Criminal Procedure

  1. General Fourth Amendment Protections
    • Unreasonable search and seizure
    • Requires warrants supported by probable cause 
  2. General Fifth Amendment Protections
    • No denial of life, liberty or property without due process
    • Privilege against self-incrimination 
  3. General Sixth Amendment Protections
    In criminal trials, the defendant has a right to counsel
  4. Exclusionary Rule
    • All evidence seized in violation of the Fourth Amendment is inadmissible in a criminal proceeding
    • Includes physical evidence and statements 
  5. Policy Purpose of the Exclusionary Rule
    Not intended as a remedy of defendant's rights, intendended to deter police
  6. Standing Threshold for Raising a Fourth Amendment Violation Claim
    • Defendant must personally be the victim of the police's unreasonable conduct
    • Court must determine whether the person claiming violation has legitimate expectation of privacy in the invaded place 
  7. Fruit of the Poisonous Tree Doctrine
    All evidence directly or indirectly acquired as a result of an illegal arrest, search or seizure must also be excluded
  8. Exception to Poisonous Tree Rule
    • Evidence may still be admitted provided taint is dissapated  or purged by:
    • Independent evidence;
    • Inevitable discovery; or
    • Intervening act of free will
  9. Independent Evidence (Poisonous Tree Exception)
    Evidence obtained from a source independent of the original illegality
  10. Inevitable Discovery (Poisonous Tree Exception)
    • Evidence that would have been discovered regardless of the illegality
    • Occurs when there is a significant number of facts that have occured between the evidence 
  11. Example of an Intervening Act of Free Will (Poisonous Tree Exception)
    Subsequent confession after release
  12. Defendant's Burden of Persuasion to Challenge an Affadavit upon which Warrant is Based
    • Preponderance of evidence, following conditions met:
    • Substantial showing of false statements;
    • Statements made intentionally, knowingly or in reckless disregard of the truth; and
    • Probable cause could not have been made without the false statements   
  13. Balance Approach of Exclusionary Rule; When it Applies
    • Compare benefit of deterrence with benefit of remedy
    • Only excludes evidence from case-in-chief; not impeachment, grand jury, deportation or parole revocation
  14. Good Faith Exception to Exclusionary Rule
    Evidence not excluded if a reasonably well-trained officer would have believed warrant was valid
  15. Factors of Good Faith Exception to Exclusionary Rule
    • Whether police reliance from facially valid warrant;
    • Whether police reliance of a valid statute; and
    • Whether police reliance from court official, not police officer
  16. When Good Faith Exception Does Not Apply to Exclusionary Rule
    • Police lie or mislead to attain warrant;
    • Magistrate not neutral or detached; and
    • No reasonable officer would believe warrant was valid
  17. Establishing Admissibility of Evidence (Hearing rights and limitations; Government's Burden of Presuasion
    • Right to supression hearing outside of jury's presence;
    • Testimony at suppression hearing may not be used against him at trial on substantive issue of guilt; and
    • Government's Burden of Presuasion is preponderance of the evidence
  18. Effect of Admitting Illegally Obtained Evidence
    • Reversible error unless error is harmless
    • Gov't must prove beyond a reasonable doubt that error did not contribute to conviction
  19. From Whom the Defendant is Protected Under Fourth Amendment
    • Government; not private individuals
    • Actors that are agents of federal, state or local government
    • Private party acting at direction of government agent or pursuant to official policy  
  20. General Rule for Warrants for Arrests
    • Generally, no warrant required for arrest in public place
    • Warrant required for nonemergency arrest of individual in own home 
  21. When a Person is in "Custody"
    • In presence of law enforcement officer; not free to leave
    • Effectively, deprived of freedom in significant way 
  22. When an "Arrest" Has Occurred
    • Person in custody for commencing criminal action
    • More than stop-and-frisk
    • Not brief detention for questioning, even if no probable cause  
  23. Effect of Unlawful Arrest on Conviction
    Unlawful arrest is not a defense to a subsequent conviction of crime charged
  24. Warrant Requirement for Lawful Arrest
    Generally, no warrant required, only probable cause
  25. Ways to Establish Probable Cause for Arrest
    • Police observations
    • Informant if specific details provided; and reliability of details and informant confirmed pre-arrest
  26. Conditions for Home Arrest Absent Warrant
    • Arrest attempt outside home thwarted because suspect retreats from home
    • Insufficient time to secure warrant because it would allow suspect to evade arrest or destroy evidence
    • Officer in "hot pursuit" and with probable cause 
  27. Knock and Announce Rule
    • Absent exigent circumstances, police must announce identity prior to entering home
    • Exigent circumstances include reasonable suspicion that K&A would be dangerous, futile or inhibit investigation 
  28. Rule for Use of Deadly Force to Prevent Escape
    • Suspect poses risk of serious physical harm to officer or others; or
    • Suspect committed crime involving infliction of harm if feasible warning was given 
  29. Probable Cause for Arrest (Requirement, Standard, Test)
    • Requirement: Time of arrest
    • Standard: Quantity of facts and circumstances w/in officer's knowledge that would allow reasonable person to conclude a crime was committed by arrestee
    • Test: Evaluated by what officer knew at time of arrest
  30. Requirements for Anticipatory or Conditional Warrants
    • Conditioned on an event occuring;
    • If event occurs, there must be a fair probability that evidence will be found at particular location; and
    • Probable cause that condition will occur  
  31. Reasonable Suspicion Requirements
    • Based on articulable information;
    • More than a mere hunch;
    • Reasonable person standard; and
    • Suspect has or is about to engage in illegal activity
  32. Standard for Reasonable Suspicion
    • Totality of circumstances of each cause
    • "Particularized and objective basis" for suspecting legal wrongdoing 
  33. Terry Standard Requirements, Scope, and Standard for Stop-and-Frisk
    • Requirements: Can articulate reasonable suspicion that a suspect is armed and dangerous; No probable cause or warrant required
    • Scope: Extends to car interior where suspect is sitting
    • Standard: Object belief, not subjective; Common sense behaviors sufficient
  34. Expectation of Privacy Requirements (Search and Seizure)
    • Defendant has standing (rights violated)
    • Objects seized are not "held out to the public" 
  35. Standing Requirements (Search and Seizure)
    • Ownership or possessory interest in premises
    • Based on legitimate expectation of privacy; not mere ownership
    • Standing not automatic when defendant possess illegal item   
  36. Standing and Automobile Limitations (Search and Seizure)
    • Passenger lacks standing to challange validity of search of automobile
    • Car passenger has standing to challenge validity of stop 
  37. Guest's Standing (Search and Seizure)
    • Overnight guests have standing
    • Non overnight guests and commercial guests have no standing 
  38. Requirements for Standing for Possession of Illegal Item (Search and Seizure)
    • Defendant must show legit exepectation of privace in items seized or premises searched
    • Must be a fairly substantial nexus b/t defendant and place searched 
  39. Circumstances Where there is No Reasonable Expectation of Privacy Even if Not Held Out to Public (Search and Seizure)
    • Handwriting exemplars
    • Voice exemplars
    • Bank records
    • Pen registers, including dialed phone numbers
    • Private conversations, including eavesdropping
  40. Privacy and Government Use of Devices
    If gov't uses device not used by general public to explore private home, then search is presumptively unreasonable
  41. Warrants and Search and Seizure
    Search without warrant presumptively invalid unless w/in explicit exception
  42. Search Warrant Requirements
    • Issued by neutral/detached magistrate
    • Adequate showing of probable cause
    • Description with particularity of place to be searched and items to be seized   
  43. Two Prong Test of Probable Cause for Warrant
    • Testimony or affidavit containing facts of circumstance that are not out of date and still relevant; and
    • Sufficient for a reasonbale person to conclude it is more probable than not that person/items will be found 
  44. Factors for Warrant Based on Informant Tip
    • Credible information;
    • Reliable informant
    • Police corroboration; and
    • Declaration against interest   
  45. Limitations to Execution of a Search Person
    • Only police, not private citizens, may execute warrant;
    • Warrant must be executed promptly
    • Knock and announce before forcible entry attempt  
  46. Searching Unnamed Persons at Search Location
    Mere presence is insufficient to search person at search premises
  47. Execeptions to Search Warrant Requirements
    • Searches incident to lawful arrest;
    • Auto exception;
    • Plain view;
    • Consent;
    • Searches pursuant to stop;
    • Hot pursuit; or
    • Exigent circumstances       
  48. Search Incident to Lawful Arrest Exception (Search Warrant) (Purpose, Scope, as Applies to Domicile)
    • Purpose: Protect officers and prevent evidence destruction
    • Scope: Applies to person and area of immediate control (wingspan)
    • In domicile: Cursory scan or protective sweep of domicile if reasonable suspicion of armed accomplice; else, warrantless search unreasonable 
  49. Search Incident to Lawful Arrest Exception (Cars)
    • Passenger compartment only if it is reasonable to believe defendant can access and vehicle contains evidence of offense of arrest; 
    • Seize and search later event without warrant
    • Reasonable belief that containers have evidence or contraband; even if no probable cause to search entire car
  50. Limits on Automobile Stops (4th Amendment)
    • No random stop for checking license and registration without reasonable cause
    • Can have traffic stop to check if stop is random and based on fix formula
    • Border checks okay  
  51. Requirements of Plain View Exception to Warrantless Search
    • Property is clearly visible in plain view
    • Police are lawfully positioned; and
    • Immediately apparant evidence is incriminating 
  52. Requirements of Consent Exception to Warrantless Searches
    • Voluntariness based on totality of circumstances;
    • Proper Scope; and
    • If a third party, there is actual or apparent authority to consent 
  53. Exigent Circumstances Exception to Warrantless Search
    • Evidence may be lost/destroyed before warrant can be obtained
    • Reasonable body searches were loss/destruction of evidence is a concern
    • Enter home if objective believe of occupant in serious harm
    • No geeneral emergency exception
    • Crime scene to seek other victims or remaining killer    
  54. Scope of Permissible, Warrantless Airline Searches
    • Search for weapons and explosives permissible
    • Passenger may avoid search by declining to board plane 
  55. Wiretapping Warrant Requirements
    • Probable cause to show crime has been or is being committed;
    • Warrant names suspects and describes particular conversation; and
    • Wiretap only valid for brief period   
  56. Involuntary Statements (Definition and Standard)
    • Police subject suspect to coercive conduct sufficient to overcome will of suspect
    • Subject, case by case basis; account for particular vulnerabilities and conditions 
  57. Four Ways to Exclude Statements and Confessions and Constitutional Basis
    • Voluntariness Approach: Due Process Clause of 5th and 14th Amendment
    • Right to Counsel Approach: 6th Amendment right to counsel
    • Miranda Standard: 5th Amendment privilege against self-incrimination
    • Fruits of Illegal Conduct: 4th Amendment Exclusionary Rule   
  58. Coercion Factors for Determining Vulnerabilities to Voluntariness Standard of Statements and Confessions
    • Age;
    • Sex;
    • Education; and
    • Mental/physical health  
  59. Requirements of Invocation of Sixth Amendment Right to Counsel
    • Unambiguous request
    • Offense specific, even if factual relationship between offenses
    • Counsel present for all questioning until accused waives right
    • Absent waiver; deliberate eliciting of statements violates right
    • No secret recordings   
  60. Requirements of Miranda Warnings
    • Right to remain silent
    • Anything he says can be used against him in court
    • Right to presence of an attorney
    • If he cannot afford; attorney will be provided   
  61. When Miranda Rules Apply (Interrogation)
    • Only to interrogation
    • Volunteered, spontaneous or unsolicited statements are not interrogation
    • Focus on susceptibility of sustpect
    • Only official interrogation
  62. When Miranda Rules Apply (Custody)
    Only statements made during custodial interrogation where defendant is deprived of freedom
  63. Factors for Determing Custody under Miranda Rules
    • When and where
    • How long
    • How many officers present
    • What officers adn defendant said and did
    • Presence of physical restraint or equivalent
    • Whether questioned as suspect or witness     
  64. Special exceptions to Miranda Rules
    • Age, DOB, height, weight and like
    • Slurred responses in drunk-driving case
    • Outweighed by immediate threat to public safety  
  65. Due Process Standard for Pre-Indictment IDs
    • Lineup, show-up, or photo ID inadmissible where ID is unnecessarily suggestive and likely to produce irreparable mistaken ID
    • One-on-one IDs where both suggestive an unnecessary unless reliable based on totality of circumstances
  66. Totality of Circumstances Factors for Pre-Indictment IDs
    • Opportunity to view criminal at scene;
    • Witness's degree of attention;
    • Accuracy of witness's description
    • Degree of certainty of witness; and
    • Time interval between crime and ID     
  67. Right to Counsel in Post-Indictment LIneups
    • Attaches at start of adversary proceedings
    • After formal charges
    • Inadmissible out-of-court ID made in violation of right to counsel does not bar in-court ID if prosecution clearly and convincingly shows subsequent ID from independent source  
  68. Chronology of Arrest to Trial
    • Grand Jury Indictment
    • Information
    • Booking
    • Bail Hearing
    • Preliminary Hearing
    • Arraignment
    • Motions
    • Plea Bargaining
    • Collateral Attacks on Guilty Pleas after Sentencing       
  69. When 5th Amendment Right to Grand Jury Applies
    Federal felony cases
  70. General Rights that Do Not Apply to Grand Jury Hearings
    • Accused may not be present, confront witnesses or intorduce evidence
    • No right to counsel
    • No miranda warnings to potential defendants
  71. Information in Pretrial
    • Written accusation of charges filed in name of state by prosecutor
    • Alternative to indictment
    • Preliminary hearin general allowed prior to filing but not a constiutional right 
  72. Ex Post Facto Protection
    • Crime must be law at time of the offense, prohibits the following:
    • Retroactive criminal statutes
    • Increasing punishment after offense committed
    • Removal of viable defenses available at time offense committed
    • Apply procedural rules or evidence rules retroactively that makes it easier to convict
    • Extending SOL when it hasd already expired  
  73. When is there no 5th Amendment Right?
    • To give urine samples;
    • Submit to fingerprints, photography, or measurements;
    • Write, speak, or wear particular clothes;
    • Assume a stance or walk; or
    • Make a particular gesture for identification in court 
  74. Exceptions to Privilege Against Self-Incrimination
    • Use immunity ensures testimony will not be used against witness
    • Transactional immunity is broad and assures witness he will not be prosecuted for any crime related to entire transaction
    • Testimony regarding acts where SOL is not self-incriminating
    • Defendant takes stand, no self-privilege from cross-ex of that testimony
    • Does not protect volunteered information    
  75. Procedural Safeguards for Juvenile Offenders
    • Right to written notice of charges
    • Right to counsel
    • Right to confront and cross-ex
    • Privilege against self-incrimination
    • Right to have guilt proved beyond reasonable doubt; and
    • Right to protection from double jeopardy
  76. Procedural Safeguards for Not Provided toR Juvenile Offenders
    • Right to jury trial;
    • Right to bail
    • Right to public trial  
  77. Aliens' Rights for Detention
    Limited to time reasonable necessary to accomplish removal from U.S.
  78. Limitations of Prisoner Rights
    • No right to unionize
    • Mail may be censored
    • Inmates have no right to provide legal service to one another
    • Cannot sue private corporation running prison facilities to violation of constitutional rights
    • Vistation rights can be regulated     
  79. Specific Rights Provided to Prisoners
    • Reasonable access to courts, counsel and press
    • Medical care
    • Notice to forfeiture of property  
  80. Death Penalty Safegaurds to Prevent Violation of 8th Amendment
    • Bifurcated trial;
    • Evidence of aggravating circumstances required
    • Mandatory reviw of mitigatin factors by judge (not required in jury instructions)
    • Death penalty cannot be imposed unless a verdict of guilt to a lesser-offense is permitted
    • Review procedure required
    • Must be over the age of 18th
    • Must be mentally competent      
  81. Procedural Considerations for Writs of Habeas corpus
    • Defendent must prove unlawful detention by preponderance of the evidnce
    • Indigents have no right to counsel
    • Writ must be timely and petitioner must be in custody (includes bail, probation or parole)
    • All requirements met
    • State may appeal granting of writ and defendant may be retried of same offense without violating double jeopardy    
  82. Requirements for Petition for Habeas Corpus
    • Petitioner must show detention violates U.S. constitution
    • State petitioner must have followed all state procedural rules at trial or been denied relief;
    • Available state remedies must be exhausted before federal court may consider petition
    • Petitioner must show clear and convincing evidence of error before federal court will review factual findings of state court
    • Petitioner that had full/fair opportunity to raise 4th amendment violation in state court will nto be permitted to see a writ in federal court  
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