Crim Pro

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Author:
johncburt
ID:
193997
Filename:
Crim Pro
Updated:
2013-02-13 21:06:20
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Criminal Proceedure Bar review
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Bar Review Criminal Proceedure
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  1. Constitutional Amendments Protecting Defendants- (4)
    • 1. 4th - Search and Seizure
    • 2. 5th - Self Incrim, Double Jeopardy
    • 3. 6th - Speed trial, jury, confront W, Counsel
    • 4. 8th - Cruel and Unusual Punishment
  2. Constitutional Amendments - What is the Exclusionary Rule
    Remedy for D who was a V of unlawful search and seizure or coerced confession. The "Fruit of the Poisenous Tree" also excluded.
  3. Constitutional Amendments - When does Exclusionary Rule not apply (6)
    • Exclusionary Rule Does not apply to:
    • 1. Grand Juries
    • 2. Not applicable in Civil Cases
    • 3. Must violate Consitution or Fed Statute
    • 4. Not available to revoke parol
    • 5. Not for impeachment purposes
    • 6. Does not exclude "Fruit of Poisenous Tree" for Miranda violations - Unless Bad Faith.
  4. Constitutional Amendments - What question do appelate courts ask for Exclusionary Rule Violations After Conviction
    Only reversal if D would not have been convicted "But For" the wrongfully obtained evidence.
  5. Constitutional Amendments - 4th Amendment - When is an Arrest Warrant Necessary
    • Generally, can make an arrest in any public place with Probable Cause.
    • Must have a warrant to arrest someone in his home
  6. Constitutional Amendments - 4th Amendment - When can you have Investigatory Detentions (4)
    • 1. Can breifly detain even if they lack PC.
    • 2. Must have Reasonable Suspicion + Articulable Facts (hunch is not enough). Totality of circumstances.
    • 3. Automobile Stops - Just need Reasonable Suspicion that law has been violated
    • 4. Check Points and Dogs OK
  7. Search and Seizure - 3 Step Analysis to determine if was lawful
    • 1. Step 1: Does D Have a Reasonable Expectation of Privacy
    • 2. Step 2: Was Search Conducted Pursuant to Warrant
    • 3. Step 3: Was there an Exception to a Warrant
  8. Search and Seizure - Step 1 of 3 Analysis Was there a Reasonable Expectation of Privacy - 4 Instances
    • Must have an expectation of privacy for 4th Amendment standing.  Look for:
    • 1. Owned or right to possess property searched
    • 2. Place searched was his home even if no right to possess
    • 3. He was an overnight guest
    • 4. Sometimes if you own the property seized
  9. Search and Seizure - Step 1 of 3 Analysis- Things you Do Not have Reasonable Expectation of Privacy - (6)
    • 1. Sound of Voice
    • 2. Handwritting
    • 3. Paint and location of car
    • 4. Public, bank records
    • 5. Areas outside home (barns)
    • 6. Garbage
    • 7. Land visable from air
    • 8. Smell of lugage
  10. Search and Seizure - Step 2 of 2 Analysis- Was there a Valid Search Warrant - 2 Requirements
    • Two Requirements:
    • 1. Probable Cause - Fair Possibility that there is contraband. Must submit affidavit
    • 2. Particularity- Must state place to be searched and what items
  11. Search and Seizure - Step 2 of 3 Analysis- Was there a Valid Search Warrant - Attacking the Warrant (3 Elements), what can overcome attack
    • Must show all 3:
    • 1. False Statement
    • 2. Intentional or Reckless
    • 3. Material to finding PC

    ** Good faith will overcome Attack
  12. Search and Seizure - Step 3 of 3 Analysis- Exceptions to Search Warrants (6)
    • 1. Search Incident to Arrest
    • 2. Automobile Exception
    • 3. Plain View
    • 4. Consent
    • 5. Stop and Frisk (Terry)
    • 6. Hot Pursuit
  13. Search and Seizure - Step 3 of 3 Analysis- Exceptions to Search Warrants - Search Incident to Arrest
    Cops can search D's Grab Area for weapons, and disposable evidence, including interior of car
  14. Search and Seizure - Step 3 of 3 Analysis- Exceptions to Search Warrants - Automobile Exception
    Can Search Entire Car if PC arises before the Search. Can search for the item you have PC for (cannot search small box for stolen TV)

    Must conduct the search before Cop arrests the person.
  15. Search and Seizure - Step 3 of 3 Analysis- Exceptions to Search Warrants - Plain View
    Cop can seize contraband that is in their plain view of some place they are legitimately present
  16. Search and Seizure - Step 3 of 3 Analysis- Exceptions to Search Warrants - Consent, who can consent
    • 1. Voluntary and Intelligent
    • 2. If two people have equal right to property, one person can consent, unless the other objects
  17. Search and Seizure - Step 3 of 3 Analysis- Exceptions to Warrants - Stop and Frisk, what do you need, scope of search
    • Must have reasonable, articulable suspicion.
    • Pat Down is for weapons
    • Plain feel contraband can be seized
  18. Search and Seizure - Step 3 of 3 Analysis- Exceptions to Warrants - Hot Pursuit
    Cops w/in 15 Minutes of the scence then it is in hot pursuit.

    When evidence likely to disappear, like blood test with DUI. Scope is broad if suspect runs into his house, can follow and search whole house.
  19. Search and Seizure - Step 3 of 3 Analysis- Exceptions to Warrants - Public School Searches: drug tests, backpacks, grounds
    • Drug Test randomly children in extra-carricular activities
    • Warrantless searches of public school children's purses and backpacks
    • Reasonable if moderate chance of finding evidence of wrongdoing; Reasonably related to scope of search; Not excessivley intrusive
  20. Search and Seizure - Wiretapping, does it require warrant
    Requires Warrant
  21. 5th Amendment - Self Incrimination - Miranda Warnings (4 Rights RSRC)
    • 1. To remain silent
    • 2. Statements will be used against you
    • 3. Right to an attorney
    • 4. Can't afford, attorney will be provided
  22. 5th Amendment - Self Incrimination - Miranda Warnings - When required
    • Custodial Interrogation -
    • Custodial: Not free to leave.  Police car, home, hospital.
    • Interrogation: Illicit incriminating responses
  23. 5th Amendment - Self Incrimination - Miranda Warnings - Waiver of Miranda, what do you need (4 things) 
    • Knowing
    • Voluntary
    • Inteligent
    • Totality of Circumstances
  24. 5th Amendment - Self Incrimination - Miranda Warnings - Invoking Right to remain silent, how, new crime
    • Unambiguous
    • Police can reinitiate at a later time by giving new Miranda and can't be about the same crime
  25. 5th Amendment - Self Incrimination - Miranda Warnings - How to Invoke Right to Counsel, can D reinitiate
    • Unambiguous Request
    • Must Cease until an attorney provided.
    • D may reinitiate
  26. Confessions - 5 Step Analysis (voluntary, custody, interrogation, miranda, Invoke RTcounsel)
    Step 1: Was Statement Voluntary - If No then (inadmissable) if Yes then next step.

    Step 2: Was D in Custody or Charged if No then (admissable), if Yes then next step.

    Step 3: Was statement in response to interrogatory if No (admissable) if Yes then next step. 

    Step 4: Were Miranda Warnings given, if No (inadmissable), if Yes then next step.

    Step 5: Did D Waive his right to counsel, if No then (inadmissable) if Yes then (admissable).
  27. Confessions - involuntary - Analysis, whose conduct
    Look at the totality of circumstances to determine if there is Official Compulsion (look at cops not D)
  28. Right to Counsel - 5th Amendment (5 is earlier than 6) - When Does it attach
    The 5th amendment right to counsel is court made, it attaches at Miranda unlike 6th amendment attaches at judicial proceedings
  29. 6th Amendment (6 is later than 5)- Right to Counsel - When does it attach
    • Whenever judicial proceedings have begun
    • It is a specific right for a specific charge, so if he invoked on a prior charge does not count on the current charge
    • As oppossed to 5th amendment court made rights that attach at Miranda
  30. Pre-trial Identifications - When do/dont you need counsel
    • D has a right to counsel for line-ups after he has been charged. 
    • No right to counsel when police show V photographs
  31. Pre-trial Identifications - What constituional amendments can you use and what can you attack (6th and 14th)
    6th Amendment: Right to an attorney- Can attack Post Charge Line-ups.  Cannot attack writing samples, blood, fingerprints

    14th Amendment: Due Process.  Can challenge the ID as unecessarily suggestive and a substantial liklihood of mis-identification
  32. Identifications - Can you use In-trial ID if outside court ID is excluded
    Rarely excluded even if outside of court ID is excluded
  33. Pre-trial Proceedures - Probable cause hearing - When do you need one
    D can only be charges with PC.  If he was arrested pursuant to a warrant or a Grand Jury indictment then PC exists.  If not needs PC hearing.
  34. Pre-trial Proceedures - 8th Amendment Excessive Bail - Who does it apply to 
    • 8th Amendment of non-excessive bail only applies to Fed Gov
    • Most states constitutions provide a righ to bail
  35. Pre-trial Proceedures - Bail - When is bail Non-Excessive (2)
    • Danger; or
    • Risk of Running
  36. Pre-trial Proceedures - Bail - When is a bail order Appealable
    Bail issues are immediately appealable
  37. Pre-trial Proceedures - Grand Juries - Exclusionary Evidence, what is excluded
    No exclusionary rule in grand juries, they can see all evidence
  38. Pre-trial Proceedures - Prosecuter Duty to Disclose. what must he disclose and what happens if he doesnt
    • Prosecuter must disclose all exculpitory evidence. Failure to disclose is cause for a reversal if
    • Evidence is favorable to D and reasonable probability result would have been different if disclosed
  39. Trial - Right to Unbiased Judge - What is biased (2 instances)
    • Biased means:
    • 1. Financial interest
    • 2. Actual Malice against D
  40. Trial - Right to Jury - When is it required
    Whenever the maximum authorized sentence exceeds 6-mmonths in jail
  41. Trial - Unanimity of Jurors - When do you need unanomous vote to convict
    • Minimum jurors is 6.  If you only have 6 then it must be unanimous
    • There is no constitutional right to have 12 unanimous jurors, the SC has upheld 10 to 2 and 9 to 3
  42. Trial - Jury - Cross sectional requirement
    • You have a right that the jury pool reflect a fair cross-section of the community
    • You have no right for the impaneled jury to be a cross-section
  43. Trial - Jury - Premptory challenges, what reasons can you exclude a juror
    The right to exclude a jurror for any reason.  But, race or gender cannot be the primary factor
  44. Trial - When does D's Right to Counsel apply
    D's right to counsel applies to all criticle stages of a prosecution
  45. Trial - Right to Counsel - ineffective counsel, what does D need to prove (2)
    • Must be a deficiency that "but for" the deficiency the result would have been different
    • Must specify particular errors
  46. Trial - Right to self-representation, what factors does the judge look at (3)
    • D has right to defend himself if the waiver is:
    • 1. Knowing
    • 2. Intelligent
    • 3 He is competent to proceed pro se.
  47. Trial - Right to confront witnesses, two exceptions
    • D has the right to confront, two exceptions:
    • 1. Serves an importan public purpose, like child witnesses, so long as proceedures to protect D.
    • 2. D that is disruptive can be removed from courtroom
  48. Guilty Please and Plea Bargains - What must a judge do on the record before accepting the plea bargain (3)
    • Must go on the record and make sure D understands:
    • 1. Nature of charge
    • 2. Tell D the maximum and minimum manditory penalty
    • 3. Tell D he has a right to a jury
    • 4. All must be on record
  49. Guilty Please and Plea Bargains - What is good cause to withdraw plea after sentencing (4)
    • 1. Plea was involuntary (mistake in plea taking ceremony) - Not enough that P threatened a more serious crime
    • 2. Lack of jurisdiction
    • 3. Ineffective assistance of counsel
    • 4. Failure for prosecutor to keep an agreed upon plea bargain
  50. Death Penalty - What constitutional reasons can a statute or process be invalidated (4)
    • 1. A statute that does not allow D to give mitigating circumstances is invalid
    • 2. There can be no automatic category for death penalty
    • 3. Statute cannot limit mitigating factors, all relevant mitigating evidence must be admissable
    • 4. Only a jury may determine aggrivating circumstances justifying death
  51. Double Jeopardy - When does it attach at jury trial, bench trial, civil trial
    • 1. Jury Trial: When jury is sworn
    • 2. Bench trial: when first witness is sworn
    • 3. Jeopardy does not attach for civil trials
  52. Double Jeopardy - Exceptions permitting retrial (4)
    • 1. Hung Jury
    • 2. Mistrials: for necessity, like needs medical help
    • 3. After Successful Appeal (but cannot be retried for a more serious crime
    • 4. D's breach of plea bargain
  53. Double Jeopardy - Define
    You cannot be tried for any lessor included offenses (larceny) nor can you be tried for the greater offense (battery) if originally charged for the lesser charge.

    Can be tried for same crime by different soverigns
  54. 5th Amendment - Right against self incrimination - When can it be inkoked (Plead the 5th)
    It applies to anyone, in any type of proceeding, when asked under oath, and the response could incriminate him
  55. 5th Amendment - Right against self incrimination - When must you assert the right
    • Must assert the privledge the 1st time it is asked under oath or you waive the right for all subsequent prosecutions
    • Must assert the privledge in civil proceedings to preserve the right for criminal proceedings
  56. 5th Amendment - Right against self incrimination - Prosecutorial Conduct in court
    • Prosecutor cannot comment on D's failure to testify or choosing to remain silent after miranda.
    • Exception: Prosecutor can say something if D's attorney tells the jury that D was not allowed to explain his side of things
    • The harmless error test is used to determine if the slip was fatal
  57. 5th Amendment - Right against self incrimination - Ways it can be eliminated (3)
    • 1. Under a grant of immunity
    • 2. No possibility of incrimination (past SOL)
    • 3. Waiver by taking the stand - as to all legitimate subjects of cross-examination

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