Criminal Procedure

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Criminal Procedure
2015-07-02 23:30:19

criminal procedure terms
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  1. The Bill of Rights
    and The 14th Amendment
    The Bill of Rights in the Constitution originally applied only to action by the federal government.

    Through the 14th Amendment, portions of the Bill of Rights have been applied to the states also.

    Portions of the 4th, 5th, 6th, and 8th Amendments have been applied to the states.
  2. The Fourth Amendment
    Protects individuals against unreasonable searches and seizures.

    Under the 14th Amendment, the "Exclusionary Rule" and "The Prohibition Against Unreasonable Searches and Seizures," have been applied to the states
  3. Routine Stops
    Generally routine stops are permitted by the 4th Amendment:

    • Auto Stop 
    • Checkpoints
    • Stop And Frisk
  4. Automobile Stops
    the police may randomly stop autos if there is a reasonable suspicion or wrongdoing based on an objective Standard
  5. Checkpoints
    Police may set up fixed checkpoints to test  for compliance with laws relating to driving or if special law enforcement needs are involved, such as immigration
  6. Stop and Frisk
    • (Terry Stop)
    • Police may also stop and frisk individuals for weapons without arresting them when there is reasonable suspicion of criminal activity or involvement that is supported by articulable facts
  7. Requirements for a Warrant
    Warrants must be: issued by a neutral and detatched magistrate; based on probable cause; specific; executed by police; executed after a proper announcement (unless exigency); and executed within a reasonable time.
  8. Neutral and Detached Magistrate
    • The issuing magistrate cannot be one involved
    • with law enforcement.
  9. Warrants and Probable Cause
    A warrant must be based on a police officer's sworn affidavit, presenting adequate facts, to support a finding of probably cause.
  10. Warrants and Specificity
    A warrant must be reasonably specific.  The key is reasonableness.
  11. Execution of Warrants and Proper Announcements
    Police must knock and announce who they are and why they are there when executing a warrant unless there are circumstances dictating otherwise.  However, if police reasonably believe that knocking and announcing will lead to the destruction of evidence or create a  dangerous situation, they may dispense with knocking and announcing.
  12. Executing Warrants and a Reasonable Time
    Warrants must be executed within a reasonable time after they are issued or the probable cause may no longer exist
  13. Challenging Evidence obtained under Warrant Searches
    If a warrant includes a material false statement that was deliberately or recklessly included, the evidence obtained under the warrant is inadmissible. Like the Exclusionary Rule, the rationale behind not allowing evidence obtained under a defective warrant is to prevent overzealous officers from acting improperly. Consequently if the false information was not deliberately or recklessly included, it is admissible. Remember: Probative evidence should generally be admitted
  14. Good Faith Reliance on Invalid Warrant
    Evidence discovered by police in good faith reliance on a warrant that is subsequently shown to not have been based on probable cause is admissible.  Rationale: Again public policy favors preventing intentional or reckless misconduct by police. If they are acting in good faith, this policy is not advanced by suppressing probative evidence.
  15. Standing and a Reasonable Expectation of Privacy
    To raise a 4th Amendment claim regarding a search, one must either own the area searched or have a right to possess it
  16. Reasonable Expectation of Privacy
    Courts will look at the totality of the circumstances in determining whether or not there was a reasonable expectation of privacy.
  17. Warrants and Searches
    Police must have a valid search warrant in order to violate one's reasonable expectation of privacy, subject to the following exceptions:  plain view; consent; automobile exception; incident to lawful arrest; investigatory detentions; hot pursuit; danger of losing evidence; emergency; border searches; INS inspections; unreliable listener, uninvited listener; and open registers
  18. Plain View and Search Warrants
    A search warrant is not required for evidence in plain view. Rationale:  Remember, the 4th Amendment protects one’s reasonable expectation of privacy. Consequently, if evidence is in plain view, one does not have a reasonable expectation of privacy in it, and a warrant is not needed
  19. Search Warrants and Consent
    Police may institute a warrantless search if voluntary and intelligent permission is granted by one with authority to do so
  20. Automobiles and Warrant Searches
    If police have probable cause to believe the car contains evidence, and the evidence may be unavailable when a warrant is finally obtained due to the mobility of the car, a warrantless search may be conducted
  21. Warrantless Searches Incident to Lawful Arrest
    Whenever police make an arrest, they may search the arrestee and areas within his reach without probable cause
  22. Warrantless Searches and Investigatory Detentions
    If police detain an individual for investigatory purposes, they may frisk the detainee only if there is reasonable belief that the detainee is armed.
  23. Warrantless Searches and Hot Pursuit
    Police may search any place reasonable when in hot pursuit of a felon, without a search warrant.
  24. Warrantless Searches and the Danger of Losing Evidence
    there is a reasonable fear that evidence may be lost, police may seize it immediately without acquiring a warrant
  25. Warrantless Searches and Emergencies
    If there is an emergency, any area may be searched without a warrant.
  26. Warrantless Searches and Borders
    Warrants are not required for searches at national borders.
  27. Warrantless Searches and the Immigration and Naturalization Service
    The Immigration and Naturalization Service may check all the employees of a business to determine citizenships without a warrant.
  28. Warrantless Searches and Unreliable Listeners
    Individuals are under no obligation to refrain from repeating what another has told them, absent a privilege
  29. Warrantless Searches and Uninvited Listeners
    Speakers who do not make a good faith effort to protect their conversations cannot object to their admission into evidence by one who overhears.
  30. Warrantless Searches and Pen Registers
    Pen register records are admissible into evidence without any warrant requirements.
  31. Administrative Agencies and Warrants
    Generally, administrative agencies are subject to the same requirements as police, regarding warrants.
  32. Administrative Agencies and Exceptions to the Warrant Requirement
    Administrative agencies do not require a warrant for searches regarding the following:

    1.    students

    2.    airline passengers

    3.    probationers’ homes

    4.   government employees’ desks and files

    5.    contaminated food

    6.    highly regulated industries

    7.   general and neutral enforcement plans
  33. Warrantless Searches and Public School Children
    Public school officials are only required to have “reasonable grounds” to conduct searches on school campus
  34. Warrantless Searches and Airline Passengers
    Searches of airline passengers before boarding do not require a warrant.
  35. Probationers and Warrantless Searches
    Generally no warrant is needed to search a probationer’s home.
  36. Parolees and Warrantless Searches
    By statute, parolees are required to submit to warrantless searches of themselves, their property, and their residences
  37. Warrantless Searches and Government Employees' Desks and Files
    A reasonable search of desks and files of a government employee by an administrative agency will be allowed without a warrant if any one of the following three situations exist:

    • 1. work related,
    • 2. job related misconduct under investigation,
    • 3. search triggered by non-investigatory motives.
  38. Warrantless Searches and Contaminated Food
    Administrative agencies may seize food that is unfit for human consumption.
  39. Warrantless Searches and Highly Regulated Industries
    Certain highly regulated industries may be searched by administrative agencies without a warrant
  40. Warrantless Searches and General and Neutral Endorsement Plans
    Administrative agencies may hold inspections without a warrant pursuant to a general and neutral enforcement plan.
  41. Searches and Methods that "Shock the Conscience"
    Evidence that is obtained by means that “shock the conscience” will not be admissible.
  42. Criteria to Consider Regarding the "Shock the Conscience Test"
    In determining whether or not a method of obtaining evidence “shocks the conscience,” the following criteria will be weighed:

    • 1. How probable is it that the evidence will be found?
    • 2. How significant is the evidence?
    • 3. How shocking is the method?
    • 4. Are there alternative methods of obtaining the evidence?
  43. Seizures and Owners of Property Used in a Crime
    Owners of property used in the commission of a crime have no rights to due process prior to a seizure
  44. Forfeitures and Owners of Property Used in a Crime
    Owners of property used in the commission of a crime are entitled to due process prior to declaration of a forfeiture
  45. Exclusionary Rule
    Illegally obtained evidence is not admissible at trial.
  46. Fruit of the Poisonous Tree
    Evidence that would not have been obtained but for improper conduct is not admissible at trial
  47. Purpose Behind Exclusionary Rule
    There is a strong public policy behind protecting individual rights, and the best way to ensure that these rights are protected is to remove any “benefit” that may be obtained by violating them
  48. Situations Where Illegally Obtained Evidence May Still be Admitted
    Illegally obtained evidence may still be admissible if it was obtained through the free will of the defendant, it was obtained from an independent source, or it would have inevitably been discovered
  49. Free Will” of Defendant
    If the defendant gives evidence, of his own free will, that is not motivated by circumstances resulting from the illegal action, it will be admissible.
  50. Independent Source
    Evidence obtained from a source that is unrelated to the illegal act will be admissible
  51. Inevitable Discovery
    Evidence that would have been discovered without an illegal act is admissible.
  52. Exceptions to the Exclusionary Rule
    The Exclusionary Rule does not apply in the following situations:

    • 1. grand juries
    • 2. Impeachment purposes
    • 3. violations of internal agency rules
    • 4. civil proceedings
    • 5. good faith reliance
    • 6. harmless error
  53. The Exclusionary Rule and Grand Juries
    The function of a grand jury is to gather information, not to impose penalties. Consequently the defendant is not being “punished” as a result of the illegally obtained evidence. Consequently, the Exclusionary Rule does not apply to grand jury investigations.
  54. The Exclusionary Rule and Impeachment
    Witness credibility is always in issue, and an illegally obtained voluntary confession may be introduced to impeach a witness' testimony
  55. The Exclusionary Rule and Violations of Internal Agency Rules
    The Exclusionary Rule’s purpose is to protect constitutionally guaranteed rights, and incidental agency procedures do not fit this category.
  56. The Exclusionary Rule and Civil Proceedings
    Unless the proceeding involves punishment, illegally obtained evidence may be used in a civil proceeding
  57. The Exclusionary Rule and Harmless Error
    If the government is able to demonstrate beyond a reasonable doubt that the defendant would have been convicted without the admission of the illegally obtained evidence, the conviction will stand
  58. The Exclusionary Rule and Good Faith Reliance
    Suppressing evidence obtained in good faith would not achieve the goal of preventing law enforcement personnel from violating constitutional rights. Rationale: The whole concept behind the Exclusionary Rule is to prevent law enforcement personnel from violating constitutional rights. If they are acting in good faith, and the evidence is suppressed, the judiciary is losing probative information and gaining nothing.
  59. How to Assert the Exclusionary Rule
    At a pre-trial suppression hearing, conducted outside the presence of the jury, the issue of whether or not evidence was illegally obtained is decided.
  60. Defendants and the Exclusionary Rule
    The Exclusionary Rule may not prevent a defendant from presenting probative evidence.
  61. Arrest
    Placing an individual in custody where he is not free to leave. Note: Reasonableness is the key.
  62. Arrests and Warrants
    Warrants are not required for arrests in public places. Warrants are required for arrests in one’s home unless there are exigent circumstances
  63. Warrantless Arrests and Common Law
    Police officers may arrest without a warrant if there are reasonable grounds to believe that there has been a felony committed by the arrestee, or if the arrestee has committed a misdemeanor in the conscious presence of the officer.
  64. Detentions for Purpose of Investigation
    Police may detain a person for purposes of investigation if they have a reasonable suspicion supported by articulable facts that the detainee has information regarding criminal activity, without a warrant
  65. Investigatory Detentions vs. Arrest
    While one is not free to leave when being detained, if the detention is brief and specific, it is likely to be considered a detention rather than an arrest, and a warrant is not necessary.
  66. Automobile Stops
    Unless they have a reasonable belief that a law was violated by the driver of an automobile, the police may not stop an automobile
  67. Statutes Regarding Loitering
    Statutes aimed at preventing loitering, that require individuals to produce “credible and reliable” identification, are generally considered unconstitutionally vague, because it is not clear what exactly is “credible and reliable identification.”
  68. Confessions and Admissibility
    For confessions to be admissible, they must be reliable and must be obtained by proper means
  69. Confessions and Reliability
    Confessions must be voluntarily made by one who has the capacity to appreciate the significance of what is being done
  70. Confessions and the Proper Means
    The following should be considered in determining whether or not a confession was obtained under the proper means:

    • 1. Police action
    • 2. Miranda warnings
    • 3. Right to counsel
    • 4. Waiver
    • 5. Grand jury
    • 6. Public safety
    • 7. Impeachment
    • 8. Confessions made subsequent to invalid confessions
  71. Confessions and Police Action
    A confession that is not given in response to police action is admissible, as long as requirements for capacity and voluntariness are met. Rationale: The Exclusionary Rule has been established to protect the public from overzealous police activity. Consequently if police activity is not an issue, there is not a valid reason for excluding probative evidence.
  72. Confessions and Miranda Warnings
    Prior to a custodial interrogation, police must inform the person being interrogated that:

    • 1. He/she has the right to remain silent.
    • 2. Anything he/she says can and will be used against him/her in a court of law.
    • 3. He/she has the right to an attorney.
    • 4. If he/she cannot afford an attorney, one will be appointed for him/her, if he/she so desires.
  73. Confessions and the Right to Counsel
    After an individual has been placed under arrest, she has a right to counsel at any interrogation.
  74. Confessions and Waivers
    When an individual who has capacity and appreciates what she is doing, voluntarily waives her rights and makes a confession, it will be admissible.
  75. Confessions and Grand Juries
    Individuals testifying before a grand jury may not refuse to testify, or assert any right to counsel
  76. Confessions and Public Safety
    If the motive behind the questioning is an immediate fear for the safety of others, a confession may be admitted even though the questionee was deprived of her right to counsel and did not receive Miranda Warnings
  77. Confessions and Impeachment
    A reliable confession, that was voluntarily given before Miranda Rights were given, is admissible only for purposes of impeachment. Situations to look out for:

    • • If the confession was given under duress it is not voluntary, and thus inadmissible for any purpose.
    • • If the confessor lacked capacity or did not appreciate what she was saying, then the confession is not reliable and thus inadmissible for any purpose.
    • • Remember that any evidence may be excluded if it is more prejudicial than probative. Be sure to argue that a confession given under reliable circumstances may be very prejudicial, and it may be unrealistic to expect a jury to consider it only for purposes of impeachment and not as substantive evidenc
  78. Confessions Made Subsequent to Invalid Confessions
    If a confession is made while in custody, but prior to Miranda warnings, a subsequent confession made after Miranda warnings will not be inadmissible.
  79. Confessions and "Fruit of the Poisonous Tree"
    While it is unsettled, courts have held that physical evidence discovered from an invalidly obtained confession is admissible, even though the confession is not.
  80. The Juvenile Justice System
    The Juvenile Justice system is designed to rehabilitate rather than to punish minors.
  81. Juveniles and Delinquency Hearings
    At a hearing to determine delinquency, juveniles are afforded the same rights as adults, except there is no right to a jury
  82. Equal Protection, Indigency and Fines
    An indigent defendant cannot be imprisoned for his inability to pay a fine.
  83. Pretrial Hearings and Detentions
    Before significant restraints can be placed on one’s liberty, the defendant is entitled to a determination that probable cause exists
  84. What Constitutes a Probable Cause Determination
    Probable cause may be established by:

    • 1. issuance of an arrest warrant
    • 2. prior indictment
    • 3. informal hearing
  85. What Constitutes a Significant Restraint on One's Liberty
    The following are examples of significant restraints on one’s liberty:

    • 1. incarceration
    • 2. imposing bail
    • 3. pretrial restrictions
  86. Post Probable Cause Appearance
    Soon after probable cause is established the defendant is brought before a magistrate who will explain his rights, appoint counsel if necessary, and consider bail. Note: Speed and timing are significant. There is a strong public policy against holding a person for any length of time without a showing of probable cause, or when bail is appropriate. Consequently a probable cause hearing may frequently be incorporated into the appearance before the magistrate.
  87. Bail Issues
    Bail should reasonable; Failure to grant bail or the amount of bail can be appealed immediately; and Bail should almost always be granted unless a capital offense is involved.
  88. Bail Considerations
    The purpose of bail is not to punish, but only to insure that an individual will present himself for trial. In determining bail issues, courts will look at the totality of the circumstances. Things to consider are the defendants prior actions when granted bail, the severity of the crime, the potential sentence, and whether or not the defendant poses a threat to society.  Note: Generally, unless the defendant possesses a threat to society or is being charged with a crime that carries a potential for the death penalty, bail will be granted.
  89. Pretrial Incarceration
    Any reasonable security measure may be instituted even though the individuals incarcerated are awaiting trial
  90. Determinations of Probable Cause to Prosecute
    In some states and in the federal system, grand jury hands down an indictment, while in others, charges are filed by the prosecutor.
  91. Prosecutors and Disclosure
    Prosecutors must turn over to the defense evidence that tends to indicate innocence of the defendant.  Note: A prosecutor’s client is the public. The public’s  interests are best promoted by obtaining a just result. A “just result” is not a conviction of an innocent person
  92. Speedy Trial
    Defendants are entitled to a reasonably speedy trial
  93. Reasonableness and Speedy Trials
    In determining whether or not a defendant was given a speedy trial, courts consider the following questions:

    • 1. How long was the delay?
    • 2. Why was there a delay?
    • 3. Did the defendant object to the delay?
    • 4. Was the defendant prejudiced by the delay?
  94. When One is Entitled to a Speedy Trial
    Once an individual is arrested or charged, he is entitled to a speedy trial.
  95. Remedy for Violation of One's Right to a Speedy Trial
    If one’s right to a speedy trial has been violated. The case must be dismissed.
  96. Pretrial Personal Identifications
    After a suspect has been charged, he is entitled to have his attorney present if he is being subjected to a “show up” or a “line up.”
  97. Pretrial Non-Personal Identification
    Police are not required to allow a defendant to have her attorney present when witnesses are being shown her picture for purposes of identification.
  98. Physical Evidence of a Defendant and the Right to an Attorney
    When Police are obtaining physical evidence from a defendant, there is no right to counsel.
  99. Due Process Consideration and Identification
    In order for an identification to be inadmissible, it must be shown that it was rendered under circumstances that are unnecessarily prejudicial and that the identification was substantially likely to be unreliable
  100. Prejudicial Identifications
    Prejudicial pre-trial identifications may taint an in-court identification, making it inadmissible. However, in-court identifications are generally admissible because they are considered independent
  101. Test for Admissibility of a Potentially Tainted, In-court Identification
    The in-court identification must be based on factors other than the prejudicial identification
  102. Defendant's Burden and Tainted Identifications
    The burden is on the defendant to establish that the pre-trial identification was unreasonably prejudicial and unreliable
  103. Government's Burden and Tainted Identifications
    Once the defendant establishes a prima facia case, the burden is on the government to demonstrate that the in-court identification was based on a source independent of the pre-trial identification
  104. Competency and Standing Trial
    An individual is incompetent to stand trial unless she understands the facts presented against her, appreciates the charges against her, understands the proceedings, and is capable of working with her attorney to prepare her defense
  105. Judges and Competency of a Defendant
    A judge has an obligation to raise the issue of a defendant’s competency if it appears to be an issue
  106. Incompetent Defendants
    Incompetent defendants may be briefly detained in a mental institution to evaluate and treat. However, a longer detention may only be made pursuant to a civil commitment proceeding.
  107. Burden of Proof
    In a criminal case, the state has the burden of proving it’s case “beyond a reasonable doubt.”
  108. Plea Bargaining
    The defendant and the prosecution may enter into a binding contract whereby the defendant performs an act in exchange for the prosecution charging him with a lesser crime.
  109. Self-Incrimination
    People cannot be compelled to make statements that may tend to incriminate them.
  110. Prosecutor's Inability to Comment
    A prosecutor may not comment on a defendant’s failure to: testify, raise alibis raised in discovery,  nor produce alibi witnesses presented in discovery.
  111. Confrontation and Confession of a Co-Defendant
    A confession of a co-defendant that implicates the other defendant cannot be used unless the maker of the confession submits to be cross-examined.
  112. Confrontation and Hearsay
    Hearsay is an out of court assertion offered to prove the truth of the matter asserted. Hearsay violates the right to confront one’s accusers.
  113. Hearsay Exceptions
    Different jurisdictions recognize different exceptions to the general rule against admitting hearsay.
  114. Right to Trial by Jury
    Defendants are entitled to a trial by jury for serious offenses only
  115. Serious Offenses
    Serious offenses are those which carry a potential sentence of more than six months excluding juvenile proceedings
  116. Right to an Impartial Jury
    A defendant is entitled to a change of venue or a new trial, if it can be shown that the jury had been tainted by pretrial publicity
  117. Civil Contempt and Jury Trials
    When a witness is sentenced to jail until he testifies, he may spend more than six months in jail without a jury trial
  118. Post Trial Criminal Contempt and the Right to a Jury
    When one is sentenced, post trial, to more than six months in jail for purposes of punishment, a jury is required.
  119. During Trial Contempt and the Right to a Jury
    During trial, a judge may sentence an individual to more than six months in jail for contempt, as a punishment, without a jury
  120. Number of Jurors
    There must be at least six jurors on a jury.
  121. Right to a Jury of One's Peers
    A jury of one’s peers means that the actual jurors have been chosen from a group that is representative of the area
  122. Jurors and Political Views
    A juror may not be excluded because of his political views, unless they prevent him from following the court’s instructions
  123. Jurors and Race
    It is inappropriate at jury selection to raise the issue of race, unless it is a major part of the offense or the crime is an interracial capital offense
  124. Confrontation Clause
    A defendant has a right to confront witnesses
  125. Public Trials
    Trials are open to the public unless fairness dictates otherwise
  126. Double Jeopardy
    An individual may not be subject to trial more than once for the same offense.
  127. Double Jeopardy and Exceptions
    Exceptions to the rule against double jeopardy include appeals, hung juries, or when retrial is ordered
  128. Habeas Corpus
    A proceeding whereby a prisoner contests the constitutionality of her confinement.
  129. Requirements Prior to Habeas Corpus
    Prior to obtaining habeas corpus relief, an individual must demonstrate:

    • 1. either that he raised the objection at trial or had good reason for not raising it and
    • 2. the error was outcome determinative
  130. Lower Court Findings and Habeas Corpus
    Lower court findings of fact are generally deferred to unless there appears to be an abuse of discretion
  131. Appeals
    While the Constitution does not guarantee a right to an appeal, some states guarantee an automatic right to appeal in certain situations
  132. Appeals and Indigency
    Indigent defendants must not be denied the ability to appeal because of lack of funds.
  133. Post Appeal Retrials
    After a successful appeal, one may not be retried for a more serious offense.
  134. Probation and Parole Revocation and Right to Counsel
    There is no right to counsel at a probation or parole revocation hearing unless:

    • An already imposed sentence is made more severe,
    • the defendant makes a good faith argument that he did not violate his parole, or
    • the issues involved are too complex for a non-lawyer to advance.
  135. Cruel and Unusual Punishment
    Courts may not impose a sentence that is significantly disproportionate to the crime.
  136. Prison Regulations
    Prison officials may make any rule reasonably related to the safe and smooth operation of the prison.
  137. Prisoners and the Right to Privacy
    Prisoners have no reasonable expectation of privacy
  138. Due Process and Prison Discipline
    There is no right to a hearing unless a prisoner loses “good time” or is placed in solitary confinement.
  139. Rights of Prisoners
    Generally prisoners may not be deprived of rights unless they affect safety or the smooth operation of the prison
  140. Post Completion of Sentence Punishment
    States may deprive felons of the right to vote and hold office even after their sentences have been fully served