Criminal Procedure

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  1. What are the FOUR "global" search and seizure issues?
    1. Whether a search or seizure is governed by the Fourth Amendment

    2. Whether a search or seizure conducted with a warrant satisfies Fourth Amendment requirements

    3. Whether a search or seizure conducted without a warrant satifies Fourth Amendment requirements

    4. The extent to which evidence obtained through a search and seizure that violates the Fourth Amendment is nonetheless admissible in court
  2. What TWO key questions should be asked when determining whether the search or seizure was governed by the Fourth Amendment?
    1. Was the search or seizure executed by a government agent?

    2. Was there a reasonable expectation of privacy in the area search or the item(s) seized?
  3. What are FOUR categories of government agents with respect to whether a search or seizure was governed by the Fourth Amendment?
    1. Publicly paid police, on or off duty

    2. Private citizens acting at the direction of the police

    3. Private security guards deputized with the power to arrest

    4. Public school administrators
  4. What are FOUR protected areas from which the Fourth Amendment protects individuals from unreasonable searches and seizures?
    1. Persons

    2. Houses (including hotel rooms and curtilage)

    3. Papers

    4. Effects
  5. What is CURTILAGE?
    It's the area of domestic use immediately surrounding the house, in which individuals enjoy protection from unreasonable searches and seizures.
  6. What is the TWO-PRONG TEST for a search or seizure to invade an individual's reasonable expectation of privacy?
    1. The individual must have exhibited an actual or subjective expectation of privacy in the area searched or items(s) seized; AND

    2. The privacy expectation must be "one that society recognizes as reasonable."
  7. Police searches are presumptively unreasonable when when use what kind of a device?
    A device that is not in public use to explore details of the home that officers could not have known without physical intrusion.
  8. What are EIGHT unprotected items that are sufficiently "public" in nature such that they carry NO reasonable expectation of privacy?
    (patty achieved a glorious victory over her opponents)

    Paint scrapings on the outside of your car

    Account records held by a bank

    Airspace (anything th at can be seen below while flying in public airspace)

    Garbage left at the curb for collection


    Odors (most important are those from your car or luggage)


    Open fields (anything that can be seen in or across the open fields)
  9. What is the RULE for whether someone has standing to challenge a search or seizure?
    To have standing to challenge the lawfulness of a search or seizure by a government agent, an individual's personal privacy rights must be implicated, not those of a third party.
  10. Which THREE groups of people ALWAYS have standing to challenge a government search or seizure?
    1. Owneres of premises searched

    2. Residents of premises searched

    3. Overnight guests of premises searched, as to areas that overnight guests can be expected to access
  11. Is a commercial nexus sufficient to grant standing for challenging a government search or seizure?
    No. When the premises are used solely for business purposes, the individual NEVER has standing.
  12. Does an owner of the seized property have standing to challenge the search and seizure?
    Only if they have a reasonable expectation of privacy in the area from whcih the property was seized.

    A man who hides drugs in his girlfriend's purse has no such expectation.
  13. Do passengers in cars have standing to challenge a government search and seizure?
    Only if they have a reasonable expectation of privacy in the area searched or the item seized.
  14. Can passengers in cars challenge possession of weapons?
    Yes, if possession is attributed to them.
  15. What are the THREE key question in determining whether the search warrant satified Fourth Amendment requirements?
    1. Is the warrant supported by propbably cause and particularity?

    2. It not, did police officers rely on a defective warrant in "good faith"? (the good faith doctrine is rejected in NY)

    3. Was the warrant property executed by the police?
  16. What is the test for PROBABLE CAUSE?
    Probable cause requires proof of a "fair probability" that contraband or evidence of crime will be found in the area searched, based on a preponderance of the evidence.
  17. Is hearsay admissible for determine whether probable cause is met?
  18. What is the rule for informant's tips in attaining probable cause?
    MBE: Police may rely on anonymous informtion, as long as it can be corroborated by the police such that the magistrate can make a "common sense" practical determination that probable cause exists.

    NY: Aguilar-Spinelli test must be met . The government must establish two things:

    (1) the informant's basis of knowledge; AND

    (2) his or her veracity or reliability
  19. What is the standard for PARTICULARITY?
    The search warrant must specify the place to be searched and the items to be seized.
  20. Does an officer's GOOD FAITH save a defective search warrant?
    MBE: Yes. An officer's good faith overcomes constitutional deficits in probable cause and particularity with FOUR exceptions.

    NY: No.
  21. What are the FOUR exceptions to the good faith doctrine in the context of defective search warrants?
    1. The affidavit supporting the warrant application is so egregiously lacking in probable cause that no reasonable officer would have relied on it.

    2. The warrant is so facially deficient in particularity that officers could not reasonably presume it to be valid.

    3. The affidavit relied upon by the magistrate contains knowing or reckless falsehoods that are necessary to the probable cause finding.

    4. The magistrate who issued the warrant is biased in favor of the prosecution.
  22. What are TWO important aspects to determining whether the warrant was property executed by the police?
    1. Whether the officers executing the warrant complied with its terms and limitations; AND

    2. Whether the officers executing the warrant complied with the "knock and announce" rule
  23. What is the RULE for compliant with a warrant's terms and limitations?
    In executing the warrant, officers are allowed to search only those areas and items authorized by the language of the warrant.
  24. What is the KNOCK AND ANNOUNCE RULE?
    Police must "knock and announce" their present AND their purpose before forcibly entering the place to be searched, unless the officer reasonably believes that doing so woudl be futile or dangerous or would inhibit the investigation.
  25. What are the EIGHT exceptions to the warrant requirement?

    Exigent circumstances

    Search incident to arrest



    Plain view


    Special needs

    Terry "stop and frisk"
  26. What are THREE examples of exigent circumstances?
    1. Evanescent evidence

    2. Hot pursuit of fleeing felon

    3. "Emergency aid" exception
    Evidence that would dissipate or disappear in the time it woudl take to get a warrant.

    e.g., scraping under fingernails; blood evidence in DUI
  28. What is the HOT PURSUIT RULE?
    Hot pursuit allows police, when looking for a suspect, to enter a suspect's home or that of a third party into which he has fled.
  29. What evidence recovered from a hot pursuit exception is admissible?
    During hot pursuit, any evidence of a crime discovered IN PLAIN VIEW while searching for the suspect is admissible.
  30. What is the "EMERGENCY AID" exception?
    Police may enter a residence without a warrant when there is an objectively reasonable basis for believing that a person inside is in need of emergency aid to address or prevent injury.
  31. Does any "arrest" qualify for the search incident to arrest exception to a warrant requirement?
    No. The arrest must be LAWFUL.
  32. What are TWO justifications for search incident to arrest?
    1. Officer safety; and

    2. The need to preserve evidence
  33. Is there a timing requirement for the search incident to arrest exception for a warrant requirement?
    Yes. The search must be contemporaneous in time and place with the arrest.
  34. What is the SCOPE of the search in a search incident to arrest?
    The wingspan, which includes the body, clothing, and any containers within the arrestee's immediate control without regard to the offense for which the arrest was made.

    NY: To search CONTAINERS within the wingspan, a police must suspect the arrestee is ARMED.
  35. What is the SCOPE for the search of an automobile in a search incident to arrest?
    Interior cabin of the vehicle, including closed containers but NOT the trunk.
  36. What is the RULE for searching an automobile in a search incident to arrest?
    Once an officer has "secured" an arrestee (i.e., handcuffing and placing in squad car), the officer can search the arrestee's vehicle ONLY if she has reason to believe the vehicle may contain evidence relating to the CRIME FOR WHICH THE ARREST WAS MADE.

    NY: Once the occupant is out of the car, police CANNOT search closed containers or bags inside the vehicle, unless to look for weapons or evidence of crime.
  37. What is the standard for CONSENT in the context of a warrantless search?
    Consent must be voluntary and intelligent.

    To satisfy this standard, police officers do not need to tell someone that she has the right to refuse consent to make the consent valid.
  38. What is the SCOPE of consent in the context of a warrantless search?
    An officer's consent to search extends to all areas for which a REASONABLE OFFICER would believe permission to search was granted.
  39. What is "apparent" authority in the context of a warrantless search?
    If a police officer obtains consent to search from someone who lacks "actual" authority to grant it, the consent is still valid under the Fourth Amendment, provided the officer REASONABLY believed that the consenting party had "actual" authority.
  40. What is the rule for consent in the context of a warrantless search when premises are SHARED?
    When adults share a residence, any or all of them may consent to a search of common areas within it.

    However, if co-tenants disagree regarding consent to search common areas, the OBJECTING party prevails, as to areas over which the co-tenants share dominion and control.
  41. What is the standard for an AUTOMOBILE search without a warrant? (not in a search incident to arrest)
    Police officers need probable cause to believe that contraband or evidence of crime will be found in the vehicle.
  42. What is the SCOPE of an automobile search without a warrant?
    The entire vehicle AND they may open any package, luggage or other container that may REASONABLY contain the item(s) for which there was probable cause to search.
  43. Can a traffic stop lead to a legitimate automobile search without a warrant?
    Yes. For the search to be lawful, an officer does not need probable cause at the time the car is pulled over, provided he acquires it BEFORE initiating the search.
  44. What are the THREE requirements for a plain view except to the warrant requirement?
    1. Lawful access to the place from which the item can be plainly seen;

    2. Lawful access to the item itself; AND

    3. The criminality of the item must be immediately apparent.

    NY: Plain view seizure of obscence material requires prior judicial authorization.
  45. What are TWO contexts in which inventory searches occur more commonly?
    1. Arrestees: when they are booked into jail

    2. Vehicles: when they are impounded
  46. What are the THREE requirements for an inventory search to be constitutional?
    1. The regulatinos governing them are reasonable in scope

    2. The search itself must comply with those regulations; AND

    3. The search is conducted in good faith (it is motivated SOLELY by the need to safeguard the owner's possessions and/or to ensure officer safety)
  47. What is a SPECIAL NEEDS in the context of a warrantless search?
    They refer to the "special needs" of law enforcement, governmental employers and school officials beyond a general interest in law enforcement.
  48. What are THREE contexts in which the Supreme Court has approved warrantless, random drug tests?
    1. Railroad employees following an impact accident;

    2. Customs agents who are responsible for drug interdiction; AND

    3. Public school children who participate in any extracurricular actitivies
  49. When are suspicionless drug tests NOT permitted?
    When their PRIMARY purpose is to gather criminal evidence for GENERAL use by law enforcement.
  50. When may government employees' desks and files be subject to a special needs search?
    Warrantless searches of government employee's desks and files are permitted to investigate work-related misconduct.
  51. When may students' effects in public schools be subject to a special needs search?
    Warrantless searches of the effects (purses, backpacks) of public schoolchildren are permissible to investigate VIOLATIONS OF SCHOOL RULES, such as the prohibition of smoking on school grounds.
  52. What is the RULE for border searches with respect to special needs searches without a warrant?
    Neither citizens nor non-citizens have any Fourth Amendment rights at the border with respect to ROUTINE searches of persons and effects.
  53. What is a TERRY STOP?
    It is a brief detention or "seizure" for the purpose of investigating suspicious conduct.

    Note: Terry stops can take palce anywhere, e.g., on the street, in a car, in an airport concourse, or on a bus.
  54. When is an individual SEIZED for Fourth Amendment purposes?
    An individual is seized for Fourth Amendment purposes when, based on a totality of the circumstances, a reasonable person would not feel free to leave or to decline an officer's request to answer questions.
  55. What are THREE fractors to consider in evaluating whether an individual has been seized during questioning by law enforcement?
    1. Whether an officer brandishes a weapon;

    2. The officer's tone and demeanor when interacting with the person questioned; AND

    3. Whether the individual was told she had the right to refuse consent.
  56. Does police pursuit = seizure?
    MBE: When being pursued by a police officer, an individual is seized ONLY if he submits to the officer's authority by stopping of it the officer physically restrains him.

    NY: Police pursuit is a seizure in and of itself.
  57. Who is "seized" in a traffic stop?
    In a traffic stop, both the driver and the passengers are seized, such that either can challege the legality of the stop.
  58. Are dog sniffs permisslbe at traffic stops?
    Yes, provided the sniff does not prolong the stop unreasonably.
  59. What is a TERRY FRISK?
    It is a patdown of the body and outer clothing for weapons that is justified by an officer's belief that a suspect is armed and dangerous.
  60. What can you seize in a Terry frisk?
    If the officer finds a weapon, it can always be seized.

    If the officer finds something she recognizes a contraband WITHOUT MANIPULATING THE OBJECT, it can be seized.

    NY: Officers can seize an item ONLY if it feels like a weapon.
  61. What is a CAR FRISK?
    When conducting a traffic stop, if an officer believes that a suspect is dangerous, he may search the passenger cabin of the suspect's vehicle, limited to those areas in which a weapon may be placed or hidden.
  62. What is a PROTECTIVE SWEEP?
    When making an in-home arrest, police may "sweep" the residence to look for criminal confederates of the arrestee whose presence may threaten officer safety.
  63. What evidentiary standard applies to Terry stops and frisks?
    Reasonable suspicion (less than probable cause)
  64. How does the REASONABLE SUSPICION STANDARD apply in Terry stops?
    It requires specific and articulable facts that inform an officer's belief that criminal activity is present.

    An officer's subjective intent is irrelevant in evaluating the legality of the stop; the Fourth Amendment is concerned SOLELY with its objective reasonableness.
  65. How does the REASONABLE SUSPICION STANDARD apply in Terry frisks?
    It requires specific and articulable facts that suggest that a suspect is ARMED AND DANGEROUS.

    Note: A Terry frisk is justified by a concern for officer safety ONLY; it is NOT a general search for criminal evidence.
  66. What evidentiary standards apply in "protective sweeps"?
    Officers may "sweep" the area immediately adjoining the place of arrest, provided there is REASONABLE SUSPICION that the house harbors a person who poses a danger to those on the arrest scene.
  67. What is required to justify a sweep of more REMOTE areas?
    The arresting officers must have ADDITIONAL FACTS sufficient to allow a REASONABLY PRUDENT officer to conclude that an individual who may threaten officer safety is present in the area swept.
  68. What is the EXCLUSIONARY RULE in the context of evidence gathered in an unconstitutional search and seizure?
    Evidence, whether physical or testimonial, that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual who rights were violated.
  69. What are FOUR Fourth Amendment limits on the exclusionary rule?
    1. Case-in-chief vs. cross-examination: Unconstitutionally obtanied evidence is excluded from the prosecutor's case-in-chief only; it MAY be introduced to IMPEACH the defendant's testimony on cross.

    2. "Knock and Announce" violations: A failure to comply with the "knock and announce" rule does NOT require suppression of the evidence subsequently discovered.

    3. Police misconduct: To trigger application of the exclusionary rule, police misconduct must be DELIBERATE, RECKLESS, or GROSSLY NEGLIGENT.

    4. Officers' "reasonable" mistakes: The exclusionary rule does not apply to evidence erroneously obtained when executing a search warrant, provided an officer's mistake was reasonable.
    It is derivative evidence, both physical and testimonial, that can be obtained by exploiting PRIOR unconstitutional conduct.
  71. Can the prosecutor use fruit of the poisonous tree?
    Like direct evidence obtanied in violation of the Fourth Amendment, it is inadmissible in the prosecutor's case-in-chief.

    However, the prosecutor can nullify "fruit of the poisonous tree" by showing a break in the causing link between the original illegality and the criminal evidence that is later discovered.
  72. What are THREE doctrines that can break the causal link in the fruit of the poisonous tree?
    1. Independent Source: There is a source for the discover and seizure of the evidence that is distinct from the original illegality (parallel process initiated by others).

    2. Inevitable Discovery: Evidence would necessarily have been discovered through lawful means.

    3. Attenuation: The passage of time and intervening events "purge the tanit" of the original illegality and restore the defendant's free will (wrongfully arrested defendant is released, then meets with his attorney, and then confesses).
  73. What are FOUR major requirements for a valid wiretap warrant?
    (screen telephone calls carefully)

    Suspected persons: the warrant must name the suspected persons whose conversaions are to be overheard.

    Crime: there must be probable cause that a specific crime has been committed.

    Conversations: the warrant must describe with particularlity the conversations that can be overheard.

    Time: the wiretap must be for a strictly limited time period.
  74. What is the "UNRELIABLE EAR" DOCTRINE in eavesdropping?
    If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no Fourth Amendment claim; you assume the risk that the other party will not keep your conversaions private.
  75. When does an arrest occur?
    An arrest occurs whenever the police take someone into custody against her will for prosecution or interrogation.
  76. What is DE FACTO arrest?
    When the police compel someone to come to the police station for questioning or fingerprinting.
  77. What standard of proof applies to arrests?
    Probable cause
  78. For what offenses does the Fourth Amendment permit a CUSTODIAL ARREST?
    All offenses, even those punishable by a monetary fine ONLY.
  79. When do you need a warrant to arrest someone?
    1. Absent an emergency, police officers need a warrant to arrest someone in his or her home.

    2. To arrest someone in the home of a third party, police officers need an arrest warrant AND a search warrant.
  80. When do you NOT need a warrant to arrest someone?
    Police officers do NOT need a warrant to arrest someone in a PUBLIC place.
    In a traffice stop, where a police officer discovers evidence of crime that suggests a common unlawful enterprise between the drive and his passenger(s), the officer may arrest any or all of them, based on the reasoanble inference of SHARED DOMINION AND CONTROL over the contraband.
  82. What are THREE federal constitutional challenges that can be brought to exclude a confession? Are there any additional NY challenges?
    1. Fourth Amendment Due Process Clause

    2. Sixth Amendment Right to Counsel

    3. Fifth Amendment Miranda Doctrine

    NY: Defendants can also challenge a confession under NY's "indelible" right to counsel, which derives from the Sixth Amendment of the state constitution.
  83. What is the STANDARD for excluding a confesison under the Due Process Clause?
    INVOLUNTARINESS, which means that the confession is the product of police coercion that overbears the suspect's will.
  84. When does the Sixth Amendment Right to Counsel attach?
    When the defendant is FORMALLY CHARGED, not upon arrest.
  85. When does the Sixth Amendment Right to Counsel apply?
    It applies at all "critical stages" of the prosecution that take place after the filing of formal charges, including arraignment, probable cause hearings, police interrogation and sentencing.
  86. To what does the Sixth Amendment Right to Counsel apply?
    The right is offense specific, meaning it applies ONLY to the charges filed against you. It provides no protection for uncounseled interrogation for other uncharged criminal activity.
  87. When do statements violate the Sixth Amendment Right to Counsel?
    Incriminating statements obtained from the defendant by law enforcement about charged offenses violate the Sixth Amendment if those statements are deliberately elicited and the defendant did NOT knowingly, intelligently, and voluntarily waive his right to have his attorney present.
  88. Which offers defendants greater protection: Sixth Amenment or NY's "Indelible Right to Counsel"?
    NY's Indelible Right to Counsel.
  89. When the NY's indelible right to counsel attach?
    It attaches not only at formal charging, but also whenever there is SIGNIFICANT JUDICIAL ACTIVITY (activity overwhelming to an ordinary person) before the filing of an accusatory instrument such that a defendant may benefit from the present of counsel.
  90. To WHAT does NY's indelible right to counsel attach?
    If a defendant is taken into custody for questioning on a charge AND the police are aware that he is represented by counsel ON THAT CHARGE, they may not question him about that charge or ANY OTHER MATTER without his attorney present.
  91. Can NY's indelible right to counsel be waived?
    Yes, but it must take place in the presence of the attorney.
  92. What are MIRANDA rights?
    Implied rights grounded in the Self-Incrimination Clause of the Fifth Amendment.
  93. What are the FOUR core Miranda warnings?
    1. Right to remain silent

    2. Anything you say can and will be used against you in a court of law

    3. Right to an attorney

    4. If you cannot afford one, an attorney will be appointed for you
  94. When are Miranda warnings necessary?
    1. When the subject is in CUSTODY: viewed objectively, the atmosphere is characterized by police domination and coercion such that his or her freedom of action is limited in a significant way.

    2. When the subject is in INTERROGATION: any conduct the police knew or should have known was likely to elicit an incriminating response.
  95. What is the PUBLIC SAFETY EXCEPTION with respect to Miranda warnings?
    If custodial interrogation is promted by an immediate concern for public safety, Miranda warnings are unnecssary and any incriminating statements are admisslbe against the suspect.
  96. How can one convey Miranda rights? How may testimonial responses be admitted into evidence?
    Incriminating testimonial responses obtained through custodial interrogation are admisslbe provided the officer, before initiating questioning:

    (1) reasonably conveys to the suspect his or her core Miranda rights; AND

    (2) thereafter obtains a valid waiver of the subject's Miranda rights to silence an counsel.
  97. What are TWO core requirements of a valid Miranda waiver?
    1. KNOWING & INTELLIGENT: The subject understands the nature of the rights and the consequences of abandoning them

    2. VOLUNTARY: It is not the product of police coercion.

    NY: Parent-child rule. If the police use deception or concealment to keep a parent away from a child who is being interrogated, the child's waiver may be deemed invalid.
  98. Does a Miranda waiver need to be "express"?
    No, it may be implied by a course of conduct that indicates the desire to speak with police interrogators.

    If a suspect has received and understood his Miranda rights, he waives his right to remain silent by making an uncoerced statement to the police.
  99. What is the BURDEN OF PROOF of establishing proper waiver of Miranda rights?
    The PROSECUTION bears the burden of proof by a preponderance of the evidence.
  100. How can an individual's Miranda right to be silent be INVOKED?
    Suspects must UNAMBIGUOUSLY invoke their right to remain silent.
  101. What happens when a suspect invokes his Miranda right to remain silent?
    Police officers must "scrupulously honor" the invocation. This means that the police:

    (1) Cannot badger a suspect into talking;

    (2) Must wait a significant period of time before reinitiating questioning; AND

    (3) Must first obtain a valid Miranda waiver before reinitiating questioning
  102. How can an individual invoke his Miranda rights to counsel?
    The request for counsel must be SUFFICIENTLY CLEAR that a reasonable officer in the same situation would understand the statement to be a request for counsel.
  103. When happens when a suspect invokes his Miranda right to counsel?
    ALL interrogation must CEASE unless initiated by the suspect.
  104. Is the Miranda right to counsel offense-specific?
    No. Interrogation following a request for counsel under Miranda is prohibited as to ALL topics outside the presence of the suspect's attorney.
  105. When and how does the Miranda request for counsel expire?
    The request expires 14 days after a suspect is released from custody.

    A waiver of the Miranda right to counsel obtained after this period is valid, provided it is knowing, intelligent, and voluntary.
  106. What are FOUR limitations on evidentiary exclusion as applied to Miranda violations?
    1. Incriminating statements obtained in violation of a suspect's Miranda rights are inadmissible in the prosecutor's case-in-chief testimony on cross but MAY BE used to IMPEACH the defndant's testimony on cross-examination (but NOT the testiony of third party witnesses).

    2. Failure to give a suspect Miranda warnings does NOT require the suppression of the physical fruits of incriminating statements, provided the statements are voluntary.

    3. If a statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining a Miranda waiver ARE admissible, provided the initial non-Mirandized statement was not obtained through the use of inherently coercive police tactics, offensive to due process.

    4. If testimonial evidence that should have been excluded as violative of Miranda was improperly admitted at trial and the defendant was convicted, the court may not be required to vacate the guilty verdict. The guilty verdict will stand if the government can prove, beyond a reasonable doubt, that the error was HARMLESS because the defendant would have been convicted without the tainted evidence. (This rule also applies to physical evidence improperly admitted under the Fourth Amendment.)
  107. What are THREE types of pretrial identification?
    1. Line-ups: witness is asked to identify the perpetrator from a group.

    2. Show-ups: one-on-one confrontation between the witness and the suspect.

    3. Photo arrays: witness asked to pick out the perpetrator from a series of photos.
  108. What are TWO substantive challenges to pretrial identifications?
    1. Denial of the Right to Counsel

    2. Violation of Due Process
  109. Which Amendments/laws provide a challenge to pretrial identification as a denial of the Right to Counsel?
    Sixth Amendment. A right to counsel exists at line-ups and show-ups that take place AFTER formal charging, but there is NO Sixth Amendment right to counsel at photo arrays.

    There is NO Fifth Amendment righ tot counsel under Miranda for pretrial identification procedures.

    NY: You have the right to have an attorney present at a line-up conducted BEFORE the filing of formal charges if you are AWARE that you have counsel AND if you REQUEST that counsel be present.
  110. What is the standard for the "violation of Due Process" challenge in a pretrial identification?
    A pretrial identification procedure violates the Due Process Clause of the Fourteenth Amendment when it is so unnecessarily suggestive that it creates a very substantial likelihood of irreparable misidentification.
  111. What are the factors that a Court must weigh in determing whether a pretrial identification violated an individual's Due Process?
    Court must weight:

    (1) the reliability of a suggestive identification


    (2) its corrupting effect
  112. What is the remedy for constitutional violations in pretrial identifications?
    The exclusion of a witness's in-court identification.
  113. Can an in-court identification EVER be allowed if there has been a constitutional violation in the pretrial identification procedure?
    Yes. An in-court identification will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional show-up, line-up, or photo array.

    To make this showing, prosecution can point to factors such as the:

    (1) witness's opportunity to view the defendant at the crime scene;

    (2) the certainy of the witness's identification; AND

    (3) the specificity of the description given to the police
  114. What does a GRAND JURY do?
    Issue indictments
  115. Are Grand Jury proceedings public?
    No, they are secret.
  116. Do states have to use grand juries as part of the charging process?
  117. In NY, what must a Grand Jury indictment establish?
    All elements of the offense AND provide reasonable cause to believe that hte accused committed the offense.
  118. What is the standard of proof of PRETRIAL DETENTION?
    Probable cause both to bind a defendant over for trial AND to detain him in jail before trial
  119. Is a hearing to determine probable cause ever unnecessary to justify pretrial detention? If yes, when?
    Yes, if:

    (1) the Grand Jury has issued an indictment, OR

    (2) a magistrate has issued an arrest warrant
  120. What must happen to the defendant soon after arrest?
    A defendant must be brought before a magistrate who will:

    (1) Advise him of his rights;

    (2) Set bail; AND

    (3) Appoint counsel, if necessary
  121. When are bail decision appealable?
  122. What must a prosecutor disclose to a criminal defendant?
    All material, exculpatory evidence
  123. The right to an UNBIASED judge means what TWO things?
    1. The judge has no FINACIAL STAKE in the outcome of the case; AND

    2. The judge has no actual MALICE towards the defendant
  124. When do criminal defendants have the righ to a jury trial?
    When the maximum authorized sentence exceeds SIX MONTHS.
  125. How many jurors are required in a criminal jury trial?
    MBE: 6

    NY: 12 (however, a defendant can waive this requirement and proceed to verdict with only 11 jurors participating in the deliberations)
  126. Is UNANIMITY of jury verdicts required?
    • Yes, if 6 jurors are used.
    • No, if 12 jurors are used.

    NY: Yes, for all jury verdicts.
  127. What is the CROSS-SECTIONAL REQUIREMENT in jury trials?
    The pool from which the jury is drawn must represent a cross-section of the community.
    They permit both sides to exclude juror without stating their reasons for doing so, but they cannot be used by either side to exclude prospective jurors on account of RACE or GENDER.
  129. When is a defendant's Sixth Amendment right to confront adverse witnesses curtailed?
    When face-to-face confrontation would contravene important public policy concerns

    (e.g., traumatizing a child witness)
  130. What is the two-prong test that applies to claims of ineffective assistance of counsel?
    The claimant must prove that:

    (1) counsel's performance was DEFICIENT (attorney taking cat naps was not deficient) ; AND

    (2) but for the deficiency, the outcome of the trial would have been different (the "PREJUDICE" requirement -- no prejudice where attorney slept through 15 minute testimony of opposing witness and could not cross)

    NY: reversal of guilty verdict not required when one (but not both) of the two attorneys for the defendant was unlicensed.

    NOTE: Because of the strictness of the two-prong test, unless there is some colorable argument that the defendant is not guilty, always deny relief under an ineffective assistance of counsel claim.
  131. What must be established for a guilty plea to be valid?
    The judge must establish that it is VOLUNTARY and INTELLIGENT
  132. What is a "plea-taking colloquy"?
    To make a guilty plea valid, the judge must conduct a "plea-taking colloquy" in which she addresses in open court and only the record:

    (1) Nature of the charges; AND

    (2) Consequences of the plea
  133. What are FOUR ways in which a defendant can withdraw a guilty plea AFTER sentencing?
    1. The plea is INVOLUNTARY, due to a defect in the plea-taking colloquy

    2. There is a jurisdictional defect

    3. The defendant prevails on a claim of INEFFECTIVE ASSISTANCE OF COUNSEL


    4. The prosecutor fails to fulfill his or her part of the bargain (remedy: defendant can withdraw plea and go back to square one)
  134. What is the Eighth Amendment standard for PUNISHMENT?
    It prohibits cruel and unusual punishment, which means that criminal penalties that are grossly disproportionate to the seriousness of the offense committed are not allowed.
  135. When would a death penalty statute automatically violate the Eighth Amendment?
    If it creates an automatic category for the imposition of the death penalty.
  136. What is the evidentiary requirement for a death penalty case?
    In deciding whether to impose the death penalty, jurors must be allowed to consider all potentially mitigating evidence.
  137. What are THREE areas in which the death penalty is categorically prohibited by the Eighth Amendment?
    1. Defendants with mental retardation

    2. Defendants who are presently insane

    3. Defendants who were under the age of 18 at the time the relevant offense occurred (not present age)
  138. When does "jeopardy" attach in the context of double jeopardy?
    Jury trial: when the jury is sworn

    Bench trial: when the first witness is sworn

    Guilty plea: when the court accepts the defendant's plea unconditionally
  139. Does the double jeopardy clause apply to civil procedure?
  140. What is the "SAME OFFENSE" requirement in the context of double jeopardy?
    MBE: Two offenses are NOT the "same offense" for purposes of the double jeopardy clause if each contains an element the other does not.

    NY: In defining "same offense," NY uses the "transaction test" -- a defendant must be charged with all offenses arising from any single transaction unless:

    (1) the offenses have substantially different elements;

    (2) each offense contains an element not in the other AND they vindicate different harms;

    (3) one is for criminal possession and the other, use; OR

    (4) each offense involved harm to a different victim
  141. What is the "SAME SOVEREIGN" requirement in the context of double jeopardy?
    Double jeopardy bars retrial for the same offense by the same sovereign ONLY.
  142. Is the state the federal government considered "same sovereign" for double jeopardy purposes?
  143. Are different states considered "same sovereign" for double jeopardy purposes?
  144. Are states and municipalities within them considered "same sovereign" for double jeopardy purposes?
  145. What are the FOUR exceptions to the double jeopardy rule, that permit retrial?
    1. Hung jury

    2. Mistrial for manifest necessity (defect in the indictment found during trial and couldn't be cured)

    3. Successful appeal, unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial

    4. Breach of the plea agreement by the defendant
  146. Who may assert the Fifth Amendment privilege against compelled testimony?
  147. When can the Fifth Amendment privilege against compelled testimony be asserted?
    In any proceeding in which an individual testifies under oath.

    NY: The privilege cannot be asserted in a Grand Jury proceeding.
  148. Under what circumstances could the Fifth Amendment privilege against compelled testimony be waived?
    The privilege must be asserted at the first opportunity, or it is FOREVER waived.
  149. Can an individual assert the Fifth Amendment privilege against compelled testimony to prevent the forcible extraction of blood or urine samples for prosecutorial use in a DUI case?
    No. It is a testimonial privilege that protects us from compelled testimony only; it does not apply to the state's use of our bodies.
  150. When is negative prosecutorial comment disallowed?
    Comment is disallowed on either a defendant's:

    (1) decision not to testify at his trial; OR

    (2) the invocation of his right to silence or counsel
  151. What the THREE ways to eliminate the Fifth Amendment privilege against compelled testimony?
    1. Grant of immunity

    2. Defendant taking the stand

    3. Statute of limitations
  152. How can a "grant of immunity" eliminate the Fifth Amendment privilege against compelled testimony?
    MBE: Prosecutors can grant "use and derivative use" immunity, which bars the government from using your testimony or anything derived from it to convict you.

    NY: NY uses "transactional" immunity which is broader than "use and derivative use" immunity because it shields witnesses from prosecution for any transaction they testified about in their immunized testimony.

    • Note: an individual can be convicited based on evidence obtained PRIOR to the grant of immunity!
  153. How can a defendant's taking the stand eliminate the Fifth Amendment privilege against compelled testimony?
    By taking the stand, the defendant waives the ability to "take the Fifth" as to anything propertly within the scope of cross examination.
  154. How does the statute of limitations eliminate the Fifth Amendment privilege against compelled testimony?
    The privilege is unaavailable if the statute of limitations has run on the underlying crime since a witness's testimony could not expose him or her to criminal prosecution.
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Criminal Procedure
new york bar exam criminal procedure review flashcards
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