Crim Pro

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  1. What is due process?
    Stemming from the 14th amendment, it say that no state shall deprive a person of life, liberty or property without the due process of law.
  2. What does the 4th amendment say about search and seizure?
    The rights of people to be secure in their houses, persons, papers and effects agaisnt unreasoanble searches and seizures shall not be violated, and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.
  3. What are the four types of police contacts?
    • Consesual stops: do no implicate the 4th amendment
    • Brief terry-type stop: requires reasonable suspicion.
    • Full blown arrest or search- need probable cause and a warrant or warrant exception
    • administrative/special needs seizure: must be reasonable
  4. What is the standard for when a person is seized? Special rule in small spaces?
    When an individual has been restricted in his movements, when the reasonable person does not feel free to move or leave Terry test. In small spaces, not about restriction of movement, but whether a reasonable person would feel free to terminate the encounter. Look at the totality of circumstances. Bostick test
  5. What is the rule for seizure in chases?
    Must actual be physically restrained or submit to a show of police force to be seized.
  6. Who is seized in a routine traffic stop?
    Both the driver and passengers are seized.
  7. What is the requiement for a minor league, terry stop search
    Reasonable, articulable suspiscion of a weapon
  8. What are exigent circumstances?
    Circumstances that allow an officer to do a full blown search or seizure(arrest)
  9. What kinds of information must the officer draw upon for deciding whether a terry stop is reasonable?
    Objective observations, information from police reports, modes and pattersn of law breakers, can draw upon officer training and experience. High crime areas can also be a reasonable factor. Reliable hearsay as well. Can also stop people fitting a criminal description.
  10. When does the right to frisk occur during a stop?
    It is immediate and automatic if it exists at all, no need to question first if the answer could be a bullet.
  11. What is the minnesota v. Dickerson standard for frisking.
    Can only take contraband based on plain touch or feel, no continued manipulation allowed. If it's not a weapon, and you continue to manipulate it to figure out what it is, that's a violation of terry. only if you can tell by plain touch that it's contraband may you remove it.
  12. Where does the weapons frisk extend to in regards to homes and cars?
    Can do weapons sweeps of passenger areas of car where weapons might be, can search house for immediate dangers, must be places for persons that can harm you, so only people sized areas.
  13. What is a dog sniff not?
    a search
  14. What is and isn't allowed in terms of people in places being searched?
    Can detain them for the duration of the search, but can't search them without reasonable suspiscion.
  15. What are the factors that turn a terry type stop into a full blown arrest requiring probable cause?
    Forcible movement, long detention (for the circumstance), isolation, unreasonable delay and lack of diligence.
  16. What is the gates standard for probable cause?
    Looking at the totality of the circumstances, looking for things like predictive details, the basis of knowledge, and the veracity of the claims. Must be, based on totality of circumstances, a fair probablity that a crime has been committed or that contrabend or evidence of a crime will be found in that place.
  17. Who can the officer arrest when he finds drugs in a car?
    as long as there's no reason to believe it's a particular persons, he can arrest everyone who might have had access to the compartment it was found in.
  18. When does the officer have the authority to arrest without a warrant for minor criminal offenses?
    When the acts are committed in his presence.
  19. Can you go into a home to make an arrest without a warrant?
    No, warrant or exigent circumstances required.
  20. What is the steageld principle in third party home arrests?
    When you arrest someone in a third persons home on an arrest warrant, you can't use anything found in that home against the third party.
  21. What are the factors for determining exigent circumstances?
    • degree of urgency involved; amount of time needed to get a warrant;
    • whether evidence is about to be removed or destroyed; danger at the
    • site; knowledge of the suspect that police are on his or her trail (hot pursuit of fleeing felon);
    • and/or ready destructibility of the evidence.
    • Severity of the underlying offense.
  22. How long can the police seizure a houses residents while waiting for a warrant to prevent evidence destruction?
    Unknown, but 19 hours has been said to be ok if the police are trying to diligently get a warrant. The issue is underlying reasonableness of the seizure.
  23. What is the knock and announce rule?
    Must knock and announce presence and purpose, except when the knocking would be dangerous, futile, or allow destruction of evidence. no bright line rule for how long you must wait, must be reasonable, though.
  24. According to Katz, what items are subject to the 4th amendment protection and what items aren't.
    What a person knowingly exposes to the public, even in his own home or office, is not subject to fourth amendmenet protection. What a person seeks to preserve as private, even in an area accessible to the public, is constitionally protected. Subjective and objecitve elements. Must intend to keep private, society must accept that privacy.
  25. What is the search rule for open fields? for curtlidge?
    No expectation of privacy in an open field, so no searches. Area immediately surrounding the home is an area where private activities are expected to occur, so it has a higher expectation of privacy. ( must look at whether it's enclosed and what use the area is put to)
  26. What is the helicopter camera rule?
    Any technology that allows observation that is readily avaliable to the public is not a search when used by the police to observe areas the public has access to.
  27. When does the technology rule not apply?
    When it involves observation of the inside of the home, which is considered intimate.
  28. What are the warrant requirements?
    Must be by neutral and detached magistrate, must describe place to be searched and perons and places to be seized.
  29. What are the rules for searches incident to arrest
    Can search when arresting regardless of the seriousness of the offense, arrest without more does not give right to search entire premises where they were arrested. May only search places they can reach and where people can be hiding. Can only search a vehicle if they are within reaching distance of the passenger compartment or you reasonably believe there's evidence related to the crime of arrest.
  30. What is the vehicle exception?
    You do not need a warrant to search a vehicle, only probable cause. Applies to anything with ready mobility, even motor homes.
  31. What is the rule in consent searches?
    Totality of the circumstances test, was the consent voluntarily given or the result of duress or coersion. (look at vulnerability based on state of mind, behavior of officers, education and intelligence level, threats, shows of authority, envorionment request was made in) Suspect does not need to be told of right ot refuse. Officer must only show acquiesence of the search/
  32. What is the common authority rule of consent?
    Did the person have common or apparent common authority over the premises to allow consenting to the search. Common authority is having joint access of control. If one says yes, the other no, must go with the no.
  33. What is the plain view exception?
    If an officer is lawfully present, had lawful right of physical access, and the incriminating character of the item is immediately apparent, the officer has probable cause to seize the item.
  34. What is the rule for administrative searches?
    When a search is reasonable but not based on individualized suspiscion, there's a balancing test between the government's interest and the persons expectation of privacy.
  35. What's the rule for inventory searches?
    As long as the standard police procedures are followed and the procedures allow very little discrestion, then they are allowed.
  36. What kinds of searches can occur at borders?
    Whatever the fuck kind they want. Absolutely no suspiscion needed for border searches.
  37. What are the rules for school searches?
    Searches of students are justified at inception if there are reasoanble grounds to believe the search will turn up evidence of violations of law or school rules. Must taior the search to the seriousness of the suspected offense and child sex/age. (no strip search for cell phones) Students who sign up for extra cirriculars are subject to a higher search standard.
  38. What is the exclusionary rule, when does it not apply?
    The exclusionary rule is the rule that disqualifies unlawfully procured evidence from trial. only applies in the criminal trial context. Doesn't apply at parole hearings, grand jurys, civil proceedings, immigration hearings. Does however, apply at forefiture hearings (quasi criminal in nature, property is in jeopardy)
  39. Does excluionary rule apply to knock and announce violations?
    No, benign violations that don't rise to the level of exclusion.
  40. Who can challenge an illegal search?
    Only the person who's personal fourth amendment right were intruded upon by police. In a house setting, mere presence doesn't give you fourth amendment protections there, must be an overnight guest.
  41. What is the good faith exception to the exclusionary rule?
    Evidence seized in good faith, merely illegal due to some clerical error, is not subject to the excluionary rule. Must not be the fault of the officer conducting the search, though.
  42. What is the inevitably discovery exception to the exclusionary rule?
    If there is already an investigation in progress and you can prove that the evidence illegal discovered would have been discovered anyways by that in progress investigation, then the exclusionary rule. Must prove by proponderence of the evidence.
  43. When can illegally obtained evidence always be used in a criminal trial?
    For impeachment purposes, when someone is being dishonest on the witness stand.
  44. What is the fruit of the poisnous tree doctrine?
    Evidence that is discovered as a result of illegally obtained evidence is not admissible unless it is sufficently attenuated from the illegal evidence.
  45. What is the fruit rule for an illegal home search?
    Even if what you've seen illegally is what gets you the warrant, the warrant makes all evidence you hadn't already seen before the warrant that you then seize legal. If you can get the warrant without what you saw inside, everything is up for grabs once you get the warrant.
  46. What is the indepndent source rule in fruit?
    If you can obtain the information from an independent source seperate from the illegal evidence, then you can purge the evidence of the taint.
  47. What is the brown-dunaway rule in fruit?
    There's a totality of the circumstnaces test. The more serious the exploitation of the illegal evidence, the more difficult to purge the taint.
  48. What is the fruit rule for witnesses?
    Witnesses are generally easier to find than evidence, so they usually aren't excluded as fruit.
  49. What is the Miranda rule?
    Must inform the suspect of his rights not to testify and his right to counsel. Suspect must waive them in a knowing, intelligent, and voluntary manner for questioning to be valid.
  50. What is the test for voluntariness?
    Totality of the circumstances test (look at age, physical condition, length of interrogation, depravation of needs, threats, advisement of rights) Must be excessive misconduct, not merely a scary situation. Merely misleading is not enough, must shock the conscience.
  51. When must Miranda be given?
    Only when the police choose to conduct a custodial investigation.
  52. What is the custody rule for children? for prisoners?
    Children feel compelled to answer police, so their standards for custody is lower. Prisoners are only incustody when in direct police control, not day to day prison life.
  53. What constitutes interrogation in Miranda setting?
    Express questioniong or words or actions on part of the police the police know are reasonably likely to liciit an incriminating response from the person.
  54. Must an undercover cop give a Miranda warning?
    No, Miranda warnings only apply to situations where interrigation is being done by known police officers.
  55. What kind of evidence must the police be seeking for Miranda to apply?
    Testimonial evidence or communicatve evidence, not physical evidence.
  56. what is required in giving a miranda warning?
    Only the general intent of hte rights is necessary, not the actual verbiage.
  57. Have you invoked miranda right by remaining silent?
    No, silence neither waives nor revokes. By remaining silent, you're showing that you understand the right. But later speaking, you're showing that you've waived it.
  58. What do you need to show a KIV waiver?
    Must show that it was a free and deliberate choice, and that you understood the nature of hte right being abandoned and the consqueneces of the right to abandon it.
  59. What are the requirements for resumption of questioning after your miranda rights have been invoked?
    must immediately cease the interrogation, suspend questioning entirely for a significant period, and give a fresh set of miranda warnings at outset of second interrogation.
  60. May police reinitiate after right to counsel is invoked?
    No questioning without counsel present. Only exception is if you're released back to your normal life for 14 days, they can attempt to reinitiate.
  61. What's the public safety limitaiton of miranda?
    If there's an overriding consideration of public safety, it can justify an officers failure to provide Miranda warnings before questioning about a weapon or some other dangerous object.
  62. What does fruit not apply to?
    Miranda violations.
  63. when can prosecutors use Miranda violations?
    In impeachment at trial.
  64. What are the rules for grand juries?
    Only required at federal level, no obligation to present exculpatory evidence.
  65. What does double jeopardy mean?
    Can't be put in jeopardy of life or limb twoce for same offense under same soverign (only in jeopardy of life and limb when jury is empaneled and sworn in, or in bench trial, when first witness is sworn in)
  66. What is the blockburger test for double jeopardy?
    Where the same act or transaction constitutes a violation of two statutes, the test to be apply to detemrmine whether they are two offenses or one is whether each provison requires proof of a fact that the other doesn't Basically, each must have one elmeent the other doesn't contain.
  67. What is the rule for mistrials?
    defendant motion for a mistrial does not invoke double jeopardy unless goaded by prosecutor misconduct. Prosecutors motion does invoke unless goaded by defense misconduct.
  68. What's the indegent defendant rule?
    If it's a felony or a case where you are actually sentenced to a term of imprisonment, you are required an the right to an appointed lawyer if you're indigent.
  69. When do you have a right to a lawyer during interrogation?
    Once adverserial proceedings have begun against you. (preliminary hearing, indictment, information, arraignment.) At that point, can't deliberately illicit any infomration from the protected invididual without their lawyer present.
  70. When are you protected by the 6th amendment right to counsel?
    At the critical stages of a trial (those where the presence of an attorney is essential to the right of a fair trial)
  71. How specific is the 6th amendment?
    It's offense specific, if there's no charge in that crime, then questioning about it does not violate 6th amendment.
  72. When are unnecessarially suggestive identifications excluded by due process?
    When the government creates the unnecessarially suggestiveness.
  73. What is the hidden right in the 6th amendment?
    the right to effective assistance of counsel. You can get a conviction overturned and retried if you did not have effective assistance of counsel. Standaard is that counsel must have been so bad that it underemined the proper funciton of hte adversial process to the point that the trial did not produce a just result. But for errors, different outcome.
  74. What are the circumstances where we can assume lack of effective assistance of counsel?
    Complete denial of counsel, denial at a critical stage, counsel entirely fails to subject the prosector's case to meaningful adverserial testimony
  75. What is the rule for juries?
    Fundemental right, only if crime is punishable by 6+ months of improsonment. Jury must be at least 6 people. Does not have to be unanimous constitionally.
  76. What is the right to a speedy trial?
    M8ust be given a trial in a reasonable length of time. Barker balancing test: Length of delay, reason for it, when defendant asserted their right, prejudice to defendant.
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Crim Pro
2012-04-13 09:45:33
Cooley Criminal Procedure

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