Crim Pro

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  1. Exclusionary Rule
    Government may not profit from its own wrongdoing and therefore may not use direct results nor the fruits of illegal action.

    Exceptions: Impeachment of testifying D, if Casual Chain can be broken.
  2. Standing
    D has standing to challenge unlawful government act in premises D legally owns, has legal right to stay in, or where D has automatic standing.

    Automatic Standing- when an item is seized, is an essential element of a crime to possess that item, and D is in possession at time of seizure.
  3. Arrest Requirements
    • May be made with probable cause.
    • Arrest warrant required for arrest in home.
    • Felony arrest does not require warrant unless in home
    • Misdemeanor arrest requires commission in officer's presence, violent misdemeanor, or serious traffic offense.
  4. Probable Cause
    Reasonable police officer would be strongly suspicious that D committed a crime.
  5. Terry Stops (Investigative Detentions)
    Police may conduct temporary detention if reasonable, articulable suspicion of criminal activity.

    During Terry stop, police may handcuff, check warrants, put suspect in car, ask for ID, order passengers out of car w/ specific reasons.

    Cannot ask passengers questions (normally)
  6. Stop
    Where a reasonable innocent person would not feel free to leave or terminate encounter.
  7. Search
    Police conduct a search when entering an area where D has a reasonable expectation of privacy, and may only do so with a warrant issued by a neutral and detached magistrate upon probable cause (unless exceptions)
  8. Reasonable Expectation of Privacy
    • In a home (where a private citizen standing in legal position could not see)
    • In a car
    • WA: open field, curbside garbage, pen register, bank records
  9. Warrant Probable Cause
    reasonable magistrate would be strongly suspicious that thing of particular evidentiary value is at a particular place at a particular time.
  10. Staleness
    Officers must obtain and serve warrant in timely fashion
  11. Valid Warrant
    • Probable Cause
    • Neutral/detached magistrate
    • Precise description
  12. Informant
    • Aguilar-Spinelli test:
    • basis of knowledge and reliability of information
  13. Challenges to facially valid affidavit
    False statement intentionally or recklessly included and material to finding of PC
  14. Execution of Warrant
    • Knock and announce
    • Scope (reasonable search)
    • Copy of warrant and receipt provided
    • May detain persons on premises but cannot search w/o additional PC
    • Plain view
  15. Plain view
    When officers are where they are legally entitled to be, may seize items that are not described in warrant, so long as they an tell immediately from looking that it is evidence/contraband, and discovery is inadvertant.
  16. Search Incident to Arrest
    • No warrant required.
    • Must be reasonably contemporaneous
    • within the wingspan
    • a protective sweep if reasonable suspicion of armed lurkers
    • car passenger compartment (only if arrestee unsecured and reasonable grounds to suspect evidence related to crime)
  17. Automobile Exception
    No warrant required. Need PC to suspect contraband in car, scope depends on item. Car must be drivable.
  18. Inventory Search
    • No warrant required.
    • For car: justified impoundment following normal procedures, search cannot expand to locked containers, trunk unless manifest necessity
    • For person: upon booking in jail
  19. Plain view search
    • No warrant required.
    • Prior justification for being on premises, inadvertantly discover fruits or instrumentalities of crime, have immediate knowledge that object is seizable, and can demonstrate some exigency requiring seizure
  20. Consent to search
    • No warrant required.
    • Scope of consent limits search as reasonably understood.
    • Must be voluntary, intelligent, knowing
    • Must be notified of right to refuse
    • 3rd person can authorize if actual authority to consent. Present and objecting non-consenter wins over consenter
  21. Evanscent Evidence
    • No warrant required.
    • In hot pursuit of fleeing felon, evidence may be destroyed
  22. Stop and frisk
    • No warrant required.
    • Where suspect is lawfully stopped, can pat down exterior of cloting where reasonable and articulable suspicion that suspect is arms. Can remove item if feels like weapon or plain feel reveals contraband.
  23. Fruits of Illegal Confession
    Fruits not supressed, though confession is. May be used for impeachment.
  24. Miranda Warning
    • Must be given to person in custodial interrogation. Does not apply to spontaneous statements.
    • May be waived if VIK
  25. Request for Counsel
    must be unambiguous
  26. Termination of Interrogation
    • Invoking right to silence: questioning must stop and begun again only with fresh Miranda
    • Invoking right to counsel: questions must cease until attorney present or D initiates further communication
  27. Identification Process
    • Must not be unnecessarily suggestive or likelohood of misidentification.
    • D has right to counsel
  28. Bail
    D has a right to bail, which can only be withheld in capital cases. Conditions must be set to secure presence at trial, prevent violent crime, or prevent interference with justice. Bail cannot be excessive.
  29. Probable Cause Hearing
    If D arrested w/o warrant, hearing required to determine PC w/i 48 hours. No right to counsel, may be conducted by video
  30. Arraignment
    • Must be held within 14 days of filing information if D in jail or subject to release conditions.
    • Otherwise, within 14 days of first court appearance after filing.
  31. Right to Speedy Trial
    • D must be tried within 60 days of arraignment if in custody or 90 if not.
    • Remedy: dismissal with prejudice. Court will consider length of delay, reason, whether D asserted right to speedy trial, prejudice.
  32. Right to Counsel
    D has right to counsel in all criminal cases. May be waived if VIK.
  33. Ineffective Assistance of Counsel
    D must demonstrate that counsel performed below objective measure of competency and that but for counsel's deficient performance, there was reasonable probability that outcome of proceeding would have been different.
  34. Guilty Plea
    • Must be VIK
    • D must be told charge, consequences
    • D has right to attorney
  35. Plea Bargain
    if prosecutor violates deal after guilty plea entered, court may permit withdrawal of plea or specific performance of deal
  36. Sentencing
    • Right to counsel.
    • D has absolute right to speak on own behalf
    • Judge not permitted to impose sentence in excess of standard range
  37. Prosecutor's Duty
    Must disclose material exculpatory evidence specifically requested. Absent request, must disclose evidence that creates reasonable doubt about D's guilt.
  38. Right to Trial by Jury
    Right to unanimous verdict from 12 jurors. Jury pool should represent fair cross section of community.
  39. Jury challenges
    • Unlimited for cause (bias, etc...)
    • Peremptories cannot be used for racial/gender discrimination
  40. Double Jeopardy
    Cannot be tried twice for same offense. Attached when jury sworn or first witness sworn in bench trial.
  41. Joinder of Defendants
    May be joined at trial or request separate if necessary for fair determination of guilt/innocence.
  42. Joinder of Charges
    Judge has broad discretion to join cases but D must properly object. Proper objection when 1 crime is sufficiently greater than the other and possibility of tainting jury against lesser. Joinder also improper if D wants to testify in 1 but not other.
  43. Statements regarding invocation of Constitutional Rights
    Prosecutor cannot intentionally do this.
  44. Prison clothes
    To preserve presumption of innocence, D cannot be compelled to appear in prison clothes.
  45. Removal of Disruptive Defendant
    Judge has broad discretion to do this.
  46. Witnesses
    Defense must disclose identity of witnesses and statements and provide notice of alibi.
  47. Wiretaps
    requires warrant with probable cause, naming persons and describe conversations to be heard, time must be limited, and return describing conversations.
Card Set:
Crim Pro
2011-07-19 23:48:16
Washington Bar Exam Crim Pro

Crim Pro
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