crim pro

  1. key amendments in crim pro
    • 4th - prohibition against unreasonable search and seizure
    • 5th - (1) priviledge against compulsory self-incrimination; (2) prohibition against double jeopardy
    • 6th - (1) right to speedy trial; (2) right to trial by jury; (3) right to confront witnesses; (4) right to assistance of counsel.
    • 8th - prohibition against cruel and unusual punishment.
  2. exclusionary rule
    one who has been victim of illegal search or a coreced confession can have the product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution
  3. limitations on exclusion
    • does not apply to grand jury proceedings (a grand jury witness may be compelled to testify based on illegally seized evidence).
    • not an available remedy in civil proceedings.
    • to qualify for exclusion, search must either violate the federal constitution or a federal statute.
    • not an available remedy in parole revocation proceedings.
  4. use of excluded evidence for impeachment purposes
    all illegally seized evidence may be admitted to impeach the credibility of the D's trial testimony. This includes Miranda violation.
  5. the "fruit of the poisonous tree" doctrine
    will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality.
  6. 3 ways the gov can break the chain between an original, unlawful police action and evidence derived from it
    • 1. gov could show that it had indepedent source for that evidence (indepedent of original police illegality)
    • 2. inevitable discovery
    • 3. intervening acts of freewill on the part of the D.
  7. the harmless error test
    under this test, a conviction will be upheld if the conviction would have resulted despite the improper evidence.
  8. 4th amendment
    protects citizens from unreasonable searches and seizures.
  9. Terry Stops
    • police have authority to briefly detain a person even if they lack probable cause to arrest. in order to make such a stop, the police must have reasonable suspicision supported by articulable facts of criminal activity.
    • whether police have reasonable suspicion depends on the totality of circumstances.
  10. automobile stops
    • police may stop car if have at least reasonable suspicision that law has been violated.
    • exception = check-point roadblocks.
  11. Model for answering any search and seizure question
    • 1. Govermental conduct?
    • 2. Reasonable expectation of privacy? (standing)
    • 3. did popo have valid serch warrant?
    • 4. if warrant not valid, does an officer's good faith defense save the defect?
    • 5. if warrant invalid and cannot be saved by good faith defense or if the popo never had warrant at all, then you move to: Exceptions to the warrant requirement.
  12. did the popo have a valid search warrant?
    • 2 core requirements for a facially valid search warrant:
    • 1. probably cause
    • 2. particularity
  13. probable cause
    a fair probability that contraband or evidence of a crime will be found in the area searched.
  14. particularity
    • the warrant must state with particularity the ...
    • place to be searched and the
    • things to be seized.
  15. warrants and use of informants
    • if affidavit or PC based on informant info, its sufficiency is determined by the totality of circumstances.
    • informant's reliability / credibility and bases of knowledge are all relevant factors in making this determination.
    • though a valid warrant cannot be based wholly on anonymous tip, it ca be based in part on an anonymous tip.
  16. exigent circumstances for "no knock" entry
    • 1. popo need not "knock and announce" if doing so would be dangrous, futile, or inhibit the investigation.
    • 2. biggest fear of inhibiting investigation = destruction of evidence.
  17. officer's "good faith reliance" on a defective search warrant (+ exceptions)
    • general rule = popo's good faith reliance on shitty search warrant overcome defects with PC or particularity requirements
    • exceptions =
    • 1. affidavit underlying warrant is so lacking in PC that no reasonable popo would have relied on it.
    • 2. affidavit is so lacking in particularity that no reasonable popo would have relied on it.
    • 3. popo or prosecutor lied to or misled the magistrate when seekign the W.
    • 4. if the magistrate is biased, and therefore has abandoned his neutrality.
  18. Exceptions to the warrant requirement
    • 1. search incident to a lawful arrest.
    • 2. the automobile exception.
    • 3. plain view.
    • 4. consent.
    • 5. stop and frisk.
    • 6. evanescent evidence, hot pursuit, and special needs searches.
  19. search incident to a lawful arrest
    • arrest = lawful
    • arrest and search must be comtemporaneous in time and place.
    • scope limitation: person and area in to which he can reach either to procure weapon or to destroy evidence.
    • search incident to arrest & automobiles: popo may search interior of the car incident to arrest ONLY IF - arrestee is unsecured and still may gain access to the interior of the vehicle; or popo reasonably belive that evidence of the offense for which the person was arrested may be found in the vehicle.
  20. the automobile exception
    • must have PC.
    • only if before searching anything or anybody the popo have PC then they can search the whole car. this includes entire interior compartment, and the trunk. moreover if there is PC, the popo may open (without a warrant) any package, luggage or other container wich could reasonably contain the item they had PC to look for whether that package or whatever is owned by the passenger or the driver.
  21. plain view
    • to have valid plain view seizure, popo must be legitimately present at where he does the viewing of the item.
    • it must be immediately apperant that the item is contraband or a fruit of acrime.
  22. stop and frisk
    • 1. a terry stop is a brief detention for the purpose of investigating suspicious conduct
    • 2. the legal standard for stopping = reasonable suspicision
    • 3. Terry frisk is a pat down of the outer clothing and body to check for weapons.
    • 4. a Terry frisk is justified by concern for officer safety.
  23. Miranda warning
    triggered by - custodial interrogation
  24. invoking the right to counsel
    • 1. must be invoked by an unambiguous request
    • 2. if accused invokes his right to counsel, all questions must cease until -
    • a. the accused is given an attorney, or
    • b. the accused intiates further question.
    • * the popo may not even question about a totally different crime (as they might be able where the accused merely invokes right to remain silent).
  25. 5th versus 6th amendment right to counsel
    • 5th - (not offense specific) when suspect on hearing the Miranda warnings says "I want a lawyer," the Supreme Court interprets this to mean that the suspect needs the help of an attorney with the process of custodial interrogation, and therefore the police may not reinitiate interrogation on ANY TOPIC without his attorney present.
    • 6th - all other times (other than hearing the Miranda warinings) you getting a lawyer invokes your 6th amendment righ, and that right IS OFFENSE SPECIFIC. and the attorney would only have to be present at the interrogation if the D was being asked questions about that attorney's case.
  26. pretrial identification (due process)
    • techeniques that are so unessarily suggestive & so substantially likely to produce a misidentification that they deny due process of law.
    • remedy for denial of pretrial due process is to exclude the in-court ID.
    • the denial to the right to counsel or the denial of due process will not automatically get the remedy of excluding the in-court ID. the state can defeat the suspect's claim for that remedy by showing an adequate indepedent source for that in-court ID (indepedent of that bad line-up).
  27. grand juries
    • exclusion does nto apply to the conduct of grand juries. accordingly, a GJ witness may be compelled to testify based on illegally seized evidence.
    • the proceedings of grand juries are secret. D has no right to appear and no right to send in witnesses.
  28. right to jury trial
    • attaches anytime the D is tried for offense for which max sentence is over 6 months. if up to or including 6 months = no constitutional right to jury trial.
    • minimum number of jurors allowed = 6
  29. (jury) cross sectional requirement
    you have right to have jury pool reflect a fair cross-section of the community; but you have no right to have the impanaled jury reflect a fair cross section of the community.
  30. double jeopardy
    • jeopardy attaches in a jury trial when the jury is sworn.
    • in a bench trial, jeopardy attaches when the 1st witness is sworn.
    • jeopardy does not generally attach when the prodeedings are civil.
    • retrial after successful appeal is not double jeopardy.
    • bars retrial by same sovereigns.
  31. prior statement of identification
    a witness' prior statement identifying a person after perceiving him is nonhearsay under the FRE and is a hearsay exception under CA law. However, in order to protect the defendant's rights, the declarant-witness must testify at trial and be subject to cross-examination.
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