Criminal Procedure

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  1. Prosecutors
    • Member of executive branch
    • Primary discretion to charge
    • Influence over grand jury by: (a) Drawing up indictment; (b) calling and examining witnesses; (c) advising GJ on the law; (d) Being in constant attendance during proceedings
  2. Limitations on the prosecutor
    • Cannot mislead GJ or engage in fundamentally unfair tactics
    • Cannot insist on indictment based on known perjury
    • Cannot make statements or argue in a manner calculated to inflame the GJ unfairly against the accused
  3. Grand Jury
    • Member of judicial branch
    • Only hears the side of the prosecutor
    • Independent body
    • Secret proceedings
  4. Two roles of the grand jury
    • Accusor - sworn to investigate and present for trial persons accused of wrongdoing
    • Bulwark - Shield between D and gov. protecting D from oppresive and unfounded prosecution
  5. 5th amendment Grand Jury requirement
    No person can be held for a capital or infamous crime absent a presentment of indictment by the GJ
  6. 5th amendment GJ clause and the states
    • Does not apply to states
    • Was not incorporated by DP clause
  7. Costello v. US
    GJ may issue indictment based only on heresay evidence - only need enough evidence to call for a trial of the charge on the merits
  8. Policy for allowing GJ indictment on only hearsay evidence
    Don't want a mini-trial to determine adequency of evidence - delays the criminal justice process
  9. Ways to test a witness
    • Receive
    • Relate
    • Remember
    • Reliability (bias; pis; prior convictions)
  10. United States v. Hogan
    Prosecutor cannot deceive grand jury as to quality of evidence
  11. US v. Williams (GJ)
    Prosecution does not have to present exculpatory evidence to the GJ
  12. US v. Cox (GJ)
    Prosecutor can choose not to indict (signature of prosecutor is necessary to the validity of the indictment - prosecutor is not under a duty to prepare indictments that he is not willing to sign
  13. Rule 48
    US atty may, by leave of court, file a dismissal of the indictment
  14. Rule 7
    requires the prosecutor to sign the indictment - prosecutor signs if he agrees
  15. Inmates of Attica Correctional Facility
    Cannot substitute discretion of the court for the US atty's decision not to prosecute
  16. People v. Municipal Court
    Private individuals cannot initiate a criminal prosecution without the approval of the DA or atty general
  17. When the 5th amendment right against self-incrimination applies
    When the accused is compelled to make an incriminating and testimonial statement
  18. Collective groups and 5th amendment
    5th amendment cannot be asserted by a collective group or by a representative employee or agent of that collective group - personal privilege that only applies to natural individuals
  19. Fisher (5th amendment)
    A sole proprietor's tax records in the possession of his accountant are not protected by the 5th
  20. Matter of Grand Jury Proceedings of Guarino
    Demanding production of documents is not a compulsion of testimony
  21. When the act of producing documents in response to a subpeona could have communicative aspects
    • It amounts to admission of their possession and control
    • It authenticates the documents produced
  22. Selective prosecution
    An ind. assertion that the prosecutor has brought the charge for reasons forbidden by the constitution
  23. Exception to prosecutor's broad authority to prosecute
    constitutional constraints - decision whether or not to prosecute may not be based on an unjustifiable standard such as race, religion, or other arbitrary classification
  24. To but presumption that prosecutor has not violated EP by selective prosecution: US v. Armstrong
    credible showing of different treatment of similarly situated people - some evidence tending to show the existence of the essential elements of the defense, discriminatory effect and discriminatory intent
  25. Brady Rule - Brady v. MD
    • Prosecution must disclose evidence that is both:
    • favorable to the accused
    • Material either to guilt or punishment - result of the proceeding would have been different
  26. Strickland outcome determinative test for materiality
    material only if there is a reasonable probability (sufficient to undermine confidence in the outcome) that had the evidence been disclosed the result of the proceeding would have been different
  27. Three situations involving the discovery, after trial, of information favorable to the accused that had been known to the prosecution but unknown to the defense
    • (fundamentally unfair - material) Prosecutor's knowledge and failure to disclose of perjured testimony
    • D does not make Brady request and prosecutor fails to disclose evidence favorable to accused
    • D makes specific request and prosecutor fails to disclose
  28. What does the 4th amendment protect
    • persons
    • houses
    • effects
    • papers
  29. Requirements for 4th amendment search & seizure
    • Probable cause
    • Oath/affirmation
    • warrant particularly describing what needs seized
    • Warrant particularly decribing place that needs searched
  30. Reasonableness test for 4th amendment
    Privacy (subjective and objective) v. Legitimate governmental interest
  31. Exceptions to warrant requirement and PC under the 4th amendment
    • Hot pursuit
    • Cry for help
    • Destroy evidence
    • Consent
    • Public arrest
    • Emergency Aid
    • Independent Source
    • Search incident to lawful arrest
  32. Areas where you don't need PC under 4th amendment
    • Persons - public schools
    • Places - airports, borders
    • Professions - railroad worker, secret service
  33. Remedies for a 4th amendment violation
    • Exclusion
    • Prosecution
    • Civil Suit
  34. Mapp v Ohio
    The 4th amendment's protection against arbitrary police intrusion is basic to the concept of a free society, and therefore implicit in the concept of ordered liberty and enforceable against the states through DP of 14th
  35. Exclusionary rule and states
    Exclusionary rule is incorporated to the states
  36. US v. Calandra
    Exclusionary rule does not apply to grand jury proceedings
  37. Hudson v. MI
    A violation of knock and annouce does not require exclusion because the interests protected by this rule have nothing to do with the actual seizure of evidence
  38. US v. Leon
    Good faith exception to exclusionary rule - no suppression of evidence obtained in objective reasonable good faith reliance on a warrant
  39. Exceptions to the good faith exception to the exclusionary rule
    • Magistrate misled by info in affadivit affiant knew or should have known was false
    • Magistrate wholly abandoned his judicial role
    • Warrant so lacking in PC that it would be unreasonable to rely on it
    • Warrant is facially deficient
  40. Groh v. Ramirez
    Unreasonable to proceed on a warrant that does not list the things being sought
  41. Independant source doctrine
    allows admission of evidence that has been discovered wholly independent of any constitutional violation
  42. Exceptions to the exclusionary rule
    • Knock and announce
    • Good faith
    • Independant source
    • Inevitable discovery
  43. Inevitable discovery. Nix v. Whiteside
    unconstitutionally obtained evidence may be admitted at trial if it inevitably would have been discovered in the same condition by an ind. line of investigation that was already being pursued when the constitutional violation occurred.
  44. Boyd v. US
    compulsory production of private books and papers of the woner of goods sought to be forfeited is the equivalent of an unreasonable search and seizure
  45. Warden, Maryland Penitentiary v. Hayden
    • Gov. can seize mere evidence during a search. But:
    • Must be a nexus between the item received and the criminal behavior
    • PC must also be examined
  46. Touchstone of 4th amendment analysis
    DDoes the person have a constitutionally protected reasonable expectation of privacy
  47. two-part test of a reasonable expectation of privacy in 4th amendment analysis
    • (Subjective) Has the individual manifested a subjective expectation of privacy in the object of the challenged search
    • (Objective) Is society willing to recognize that expectation as reasonable
  48. Katz v. US
    • electronically listening to and recording suspect while on the telephone in a phone booth violates the suspect's reasonable expectation of privacy and therefore violates 4th amendment
    • constitution protects people not places
    • Public searches conducted without a warrant are per se unreasonable absent a few exceptions
  49. Factors for determining curtilege
    • domestic area
    • Proximity to home
    • Use
    • efforts (to keep from prying eyes)
  50. CA v. Ciraolo
    What a person knowingly exposes to the public even in his own home is not subject to 4th amendment protection (no objective expectation of privacy)
  51. FL v. Riley
    As long as a person is in a place where they have a right to be and there is no noise, wind, dust, or threat of injury, there is no 4th amendment violation
  52. Open fields doctrine
    No privacy for activities outdoors in fields, except in areas immediately surrounding the home
  53. Donovan v. Dewey
    More latitude in inspections of commercial property because the expectation of privacy differs greatly from the sanctity of the home
  54. Dow Chemical v. US
    • Taking aeriel photos of an industrial plant complex navigable airspace is not prohibited by the 4th
    • What is observable to the public may be observable to the gov.
    • May be a violation if the gov. uses highly sophisticated surveillence equipment not generally available to the public
  55. Kyllo v. US
    using a device not in general public use to explore details of a home is a use - Key: home is where intimate activities are conducted
  56. Assumption of the risk and technological surveillence - US v. White
    No 4th protection from the recording or radio transmission of conversation a suspect has with another person
  57. Hoffa v. US
    4th amendment does not protect expectations of trust
  58. Bond v. US
    Physical manipulation of bus passenger's carry on luggage violated protection against unreasonable searches
  59. Payton v. NY
    Home is sacrosanct - entry into a home without a warrant is presumptively unreasonable
  60. Steagold
    Cannot enter a third party's house without a search warrant on an arrest warrant for a suspect
  61. US v. Banks
    Time required to wait after knock and annouce is a function of the item sought
  62. Knock and Announce with drugs
    Imminent disposal, not travel time to entrance, that governs when police may reasonable enter
  63. Richards v. WI
    Obligation to knock and announce gives way when officers have a reasonable suspicion that knocking and announcing under the circumstances would be dangerous or futile or would inhibit the effective investigation of a crime
  64. No knock warrants
    Can be issued by magistrate if there is specific information that the suspect has a history of violence or that there are drugs involved
  65. Illinois v. McArthur
    It is lawful to temporarily seize someone by refusing to allow him to enter his home unaccompanied, which may permit him to destroy evidence while the cops get a warrant
  66. Test for lawful temporary seizure
    • Limited in terms of time
    • Limited in terms of intrusion
    • Holding him only for the purpose of obtaining a warrant
  67. Probable Cause - Carroll v. US
    If the facts and circumstances before the officer are such as to warrant a man of prudence and caution in believing that the offense has been committed
  68. Aguilar/Spinelli Test for probable cause based on anonymous tip
    • (Narrow test)
    • Magistrate must be informed of reasons the informant is credible (veracity/reliability/freshness)
    • Magistrate must be informed of underlying circumstances relied on by person providing information (sttmnt detailing manner in which info was gathered; describes accused's activity in sufficient detail)
  69. Totality of circumstances analysis for PC based on anonymous tip. Illinois v. Gates
    Magistrate must make a practical, common-sense determination whether, given all the circumstances set forth in the affidavit before him, including the veracity and basis of knowledge of the persons supplying hearsay info that there is a fair probability that contraband or evidence of a crime will be found in a particular place
  70. For conditioned anticipatory warrant to comply with PC:
    • If the triggering condition occurs, there is a fair probability that contraband or evidence will be found in a particular place AND
    • There is PC to believe the triggering condition will occur
  71. Exceptions to the warrant rule
    • Warrantless arrests
    • Consent
    • Plain View
    • Exigent Circumstances
    • Automobiles
    • Search incident to arrest
    • Inventory Searches
  72. Maryland v. Pringle
    Police may arrest without warrant if there is probable cause to believe a felony has been committed
  73. To determine whether there is probable cause to arrest
    • Examine events leading up to arrest
    • Decide whether the facts, viewed from the standpoint of the objectively reasonable police officer give rise to PC
  74. Ybarra v. IL
    Where there is a warrant to search a public place the warrant allows for entry into the area, but not to search the people unless than manifest PC bc PC must be particularized with respect to the person
  75. Wyoming v. Houghton
    People in cars are likely to be engaged in a common enterprise
  76. VA v. Moore
    Warrantless arrests for crimes committed in the presence of police are reasonable under constitution, and while states are free to regulate such arrests how they desire, state restrictions do not alter 4th amendment protection
  77. US v. Watson
    Cops, peace officers, and private citizens may arrest for a misdemeanor or felony committed in their presence, as well as for a felony committed outside of their presence if there is reasonable grounds for making the arrest
  78. Burden for consent to search
    On prosecutor to show reasonably and free given
  79. Test of voluntariness in consent
    Is the confession the product of an essentially free and unconstrained choice by its maker
  80. Schneckloth v. Bustamonte
    In determining whether will was overbourne in consent for search and seizure must assess totality of circumstances - cannot turn on single criterion
  81. Factors to consider when determining consent in search and seizure
    • Characteristics of accused : education; age; intelligence; experience
    • Details of the interrogation: length of detention; repeated and prolonged nature of questioning; use of physical punishment such as deprivation of food or sleep
  82. Consent to search in common authority
    • Common authority - mutual use of property by persons generally having joint access or control for most purposes
    • Consent can come from anyone with common authority
    • burden on state to establish common authority
  83. Illinois v. Rodriquez
    Reasonable when no common authority if : (objective test) the facts available to the officer at the moment warrant a person of reasonable caution to believe that the consenting party had authority over the premises
  84. Georgia v. Randolph
    When a co-occupant is physically present and refuses to permit entry, he prevails, and the warrantless search is unreasonable and invalid as to him
  85. Matlock
    Consent to search is valid from one co-occupant if the other is absent
  86. Scope of consent. Florida v Jimeno
    • If consent to search a vehicle, cop may open container inside vehicle if he reasonably believes the container contains the object of the search
    • Test is objective reasonableness
    • Scope of search is defined by its express object
    • suspect may also limit his consent
  87. Coolidge v. NH
    In some circumstances, a warrantless seizure by police of an item that comes within plain view during their lawful search of a private area may be reasonable under the 4th amendment
  88. Arizona v. Hicks
    • Probable cause, not reasonable suspicion is required to seize items in plain view
    • Taking action to view concealed parts of an apartment is a search
  89. Requirements for the plain view exception for seizures
    • Police lawfully made the intrusion or are in a position from which they can view a particular item
    • (characteristic by not required - Horton v. CA) Police must discover incriminating evidence inadvertently
    • Must be immediately apparent that the items may be evidence of a crime, contraband, or otherwise subject to seizure
  90. Test for warrantless search in exigent circumstances
    objective reasonableness - would a reasonable police officer from an objective circumstance believe entrance is necessary
  91. Exigent circumstances
    • Persons who are seriously injured or threat of injury - Brigham City v. Stuart
    • Imminent destruction of evidence - Ker v. CA
    • Fire - MI v. Tyler
    • Assist injured, threatened individual - Mincey v. Arizona
  92. Hot pursuit exception to warrant preference
    must occur prior to or immediately contemporaneous with arrest
  93. Vale v. LA
    Arrest on the street itself cannot provide it's own exigent circumstances to justify a warrantless search of house
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Criminal Procedure
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