FSP Crim Pro

  1. What is the exclusionary rule?
    all evidence seized in violation of the 4th is inadmissible
  2. Evidence excluded by the ER for violating the 4th, 5th, or 6th may be used to do what?
    impeach testimony given on either direct or cross
  3. What is the GF exception to the ER?
    evidence obtained pursuant to an invalid warrant won't be excluded if a reasonably well-trained officer would have believed that the warrant was valid
  4. To whom does the 4th apply?
    only to gov and not private conduct
  5. When will private conduct be subject to 4th scrutiny?
    when search and/or seizure is at the direction of the gov or pursuant to an official policy 
  6. When are AW not generally required before arresting someone?
    in public place with PC
  7. Does the non-emergency arrest of a person in his home require an AW?
  8. When does an arrest occur?
    person isn't free to leave and is thus deprived of his freedom of action in a significant way
  9. What is the knock and announce rule?
    unless exigent circumstances exist, the arresting officer  must knock and announce his identity before entering to make an arrest
  10. Does violation of the knock and announce rule automatically trigger automatic exclusion of evidence seized after the violation?
  11. REP is satified only when the D has shown what 2 things?
    • (1) standing
    • (2) objects to be seized not held out to the public 
  12. In NC what factors are used to determine whether garbage has been held out to the public?
    • (1) location
    • (2) how exposed to public garbage is
    • (3) whether garbage was picked up by the collection agency prior to the search by LEO  
  13. If there is a REP then police intrusion constitutes what?
    a search
  14. t/f - If there is no REP then police intrusion doesn't constitute a search
  15. What is the open fields doctrine?
    • applies to the area beyond the curtilage
    • no REP
    • no 4th protection
    • a view of "open fields" is NOT a search   
  16. A reasonable search under 4th must be conduct how?
    • (1) pursuant to warrant
    • (2) under an exception to warrant requirement 
  17. What is the plain view doctrine?
    LEO may seize property that is clearly visible in plain view w/o a warrant if the police are lawfully positioned and it is immediately apparent that the evidence is incriminating
  18. What are the NC requirements for the plain view doctrine?
    • (1) clearly visible
    • (2) LEO lawfully positioned
    • (3) immediately apparent that evidence is incriminating
    • (4) discovery was inadvertent   
  19. Who issues a warrant?
    neutral and detached magistrate
  20. A warrant must be based on PC that can be satisfied by what kind of testimony or affidavit?
    • (1) contains fact/circumstances that are relevant & not out of date
    • (2) reasonable person would conclude it to be more probable than not that evidence of named items or persons will be found 
  21. How must the warrant describe the place to be searched and the items/persons to be seized?
    with particularity
  22. In NC, a SW is void if not executed w/in how many hours of issuance?
    48 - can be executed at any time day or night
  23. In NC, may outbuildings w/in the curtilage of the premises be searched pursuant to SW?
  24. When is a search w/o a warrant valid?
    • (1) voluntary consent
    • (2) hot pursuit
    • (3) PC to believe that car is carrying contraband
    • (4) exigent circumstances where reasonably believe evidence may be lost or destroyed
    • (5) momentary detention with very limited questioning    
    • (6) incident to valid arrest
    • (7) on premises subject to regulatory licenses at reasonable hour
    • (8) permanent checkpoint
    • (9) official custody    
  25. When is a stop and frisk permitted?
    • reasonable belief that criminal activity is afoot
    • looking for concealed weapons 
  26. What does the search incident to arrest entail?
    search of D person and area w/in his immediate control which is usually referred to as wingspan

    must be contemporaneous to the arrest and may even precede it 
  27. May LEO randomly stop a car to check license and registration?
  28. If a custodial arrest is affected while the D is in a car, what is considered w/in the D immediate control?
    entire passenger area, including the glove box and any containers found in such passenger area

    true even if suspect no longer in the car at the time 
  29. When can LEO inspect a container w/in a car?
    PC to believe that container has contraband or evidence even if no PC to search the entire car
  30. What is required for D consent to search to be effective?
    voluntary and intelligent decision made w/o coercion
  31. What is the general rule regarding consent to searches by persons having joint control or use of shared premises?
    any person having such control/use may consent to a valid search and any evidence obtained may be used against the other occupants
  32. What statements are inadmissible?
    coerced or otherwise involuntary confessions for any purpose

    Harmless error rule applies rather than automatic reversal 
  33. What are the Miranda rights?
    • (1) right to remain silent
    • (2) anything said can be used against D
    • (3) right to attorney
    • (4) can't afford attorney then one will be provided   
  34. What is the Miranda Rule?
    no statements made by D will be admitted into evidence unless, prior to custodial interrogation, the D was given his warnings
  35. What is the test concerning a Miranda waiver?
    ToC - competency of D & nature of police conduct
  36. What does the term "custodial" mean?
    significant deprivation of freedom of movement and may not leave
  37. What does the term "interrogation" mean?
    police know or should reasonably know actions are reasonably likely to elicit an incriminating response
  38. What must happen if D requests an attorney or wishes to remain silent?
    all interrogation must stop
  39. If a D has requested an attorney, he may not be furthered question unless what?
    • (1) counsel is present
    • (2) D voluntarily initiates a discussion beyond a nec inquiry arising out of the incidents of the custodial relationship 
  40. Statements obtained from D in violation of Miranda are admissible to do what?
    impeach D testimony at trial
  41. When does a D have a right to counsel at a lineup?
    after charges are filed but not before
  42. What is the rule in NC regarding the right to counsel under a non-testimonial indentification order?
    • D is entitled to counsel
    • any statement made by supsect during procedure inadmissible, regardless of waiver/warnings, unless counsel present when statement made 
  43. When are out of court identifications inadmissible?
    identification was unnecessarily suggestive and likely to product an irreparable mistaken ID
  44. If an OoC ID is excluded b/c suggestive or unreliable, is a subsequent in court ID admissible?
  45. If an OoC ID is excluded b/c of violation of D right to counsel, is a subsequent in court ID admissible?
    yes if P can clearly and convincingly show that the subsequent ID stemmed from an independent purging source
  46. A D is entitled to what to determine whether bail should be granted or denied?
    individualized hearing
  47. What kinds of bail does NC allow?
    • (1) release on D written promise
    • (2) unsecured appearance bond
    • (3) release into custody of designated person/org
    • (4) secured bond
    • (5) restrictions on travel, association, conduct, or where D may live    
  48. What are the exceptions to pre-trial release in NC?
    • (1) D in capital cases
    • (2) D accused of committing offense while residing at a mental health facility or escaping from the facility
    • (3) DV defendants - 48 hour hold  
  49. To be voluntary and intelligent a plea must be taken on the record and the judge must personally be certain that the D understands what?
    • (1) nature of charges against him
    • (2) maximum possible sentence and any mandatory mins
    • (3) fact that he has right to not plead guilty
    • (4) that by pleading guilty, the right to a jury trial is waived   
  50. When does the right to a speedy trial attach?
    once D is accused
  51. When does the right to jury trial attach?
    in any criminal proceeding where D faces a potential sentence of longer than 6 months
  52. In NC, after a written request for speedy trial to the clerk, how long does the DA have to proceed to trial?
    6 months
  53. When must unrequested exculpatory evidence be disclosed?
    where it creates a reasonable doubt that didn't otherwise exist
  54. What does the P failure to disclose evidence in violation of discovery rules often entitle D to?
    new trial
  55. When does jeopardy attach in a non-jury trial?
    when first W is sworn
  56. When does jeopardy attach in a jury trial?
    when jury is impaneled and sworn
  57. May a D be indicted for the same offense if the grand jury originally failed to indict on that offense?
    yes b/c jeopardy hasn't attached
  58. When does a crime constitute the same offense for double jeopardy purposes?
    one set of facts proves them both
  59. What is the definition of a lesser included offense?
    second offense contains all the elements of the first offense plus additional ones then first offense is lesser included offense
  60. When doesn't double jeopardy apply?
    • (1) D successfully appeals his conviction and gets retrial
    • (2) mistrial has been granted
  61. When can P appeal?
    whenever the appeal can be decided w/o subjecting the D to a second trial
  62. In a joint trial where a co-D confession implicates the other D, what does the right to confrontation do?
    prohibits the use of such a confession and dictates that D are entitled to separate trials
  63. When must a motion to sever be made in NC?
    • pre-trial unless the grounds for it are unknown before trial
    • reviewable by court until the close of evidence 
  64. A D may waive his right to counsel if he does so how?
    knowingly and intelligently
  65. What does the right to counsel ensure the D of?
    no imprisonment for any offense unless represented (absent waiver)
  66. When does the 6th A right to counsel attach?
    • at all critical stages of the proceedings that affect the D right to a fair trial
    • offense specific 
  67. It is a violation of 6th to represent more than one D whenever a conflict of interest is shown to exist that what?
    jeopardizes the rights of any D or adversely affects the attorney's performance
  68. What is the minimum number of jurors required in non-capital cases?
    • 6 as long as the jury functions as a representative cross section of the community
    • requires unanimous verdict if only 6 
  69. Do state criminal trials that have 12 jurors have to be unanimous?
  70. What are NC requirements for jury trial?
    • 12 jurors
    • unanimous verdict
    • D in superior court can't waive right to jury trial  
  71. What does D right to jury entail?
    • jury selected from cross-section of the community
    • exclusion of juror based on race/gender violates EPC 
  72. What is the 6th right to public trial?
    • D has right to a public trial in all criminal prosecutions
    • members of press and general public have right to be present at all criminal proceedings except the grand jury UNLESS overriding interest necessitates a closed trial 
  73. What is the P standard of proof for conviction in criminal trials?
    • beyond a reasonable doubt
    • applies to every element of the crime charged
  74. What is the D standard of proof for affirmative defenses?
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FSP Crim Pro
crim pro from bar points