Criminal Procedure

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conorbw
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88605
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Criminal Procedure
Updated:
2011-07-23 21:19:21
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Criminal Procedure
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Criminal Procedure
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  1. MBE Preview
  2. Exclusionary Rule
    Illegally obtained evidence is illegal

    Note - this doesn't apply to grand jury proceedings. Motions to exclude illegally obtained evidence is premature in grand jury proceedings and will be admitted.
  3. Inevitable Discovery Rule
    Exception to the Exclusion Rule

    Evidence is admissible if the police would have inevitably discovered the evidence regardless of whether they acted illegally
  4. Reasonable Expectation of Privacy
    First, you must have standing to challenge the search and seizure

    For instance, the passenger in a car does not have standing to challenge a search and seizure of the truni because he has no reasonable expectation of privacy

    The highest expectation of privacy is at your home. This extends to the curtilage.

    No privacy interest in the smell of one's luggage.

    Officer at a routine traffic stop has the right to order the driver and passengers to get out of the car.
  5. Open Fields Doctrine
    Areas outside the curtilage are subject to police entry and search; considered to be public and unprotected by the Fourt Amendment
  6. Search and Seizure by School Officials
    School officials only need reasonable grounds to justify searches; do not need a warrant or probable cause.
  7. Stop & Frisk
    Police can briefly detain someone for investigative purposes if they have reasonable suspicion of wrong doing
  8. Cases in which a warrant is not necessary
    (1) Search incident to a lawful arrest (does not extend to the search of a car trunk)

    (2) Plain view

    (3) Exigent Circumstances
  9. Miranda Warnings
    Requires the defendant (1) to be in custody; and (2) to be interrogated.

    Does not apply to spontaneous statements made outside of interrogation.

    Problems with the confession if it occurs long after the Miranda warnings were given

    No affirmative obligation to deny conspirator's admissions; no adoptive admissions while the defendant is in custody.
  10. Sixth Amendment Right to Counsel
    A post-charge line-up is a critical stage of prosecution where the defendant has a Sixth Amendment right to counsel.Sixth Amendment rights attach as soon as the accused is in sight of the identification witnesses. Thus, defendant's attorney has to be present from the very beginning.
  11. MBE Lecture
  12. Exclusionary Rule
    evidence that is the result of illegal search or a coerced confession can can be excluded from the subsequent criminal prosecution
  13. Limitations of the Exclusionary Rule
    • Does not apply to grand jury proceedings. a grand jury W may be compelled to testify based on illegally seized evidence.
    • Exclusion is not available as a remedy in civil proceedings.
    • In order to qualify for exclusion, the search must have either violated the federal
    • Exclusion is not available in parole revocation proceedings
    • Illegally seized real or physical evidence (including Miranda violations) can be admitted to impeach the credibility of defendant's testimony
    • Does not apply to violations of the knock-and-announce rule in the execution of search warrants.
  14. Fruit of the Poisonous Tree Doctrine
    • all illegally seized evidence as well as all evidence obtained or derived from the police illegality is excluded.
    • 3 ways to break the chain b/t an illegal police action and evidence:
    • 1) independent gov't source for that evidence
    • 2) inevitable discovery
    • 3) Intervening acts of free will by D
  15. Harmless Error Rule: Exclusionary rule and convictions
    • conviction will not necessarily be overturned b/c improperly obtained evidence was admitted
    • The court will apply a harmless error rule: conviction will be upheld if the conviction would have resulted despite improper evidence.
  16. Fourth Amendment Generally
    Protects against unreasonable searches and seizures
  17. Arrests & Detentions
    • arrests require probable cause.
    • Warrants are not required for arrests in public places.
    • Non-emergency arrests in an individual's home does require an arrest warrant.
    • Unlawful arrest, by itself has no impact on a subsequent criminal prosecution
  18. Station House Detention
    police need probable cause to arrest and compel D to come to the police station for either finger-printing or interrogation.
  19. Terry Stops
    • Justified by reasonable suspicion supported by articulable facts.
    • Reasonable suspicion is dependent on the totality of the circumstances.
  20. Terry Stops & Automobiles
    Rule: Police can stop if they have reasonable suspicion that the law was violated.

    Exception: checkpoints for drunk drivers and border checks.

    Police Dogs: during a routine traffic stop, a sniff is not a search so long as the police don't extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.
  21. Search & Seizure Analysis
    • 1) Governmental Conduct
    • publicly paid police - on or off duty - as well as private persons acting at the direction of the police
    • 2) Reasonable Expectation of Privacy (Standing)
    • 3) Did the police have a valid search warrant
    • 4) if the warrant is not valid, does the officer have a good faith defense that saves the defective search warrant
    • 5) If not, does an exception to the warrant requirement apply?
  22. Search & Seizure: Is there government conduct
    • publicly paid police (on or off duty) and private individuals acting at the direction of the police satisfy the requirement.
    • Privately paid police actions do not constitute governmental conduct unless deputized with power to arrest.
  23. Search & Seizure: Reasonable Expectation of Privacy
    • Automatic Categories of Standing:
    • 1) if you own the premises
    • 2) you live on the premises searched
    • 3) overnight guests
    • Sometimes: if you own the property seized, you have a reasonable expectation only if you have a reasonable expectation of privacy in the item or area searched.
    • No standing: anything held out to the public:
    • 1) sound of your voice
    • 2) style of handwriting
    • 3) paint on the outside of your car
    • 4) account records held by a bank
    • 5) monitoring the car on a public street or in your driveway
    • 6) anything that can be seen across open fields
    • 7) anything that can be seen flying over public air space
    • 8) odors emanating from your luggage or car
    • 9) garbage set out on the curb for collection
  24. Search & Seizure: Valid Search Warrant
    • 2 requirements: probable cause and particularity
    • Probable Cause: a fair probability that contraband or evidence of a crime will be found in the area searched.
    • Particularity: warrant must state with particularity the place to be searched and the things to be seized.
    • Use of Informants:
    • If probable cause is based on informant information, its sufficiency is determined by the totality of the circumstances
    • An informant's reliability/credibility and basis of knowledge are all relevant factors in making this determination
    • valid warrant can be based in-part on informant's anonymous tip.
  25. No-Knock entry execution of a warrant
    • requires exigent circumstances, which exist if:
    • knocking and announcing would be dangerous, futile, or would inhibit investigation (destruction of evidence)
  26. Search & Seizure: Defenses to an invalid warrant
    • General Rule: officer's good faith reliance on a search warrant overcomes defects with the probable cause or particularity requirements.
    • Four Exceptions:
    • 1) affidavit underlying the warrant is so lacking probable cause that no reasonable police officer would have relied on it.
    • 2) affidavit underlying the warrant was so lacking in particularity that no reasonable police officer would have relied on it.
    • 3) police officer or prosecutor lied to or misled the magistrate
    • 4) magistrate is biased, and therefore wholly abandoned his neutrality.
  27. Search & Seizure: Exceptions to the Warrant Requirement
    • 1) search incident to a lawful arrest
    • 2) Automobile exception
    • 3) plain view
    • 4) Consent
    • 5) Stop & Frisk
    • 6) Evanescent Evidence
    • 7) Hot pursuit
    • 8) special needs searches
  28. Search incident to arrest
    • must be a lawful arrest
    • must be contemporaneous in time and place
    • Limited to the area in which D can procure a weapon or destroy evidence
    • Automobiles: Police can search the interior only if D is unseecured and can still gain access to the interior of the car or the police reasonably believe that evidence of the offense to be charged may be found in the vehicle.
  29. Automobile Searches
    • Police must have probable cause.
    • After they have probable cuase, they can search the entire car, including packages that could reasonable contain probable cause to look for.
  30. Terry Stops
    • Reasonable suspicion based on articulable facts.
    • Cops can search for weapons.
    • Autos: if a vehicle is properly stopped for a traffic violation, and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may (1) frisk; and (2) search the vehicle so long as it is limited to the areas in which a weapon may be placed.
  31. Evanascent Evidence
    Evidence which might disappear quickly if the police get a warrant.
  32. Hot pursuit
    if police are not within 15 minutes behind a fleeing felon, it is not a valid hot pursuit exception
  33. Inventory searches
    prior to incarceration, police can search the arrestee's personal belongings and/or vehicle, including containers
  34. searches in public schools
    • applies to extracurricular activities and includes random drug testing
    • warrantless searches of public school children's effects is permissible to investigate a violation of school rules.
    • school searches will be rasonable if they (i) have a moderate chance of success; (ii) is reasonably related to the goal of the search; and (iii) is not excessively intrusive.
  35. Miranda Warnings
    • Triggered by custodial interrogation
    • Do not need to given verbatim
    • Custody = not free to leave
    • Interrogation = conduct the police knew or should have known might eliciit an incrminating response.
    • Note - no application to spontaneous statements.
  36. Miranda Waivers
    must be knowing, voluntary and intelligent in the totality of the circumstances.
  37. Invoking Right to remain silent
    • must be unambiguous
    • Police can reinitate questioning if they wait a significant amount of time, D is re-mirandized, and the questions are limited to a separate crime.
  38. invoking right t counsel
    • must be unambiguous
    • all questions must cease until (1) accused gets an attorney or (2) accused initiates further questioning.
    • Police can't even question about an unrelated case.
  39. 5A right to counsel v. 6A right to counsel
    • After the arrestee invokes his 5A right to counsel, reinitiation of the interrogation without the attorney violates the const. 5A is not charge specific.
    • 6A is offense specific. Attorney only has to be present at the interrogation if the questions were related to that attorney's case.
  40. Pretrial Identification
    • 2 ways to attack identification:
    • 1) Denial of right to counsel, which is present for post-charge lineups and showups.
    • 2) denial of due process: techniques are unnecessarily suggestive and likely to produce misidentification that they deny due process.
    • Remedy is exclusion of the identification.
    • State can still introduce the identification if it can establish an adequate independent source.
  41. Bail
    • Immediately appealable
    • preventative detention is constitutional
  42. Grand Juries
    • exclusion does not apply to grand juries.
    • GJ Ws can be compelled to testify based on illegally seized evidence.
    • D has not rt to appear and no right to send Ws
  43. Prosecutorial Duty to disclose exculpatory evidence
    • failure to disclose, whether willful or inadvertent, violates due process.
    • failure to disclose will constitute grounds for reversal if:
    • 1) evidence is favorable to D; and
    • 2) prejudice has resulted, meaning there is a reasonable probability that the result would have been different had the state disclosed
  44. Right to unbiased judge
    bias means having a financial interest in the outcome of the case or some actual malice against D
  45. Right to Jury Trial
    rt to a jury trial attaches when the potential penalty exceeds 6 months.
  46. Juries
    • minimum number = 6.
    • If the court uses 6 jurors, the verdict must be unanimous.
    • No Const. right to a unanimous 12-person jury verdict.
    • jury pool has to reflect a fair cross-section of the community, but the empaneled jury does not.
    • Lawyers can use peremptory challenges to exclude jurors for any reason other than race or gender
  47. Right to counsel
    • applies to all critical stages, including trial
    • Ineffective assistance of counsel: such a deficient performance by counsel and but for that deficiency, the result would have been different.
  48. right to self-representation
    D has rt to defend himself so long as his waiver of his right to counsel is knowing, intelligent, and he is competent to proceed pro se.
  49. Rt to confront W
    absence of face-to-face confrontation is ok vis a vis 6A so long as preventing the confrontation serves an impt public purpose and reliability of testimony is otherwise assured.
  50. Guilty Pleas
    • SCOTUS won't disturb guilty pleas after sentencing.
    • If D pleads guilty, judge must address D on the record re: the nature of the charge and the maximum authorized and mandatory minimum penalties, and that D can demand a trial.
  51. Reasons to withdraw a guilty plea after sentence
    • 1) plea was involuntary
    • 2) lack of jurisdiction
    • 3) ineffective assistance of counsel
    • 4) failure of the prosecutor to keep an agreed upon bargain
  52. Death Penalty
    • DP Statute must give D chance to present mitigating facts and circumstances. If not --> unconstitutional.
    • Can't be an automatic category for imposing the DP
    • Statute cannot limit the mitigating factors; all relevant mitigating evidence must be admissible.
    • only a jury can determine the aggravating factors.
  53. Double Jeopardy
    • attaches when the jury is sworn in, or in a bench trial, when the first W is sworn.
    • Doesn't apply to civil procedings
    • Exceptions:
    • 1) jury is unable to agree upon a verdict
    • 2) mistrial for manifest necessity
    • 3) successful appeal
    • 4) breach of an agreed upon plea deal by D. When D breaches the deal, his plea and sentence can be withdrawn and the orig. charges reinstated.
  54. Rights Against Compelled Testimony
    • Right against self-incrimination can be asserted in any type of case.
    • W must assert the privilege the first time the question is asked, or he waives it.
    • Must be claimed in civil proceedings to use it again in later criminal prosecution
    • if he responds in a civil proceeding, he cannot withhold that info on 5A grounds.
    • Only applies to compelled testimony, and not to physical evidence.
  55. 5A and Prosecutorial Misconduct
    • unconst. for prosecutor to comment on D's failure to testify or choice to remain silent.
    • Exception: can respond to D's assertion he was not allowed to explain his side of the story.
    • Harmless error test will apply.
  56. Elimination of 5A rights
    • 1) grant of immunity;
    • 2) no possibility of incrimination, e.g. statute of limitations
    • 3) waiver

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