Crim Pro

  1. Fourth Amendment:
    The Fourth Amendment is applicable to the states via the Fourteenth Amendment Due Process Clause. Protects against unreasonable searches and seizures by governmental intrusion upon a reasonable expectation of privacy. *General Rule: Warrantless Searches are presumed to be invalid absent an exception.
  2. Seizure:
    The exercise of dominon/control by government over a person or thing
  3. Search:
    any governmental intrusion upon a reasonable expectation of privacy
  4. Governmental conduct
    • The publicly paid police (on or off duty)
    • Any private individual acting at the direction of the public police
    • Privately paid police are NOT government conduct UNLESS they are deputized with the power to arrest you (private security, campus police)
  5. Reasonable expectation of privacy
    • Standing to object to the search
    • a.You own the premises searched
    • b.You live in the place searched (whether you own it or not)
    • c.You are an overnight guest of the place searched
  6. No expectation of privacy:
    Bank records, voice exemplars, abandoned property, open fields, handwriting, telephone number dialed, canine sniff in public place, false confidences, garbage
  7. Search Warrants: Validity Requirements
    • *Must be issued by a neutral and detached magistrate
    • *Must be based on probable cause – look to the totality of the circumstances (Police observation/ May be based on hearsay)
    • *Must be precise on its face: Must state with particularity the place to be searched and the items to be seized.
    • *Must be properly executed: (no unreasonable delays, after announcement, person/place within scope of warrant)
  8. Searches without warrants
    • Exceptions: CAL SIPS PEPSI
    • Consent/Auto Search/Incensing/Administrative Power/Search Incident to Arrest/Impoundment/Plain View/ School Children/ Public Policy/Exigent Circumstances/Probationers Parolees/Stop and Frisk/Inventory
  9. Exception to Warrantless Search: Exigent Circumstances
    Warrantless search may be conducted where a delay would result in the destruction of the evidence, a loss of the evidence or endangerment of life or property
  10. Exception to Warrantless Search: Search incident to a lawful arrest
    • *The arrest must be lawful – if the arrest is unlawful the search is unlawful
    • *The search must be contemporaneous in time and place with the arrest
    • *Scope: only the person and his wingspan may be searched
    • E.g. the places in which he can reach to store a weapon. When a person is validly arrested in a car, their wingspan will include the entire interior of the car and everything in it, but not the trunk.
  11. Exceptions to a Warrantless Search: Automobile
    • *Probable cause – the same probable cause they would have needed to obtain a warrant e.g. that the vehicle contains the fruits, instrumentalities or evidence of a crime.
    • *No need to arrest the driver, nor need for probable cause that the driver has committed a crime.
    • *Scope: police may search the WHOLE car (including the trunk), and may open any package or luggage w/in the car (regardless of who owns it) as long as the items for which they are looking could reasonably be hidden in those compartments. Police may also tow the vehicle to the station and search it later.
  12. Exceptions to a Warrantless Search: Plainview
    • The police may seize property w/out a warrant where they:
    • *Are legitimately on the premises;
    • *Discover evidence, fruits or instrumentalities of a crime or contraband;
    • *See such evidence in plain view; AND
    • *Have probable cause to believe that the item is evidence, contraband or a fruit or instrumentality of a crime.
  13. Exceptions to a Warrantless Search: Stop & Frisk
    • Terry v. Ohio, Police officer may stop a person w/out probable cause where there is reasonable suspicion (25% or more) of criminal activity
    • Scope: limited to pat-down of outer clothing
    • Admissibility: weapons are always admissible as long as the stop was reasonable. If non-weapon, admissibility will depend on how much like a weapon or contraband could it have appeared from the outside.
  14. Exceptions to a Warrantless Search: Consent
    • *Must be voluntary and intelligent
    • *Person must have authority to give consent: where two or more people have an equal right to use a piece of property, anyone of them can consent to its warrantless search. But, if two people are present, and one denies entry, they can’t come in.
    • *Saying they have a warrant negates consent. But, the police do not have inform someone of their right to refuse consent.
  15. Exclusionary Rule
    A judge-made doctrine that prohibits the introduction of evidence obtained in violation of a defendant’s 4th, 5th, or 6th Am rights. Under the rule, illegally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded
  16. Standing-Exclusionary Rule
    • Defendants legitimate expectation of privacy based upon the totality of the circumstances
    • *person owned or had right to possession of the place searched
    • *place searched was in fact the person's home whether or note the person owned or had right to possession or
    • *The person was an overnight guest of the owner of the place searched
  17. Fruit of the Poisonous Tree:
    • allows the court to exclude all evidence obtained or derived from that original police misconduct. Exceptions
    • *Evidence obtained from a source independent of the original illegality.
    • *Inevitable discovery (i.e. the prosecution can show that the police would have discovered the evidence whether or not the police acted unconstitutionally).
    • *Intervening acts of free-will on the part of the D
    • *Dissipation of taint: connection between tree and fruit can be meaningful severed
  18. Exclusionary Rule Limitations
    • *Does not apply to the conduct of grand juries – grand jury witness may be compelled to testify based on illegally ceased evidence
    • *The rule is inapplicable in civil proceedings
    • *In order to qualify for exclusion, the search in question must violate either the federal constitution or a federal statute
    • *Exclusion is not an available remedy in parole revocation proceedings
    • *Police Good faith defense
    • *Some excluded evidence may be admitted to impeach the defendant’s trial testimony
    • *If the original police illegality is a Miranda violation, any real or physical evidence discovered as a result of that violation is not excluded as fruit of the poisonous tree
  19. Police Good Faith Reliance on Warrant or unconstitutional statue
    • *No exclusion where the police rely in good faith on a judicial opinion later changed by another opinion
    • *No exclusion where the police rely in good faith on a statute or an ordinance later declared unconstitutional.
    • *No exclusion where the police rely in good faith reliance on a defective search warrant. 4 Exceptions
    • 1. Affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it
    • 2. The warrant is defective on its face (e.g. it fails to state with particularity the place to be searched or the things to be seized).
    • 3. PO lied to or mislead the magistrate
    • 4. The magistrate has wholly abandoned his judicial role.
  20. Harmless v. reversible error
    • if illegal evidence is admitted, a resulting conviction must be automatically revered, unless the government can show beyond reasonable doubt that the error was harmless (verdict not based on or prejudiced by, in anyway, the illegal evidence
    • Adjudication by a biased judge, deprivation of the right to counsel, and denial of the right to a public trial are never harmless. Such errors result in automatic reversals.
  21. Fifth Amendment
    • Guarantees “no person shall be compelled in any criminal case to be a witness against himself.”
    • The Fifth Amendment is applicable to the states via the Fourteenth Amendment Due Process Clause.
    • It prohibits the government from compelling self-incriminating testimony.
  22. Miranda Warning
    • is a pre-requisite to the admissibility of any statement made by the accused during custodial interrogation.
    • Only applies if:
    • *The person is in custody (not free to leave) – e.g. at a police station. But probation interviews and routine traffic stops are NOT custodial.
    • *There is an interrogation: any conduct that the police knew or should have known may produce a damaging statement.
    • *Spontaneous statements by the accused do not need a Miranda warning
  23. Miranda Waiver:
    a suspect may waive his Miranda rights, but the prosecution must prove that the waiver was knowing, voluntary and intelligent. NO waiver of Miranda right from silence or shoulder shrugging.
  24. 5th Am v. 6th right to counsel
    • *When, upon hearing the Miranda warning, someone invokes his right to counsel, re-initiation of interrogation by the police w/out his attorney present violates the D’s 5th Am right to counsel. (The 5th Am right to counsel is NOT offense specific – police must STOP interrogation of ANY issue. )
    • *Any other time a suspect asks for an attorney (not after a Miranda warning), he invokes the 6th Am right to counsel.
    • (The 6th Am right to counsel IS offense specific – police may initiate interrogation of OTHER issues.)
  25. Miranda Exception:
    SC has allowed interrogation w/out Miranda warning where it was reasonably prompted by a concern for the public safety.
  26. Pre-trial indentification
    • Two bases for attack
    • *Denial of right to counsel
    • *Denial of due process
  27. Denial of Right to Counsel
    • Generally, under the 6th Am, a suspect has a right to the presence of an attorney at any post-charge line-up or show-up.
    • *But, no right to counsel, when the police show a witness or a victim photographs
  28. Denial of Due Process
    • Where a pre-trail identification is unnecessarily subjective and there is a substantial likelihood of misidentification the defendant may attack the identification as denying due process. In such case, those identifications must be excluded.
    • *But, a witness may make an in-court identification despite the existence of a prior unconstitutional identification, as long as the prosecutor can verify the identification with an independent source (e.g. proof that the witness had ample opportunity to look at the accused at the time of the crime)
  29. Bail
    • Bail issues are immediately appealable
    • Preventive detention is constitutional
    • 8th amendment
  30. Grand Juries
    • *States do not have to use grand juries as a regular part of their charging process (and most states don’t). People may be charged by a writing signed by the prosecutor stating the charge.
    • *Exclusion does not apply to the conduct of grand juries – a grand jury witness may be compelled to testify based on illegally seized evidence.
    • *The proceedings of grand juries are secret. The D has no right to appear, and no right to send witnesses
  31. Right to an unbiased judge.
    Bias = financial interest in the outcome of the case OR some actual malice against the defendant.
  32. Juries/Public trial
    • the 6th and 14th Ams guarantee the right to a public trial.
    • *Right to a jury trial only applies where 1)the maximum authorized sentence exceeds 6 months OR 2)The sum of the sentences for criminal contempt exceeds 6 months
    • *The minimum number or jurors is 6 (if you use 6 it must be unanimous/no constitutional right to a 12 person unanimous verdict)
  33. Juries/The cross sectional requirement:
    • You have the right to have the jury pool reflect a fair cross section of the community.
    • *But, no right to have your own jury reflect a cross-section of the community.
  34. Juries Race/Gender
    It is unconstitutional for the prosecution or the defense to exercise preemptory challenges to exclude prospective jurors on account of their race or gender
  35. Ineffective Assistance of Counsel
    • Claimant must show:
    • *Deficient performance by counsel
    • *But for such deficiency, the result of the proceeding would have been different.
  36. Guilty Pleas & Plea Bargaining General Rules
    *The SC will not disturb guilty please after sentence.
  37. Contract Theory of Plea Bargaining
    SC treats plea bargaining like contracts, both sides held to whatever the deal is.
  38. Taking the Plea:
    • The judge must determine that the plea is voluntarily, and inform the D on the record:
    • *The nature of the charge
    • *The maximum authorized sentence and any mandatory minimum sentence
    • *That he has a right not to plead guilty, and that if he does plead guilty, he waives the right to a jury trial.
  39. 4 Good Bases for Withdrawing a Guilty Plea After Sentence
    • *The plea was involuntary
    • *Lack of jurisdiction
    • *Ineffective assistance of counsel
    • *Failure of the prosecutor to keep an agreed upon plea bargain*
  40. The Death Penalty
    • *Any death penalty statute that does not give the D a chance to present mitigating facts and circumstances is unconstitutional.
    • *There can be no automatic category for imposition of the death penalty.
    • *The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional.
    • *Only a jury and not a judge may determine the aggravating factors justifying imposition of the death penalty.
  41. Double Jeopardy: Attach
    • Generally, once jeopardy attaches, the defendant may not be retrial for the same offense. When does jeopardy attach?
    • *At a jury trial when the jury is sworn
    • *At a judge trial when the first witness is sworn
    • *Generally, jeopardy does not attach when the proceedings are civil.
  42. Double Jeopardy: Same Offense
    • *Generally, two crimes do not constitute the same offense if each crime requires proof of an additional element the other does not.
    • *Lesser included offenses (e.g. robbery = larceny + assault): being put in jeopardy for the greater offense bars retrial or the lesser offense. Being put in jeopardy for the lesser offense bars retrial or the greater offense (except for battery that escalates to murder when the victim dies).
    • *Separate Sovereigns: prohibition against double jeopardy does not apply to trials by separate sovereigns. Thus, a person may be tried for the same conduct by both the state and federal government or by two states. But not by a state and its municipalities.
  43. Double Jeopardy Exceptions permitting re-trail
    • *Hung jury: the jury is unable to agree on a verdict
    • *Mistrial for manifest necessity
    • *Re-trial after successful appeal
    • *Breach of an agreed upon plea bargain by the defendant: when a D breaches a plea bargain agreement his plea and sentence can be withdrawn and the original charges reinstated.
  44. Sixth Amendment
    • The sixth amendment provides that in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense & speedy trial once defendant is formally charged.
    • *The Sixth Amendment is applicable to the states via the Fourteenth Amendment Due Process Clause.
  45. 5th Am Privilege Against Self-Incrimination
    • Applies to any person asked under oath in any case a question which tends to incriminate them.
    • *Waiver: You must assert the privilege the first time the question is asked, or you will have waived that privilege in all subsequent proceedings.
    • *Scope: the 5th Am does not protect a D from having to use his bodies to incriminate him (e.g. a hair sample, urine sample, blood sample). Only protects from compelled testimony (e.g. a lie detector test or custodial police interrogation).
    • **It is unconstitutional for the prosecutor to make a negative comment on the D’s failure to testify or his remaining silent on hearing the Miranda warning.
  46. 5th Am privilege can be eliminated by:
    • *Grant of an immunity – use and derivative use immunity – promise that the gov will not use your testimony or any evidence derived from that testimony to convict you – but the gov may still prosecute you based on evidence it can show it had prior to granting that privilege.
    • *There is no possibility of incrimination (the statute of limitations has run)
    • *Waiver. Criminal D who takes the witness stand waives immunity for all legitimate subjects of cross-examination.
Card Set
Crim Pro
Crim Pro prep for bar