defendant’s failure to take the stand when the comment is in response to defense counsel’s assertion that defendant was not allowed to explain his side of the story.
-When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies, and thus, the prosecutor’s conduct may not be fatal to an otherwise sound conviction. |
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