MBE: Crim Pro

  1. Exclusionary Rule (General)
    • GEN: If victim of an illegal search or a coerced confession, you can have the product(s) of that illegal search or coerced statement excluded from any subsequent criminal prosecution. To qualify for exclusion, search must either violate the federal constitution or a federal statute.
    • LIMITS: Does not apply in --
    • (1) Grand jury proceedings;
    • (2) Civil proceedings;
    • (3) Parole/probation revocation proceedings;
    • (4) Deportation hearings; AND
    • (5) Sentencing hearings.

    NOTE: Even if excluded for the case-in-chief, illegally obtained evidence may be used to impeach the credibility of the defendant (not other witnesses).
  2. Exclusionary Rule
    Nontestimonyal Fruits from Miranda Violations
    GEN: When police fail to Mirandize a suspect, and that suspect provides information leading police to nontestimonial evidence, such evidence WON'T be suppressed if the failure was not purposeful.
  3. Exclusionary Rule (Knock and Announce Violations)
    GEN (FED): Exclusion is NOT a remedy in KAA cases where, in the execusion of search warrants, the police reasonably believed that knocking and announcing would be futile, dangerous, or inhibit investigation (ie. destruction of evidence).

    PA: Exclusion is a remedy if police fail to knock/announce.
  4. Exclusionary Rule (Fruit of the Poisonous Tree Doctrine)
    • GEN: Excludes all evidence (including illegally seized evidence) obtained from police illegality.
    • BUT: Gvt can break chain and avoid exclusion if (Three I's) --
    • (1) Independent source -- gvt can show separate source (sep from police illegality) for the evidence;
    • (2) Inevitable discovery; OR
    • (3) Intervening acts of free will on the part of defendant.
  5. 4A -- Arrest
    • GEN: Warrant not required for an arrest in a public place. If police want to take you to the police station for fingerprinting or interrogation, they need probable cause.
    • EXCEPTION: Non-emergency arrest in one's home requires an arrest warrant.
  6. 4A -- Search & Seizure
    • SEIZURE: Reasonable Suspicion
    • (1) Gvt conduct?
    • >> Any on/off duty police officer OR private individual acting at the direction of the police.
    • >> Private police don't count unless deputized w/ power to arrest (assume not).
    • (2) REOP? Standing analysis.
    • >> Always Standing: own premises search, live on premises searched, overnight guests.
    • >> Sometimes Standing: if you own property seized, standing only if REOP in item/area searched.
    • >> No Standing: Anything held out to public every day. Includes -- voice, handwriting, car color, bank account records, location of car on pub streets/driveway, anything in open field, odors, garbage.
    • (3) Valid search warrant?
    • >> REQS: (1) Probable cause; and (2) Particularily.
    • >>>> PC: Fair probability that contraband or evidence of a crime will be found in a searched area. Can rely on hearsay and informants. If anonymous informants, need something else -- corroboration.
    • >>>> Particularity: Details re: the place searched and the things to be seized.
    • (4) If bad warrant, good faith defense?
    • >> GF: Officer's GF reliance on a defective search warrant can overcome PC and Particularity defects.
    • >> Exceptions: (a) affidavit for warrant too laking in PC or particularity -- not reasonable; (b) police lied to or misled the magistrate; (c) magistrate is biased.
    • (5) If warrant is invalid and there's no GF defense (or no warrant to begin with), six exceptions:
    • >> (S) Search incident to a lawful arrest
    • >>>> Arrest lawful AND arrest/search contemporaneous in time/place.
    • >>>> Geographic constraints: scope of search limited to wingspan -- procure weapon or destroy evidence.
    • >>>> NOTE (CARS): Can search entire interior compartment (not trunk) IF (1) arrestee unsecured (can access car); OR (2) reasonable belief of evidence of offense (ie. alcohol for drunk driving).
    • >> (P) Plain View
    • >>>> Police officer must be legitimately present where viewing occurs.
    • >> (A) Automobile Exception
    • >>>> If police have PC BEFORE searching anything/anyone, they can search the entire car (including interior/trunk) and open any package which could reasonably contain what they had PC to look for. The necessary PC can arise after the car has been stopped but b/f anything searched.
    • >> (T) Terry Stop & Frisk
    • >>>> Terry Stop: brief detention to investigate suspicous conduct. Need reasonable suspicion -- less than PC -- that a person is carrying a dangerous weapon. Then check for weapons.
    • >>>> Reasonable Suspicion: may be based on information from a reliable informant. Uncorroborated tips, however, are insuff. to establish reasonable suspicion.
    • >>>> Plain Feel Exception: If police during a frisk believe something is a weapon BUT it becomes immediately apparent the suspect has drugs, the evidence is admissible.
    • >> (C) Consent
    • >>>> Voluntary and intelligent. Note: if police say they have a warrant but don't, consent negated.
    • >>>> Third Party Consent: Where 2+ people have equal property rights, either can consent UNLESS both present and one declines.
    • >> (H) Hot Pursuit / Evanescent Evidence
    • >>>> Hot Pursuit: Police w/in 15 minues behind a fleeing felon. If HP, police can enter anyone's home w/o a warrant and any evidence they see can be admissible under Plain View.
    • >>>> Evanescent Evidence: might disappeaar if police took time to get a warrant (ie. fingernails).
  7. 4A -- Searches & Seizures (Buses)
    KEY: Would a reasonable person feel free to leave under the circumstances?

    • NOTE: Police need not provide a warning.
    • NOTE: Citizens have an absolute constitutional right to deny a request to search and the answer cannot be held against you.
  8. 4A -- Wiretapping
    • GEN: Requires a warrant.
    • BIG EXCEPTION: Unreliable ear -- must assume that anyone we take to eill either content to gvt monitoring or the convo will be wiretapped.
  9. 5A: Confessions and Miranda
    • MIRANDA: If custodial interrogation, then Miranda --
    • (1) Right to remain silent
    • (2) Anything you say can be held against you
    • (3) Right to an attorney; if you can'r afford one gvt will provide one
    • (4) RIght to terminate the interrogation at any time.

    • CUSTODY: If at time of interrogation, not free to leave.
    • >> BUT: Probation interviews and routine traffic stops are NOT custodial interrogation.

    INTERROGATION: Conduct where the police knew or should have known that they might elicit an incriminating response from a suspect.

    WAIVER: Must be knowing, voluntary AND intelligent. No waiver in the form of silence.

    • NOTE: Reinitiation of interrogation -- on any topic -- after D invokes right to counsel is a 5A violation.
    • NOTE: 5A right to counsel, unlike that in 6A, is NOT offense specific.

    IMPEACHMENT: Defective statements re: Miranda can still be used to impeach a defendant.
  10. Massiah Rule
    • GEN: Authorities cannot attempt to elicit incriminating statements from a defendant once that person is formally charged. Illegally obtained statements may, however, be used to IMPEACH.
    • IE. Incriminating statement obtained by the bailiff post-charge inadmissible.
  11. 6A: Right to Counsel (Offense Specific)
    • GEN: Right to counsel in criminal trials.
    • NOTE: Right is offense specific, meaning that the lawyer only need be present at the interrogation if the defendant is being interrogated about the case for which the attorney was retained.

    6A: "In all criminal prosecutions, the accused shall enjoy the right to . . . have the Assistance of Counsel for his defence."
  12. 6A: Pretrial Identification
    • (1) Post-charge line-up; OR
    • (2) Show-ups (one on one).

    • BUT NO RIGHT IF: identification is just photographs.
    • >> The photograph ID may be prohibited if unduly suggestive.

    • NOTE: Certain pretrial ID techniques so unnecessarily suggestive and so substantially likely to produce a mis-ID that they can deny DP of law (ie. suspect black, the rest white).
    • >> EXCLUSION: If violation, courts can prohibit BOTH out-of-court AND in-court identifications.
    • >>>> BUT (Broad Exception): courts will NOT block in-court identification where there is an independent source for that in-court identification (indep. of bad lineup). IE. Ample opportunity to observe defendant at the time of the crime.
  13. Grand Juries
    GEN: GJ witness may be compelled to testify based on illegally seized evidence. D has no right to appear and no right to send witnesses.

    • KEYS:
    • (1) Rules of evidence ≠ apply for GJ proceedings.
    • (2) Exclusionary rule ≠ apply.
    • (3) Only privileges are available.
  14. 6A: Right to Jury Trial
    • GEN: Constitutional right to a jury trial attaches when a defendant is tried for an offense for which the maximum authorized sentence exceeds six months.
    • NOTE: If sum of the sentences for criminal contempt exceeds six months, you have a right to ajury trial.

    MIN JURORS: min. number is 6. If court uses the min number, verdict must be unanimous.

    NO UNANIM. REQ: No federal constitutional right to a unanimous 12-juror verdict. SCOTUS has approved non-unanimous verdicts of 10-2 and 9-3.

    JURY POOL: Right to fair ross section of the community for the jury pool, but not the actual empaneled jury.

    CHALLENGES: Attys get three preemptory challenges (any reason) and an unlimited number of challenges for cause.
  15. 6A: Ineffective Assistance
    GEN: (1) Deficient performance and (2) but for such performance, the result of the trial would have been different.
  16. Guilty Pleas
    • GEN: Courts must address defendant on the record re:
    • (1) Nature of the charge;
    • (2) Max. authorised penalty and any mandatory minimum penalty; AND
    • (3) D has right to plead not guilty.

    • (1) Plea involuntary;
    • (2) Lack of jurisdiction;
    • (3) Ineffective assistance of counsel; OR
    • (4) Failure of the prosecutor to kep an agreed-upon plea.
  17. Death Penalty and Mitigation
    • GEN: State may not by statute limit the mitigating factors in a mitigation hearing. All relevant mitigating evidence must be admissible or the statute is unconstitutional.
    • NOTE: Only the jury -- not a judge -- may determine the aggravating factors justifying imposition of the death penalty.
  18. Accomplice Liability
    • GEN: Accomplice liability requires --
    • (2) giving aid, counsel or encouragement; AND
    • (2) intent to aid or encourage the principal in the commission of the crim charged.
    • >> Mere knowledge that a crime would result from aid gen. ≠ sufficient for accomplice liability.
  19. Deadly Force in Non-Self Defense Situations
    * Fleeing Felon *
    • GEN: Private person may use deadly force to apprehend a fleeing felon if the felon threatens death or SBI and deadly force is necesary to prevent the felon's escape.
    • >> KEY: Person must actually be guilty of the felony for which the arrest was made; NOT sufficient that it reasonably appeared that the person was guilty.
  20. Double Jeopardy and Retrial
    • ATTACHES: In criminal (not civil) where --
    • (1) Jury trials: when the jury is sworn in.
    • (2) Bench trials: when first witness is sworn in.

    • RETRIAL: Permitted where --
    • (1) Jury unable to agree upon a verdict.
    • (2) Mistrial due to manifest necessity (ie. defendant gets sick).
    • (3) Successful appeal by defendant.
    • >> NOTE: A defendant whose conviction was reversed on appeal cannot be retried for any offense more serious than that for which he was convicted in his FIRST trial.
    • (4) Breach of an agreed-upon plea bargain by defendant (plea/sentence can be withdrawn and original charges reinstated).
    • >> NOTE: Agmt by one D to testify against another in exchange for leniency can require that the first defendant also testify if the second one is retried.

    • TRIAL FOR TWO CRIMES: Two crimes ≠ same offense if each crime requires proof of an additional element that the other does not.
    • BUT: Being put on trial for a greater offense bars retrial for any lesser offense (ie. robbery prosectution bars retrial for larceny), and being on trial for a lesser offense bars retrial of the greater offense (ie. larceny bars robbery).
    • EXCEPTION: If put on trial for battery but victim later dies, you can be tried for murder.

    • SEPARATE SOVEREIGNS: DJ bars retrial for the same offense by the same sovereign.
    • >> SO: D can be prosecuted by different states, or by a state and the federal gvt for a crime if have separate laws criminalizing the activity.

    ACQUITTAL: If D acquitted, can't be retried by the same sovereign.
  21. 5A: Privilege Against Self Incrimination (GEN)
    • GEN RULES:
    • (1) Must assert privilege first time the question is asked. Otherwise, the privilege is waived for subsequent criminal prosecutions.
    • (2) Privilege must be claimed in civil proceedings in order to prevent the privilege from being waived in later criminal prosecution. If answer question, cannot later bar that evidence on 5A grounds.
    • (3) 5A only prevents compelled testimony. It does not prevent gvt from using D's bodies in ways to incriminate them -- ie. hair/blood samples.

    • WAIVER OF PRIVILEGE: If criminal defendant takes the witness stand WAIVES his 5A
    • privilege as to all legitimate subjects of cross examination.
  22. 5A: Privilege Against Self Incrimination (ELIMINATED)
    • GEN: Privilege can be eliminated in three ways --
    • (1) Grant of immunity -- gvt cannot use immunized testimony or anything derived from it to convict D.
    • >> BUT: gvt can prosecute you based on evidence obtained prior to that immunity grant.
    • (2) No possibility of incrimination (ie. SoL has run for underlying crime).
    • (3) Waiver: If criminal defendant takes the witness stand WAIVES his 5A privilege as to all legitimate subjects of cross examination.
  23. Searches in Schools
    • GEN: Can search students' personal effects to determine if there's a violation of school rules.
    • >> Reasonable if: offers a moderate chance of finding evidence of wrongdoing.
    • >> Search not excessively intrusive in light of the age/sex of the student and the nature of the infraction.
  24. Harmless Error Rule (Standard of Review for Most Evidence Issues)
    GEN: Evidentiary errors are subject to harmless error analysis ("Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected.").

    • NOTE: Burden when arguing that evidence was improperly excluded/included is to show that the proper ruling by the trial judge may have, on the balance of probabilities, resulted in the opposite determination of fact.
    • NOTE: Applies to matters like mistaken jury instructions.
  25. Trial w/o Defense Attorney
    • Misdemeanor: cannot be given jail time.
    • Felony: reversible error if counsel not provided.
  26. Physician-Patient Privilege (Federal)
    Federal Rules of Evidence: do not recognize doctor-patient privilege.
Card Set
MBE: Crim Pro