criminal procedure flash cards copyright 2010 patrick gould, j.d., m.a. gould's bar examination...

CRIMINAL PROCEDURE FLASH CARDS

COPYRIGHT 2010 PATRICK GOULD, J.D. , M.A.

Gould's Bar Examination Flash Card Webinar SeriesCRIMINAL PROCEDURE

CRIMINAL PROCEDURE SHOPPING LIST





1. 4TH AMENDMENT SEARCHES AND SEIZURES.

2. WARRANT SEARCHES.

3. SPECIFIC SEARCHES.

4. 5TH AMENDMENTMIRANDA RIGHTS.

5. 5TH AND 6TH AMENDMENT RIGHTS TO COUNSEL.

6. THE EXCLUSIONARY RULE.

7. TRIAL-BASED ISSUES.

CRIMINAL PROCEDURE SHOPPING LIST

SEARCHES AND SEIZURES





SEARCHES AND SEIZURES

FOURTH AMENDMENT.REASONABLE EXPECTATION OF PRIVACY. ITEMS OF A PUBLIC NATURE. GOVERNMENT OFFICIAL. SEARCH WITH A DEVICE NOT IN GENERAL USE.

WARRANT SEARCHES





WARRANT SEARCHES

VALID SEARCH WARRANT. DETACHED AND NEUTRAL MAGISTRATE.PROBABLE CAUSE. Information from Informants.More Likely Than Not.Totality of the Circumstances.GOOD FAITH OATH OR AFFIRMATION.PARTICULARITY. Place, Things, Person. DEFECTIVE SEARCH WARRANT.

EXECUTION OF A SEARCH WARRANT.NO UNREASONABLE DELAY.KNOCK AND ANNOUNCE RULE.FORCIBLE ENTRY.SCOPE OF THE SEARCH.

EXCEPTIONS.

OTHER SPECIFIC SEARCHES, con’t






BORDER SEARCHES. ROUTINE WARRANTLESS SEARCHES.ROVING BORDER PATROLS REQUIRE REASONABLE SUSPICION. SOBRIETY CHECKPOINTS.NO INDIVIDUALIZED SUSPICION NEEDED.NOT ALLOWED FOR ORDINARY CRIMINAL ACTIVITY.

CONSENT. VOLUNTARY, INTELLIGENT, WITHOUT COERCION.VALID AUTHORITY TO CONSENT. Additional Inquiry by Police.JOINT / COMMON AUTHORITY TO CONSENT. BUILDING AND ADMINISTRATIVE INSPECTIONS.NON-EMERGENCY AND NON-CONSENT ADMINISTRATIVE SEARCHES REQUIRE ADMINISTRATIVE WARRANT BASED ON REASONABLE LEGILATIVE OR ADMINISTRATIVE STANDARDS.




SPECIAL NEEDS SEARCHES.NOT LAW ENFORCEMENT-RELATED.IMPRACTICABLE TO SECURE A WARRANT.GOVERNMENT INTEREST OUTWEIGHTS PRIVACY. SEARCH OF PAROLEES AND PROBATIONERS.NO PROBABLE CASUE IF CONDUCTED PURSUANT TO VALID REGULATION. GOVERNMENT EMPLOYEE SEARCHES.NO WARRANT OR PROBABLE CAUSE.SEARCH MUST BE WORK RELATED, AND REASONABLE.

SCHOOL SEARCHES.SCHOOL OFFICIAL MAY SEARCH STUDENT LOCKERS OR STUDENTS IF REASONABLE GROUNDS.LESS DISCRETION FOR SCHOOL OFFICIALS WORKING WITH POLICE. DRUG TESTING.NOT ALLOWED IF OBJECTIVE IS TO SECURE CRIMINAL EVIDENCE.MUST HAVE STRICT REGULATIONS.NO ARBITRARY OR INTRUSIVE PROCEDURES.EMPIRICAL EVIDENCE INDICATES NEED FOR TESTING.

ARREST IN HOME, BUT STARTING OUTSIDE OF

HOME





ARREST IN HOME, BUT STARTING OUTSIDE OF HOME

REASONABLE SUSPICION. Less than Probable Cause. Based on Objective Facts related to Criminal Activity. Subject Flees. PROBABLE CAUSE TO ARREST.Police May Follow into House Based on Hot Pursuit and Exigent Circumstances / Evanescent Evidence. ONCE INSIDE HOUSE MAKE A LAWFUL ARREST. SEARCH INCIDENT TO ARREST.WINGSPAN SEARCH.PROTECTIVE SWEEP.PLAIN VIEW DOCTRINE.

EXCEPTIONS TO INVALID SEARCHES





EXCEPTIONS TO INVALID SEARCHES

HOT PURSUIT. EXIGENT CIRCUMSTANCES or EVANESCENT EVIDENCE. SEARCH INCIDENT TO A LAWFUL ARREST / WINGSPAN SEARCH. PROTECTIVE SWEEP. PLAIN VIEW DOCTRINE. CONSENT.

MIRANDA VIOLATIONS





MIRANDA VIOLATIONSMIRANDA VIOLATIONS.5TH AMENDMENT. MAY NOT BE COMPELLED TO BE WITNESS AGAINST SELF IN A CRIMINAL CASE.MIRANDA WARNINGS. Not Offense Specific. RIGHT TO ATTORNEY. Appointed for Felonies if Indigent.

ATTACHMENT OF PRIVILEGE AGAINST SELF-INCRIMINATION.CUSTODY.INTERROGATION. GOVERNMENT OFFICIAL. VOLUNTARY STATEMENTS. NOT PROTECTED. WAIVER OF MIRANDA RIGHTS. KNOWING, INTELLIGENT, VOLUNTARY and EXPLICIT. FAILURE TO RECITE MIRANDA WARNINGS.HARMLESS ERROR.RENDERS CONFESSIONS INADMISSIBLE AT TRIAL.CONFESSIONS MAY BE USED TO IMPEACH DEFENDANT.

MIRANDA VIOLATIONS, con’t





MIRANDA VIOLATIONS, con’t

5TH AMENDMENT RIGHT TO COUNSEL. INTERROGATION MUST CEASE.ATTORNEY MUST BE PRESENT AT SUBSEQUENT INTERROGATION.NOT OFFENSE SPECIFIC. FIFTH AMENDMENT PRIVILEGE AGAINST SELF-INCRIMINATION for TESTIMONIAL EVIDENCE.MUST CLAIM PRIVILEGE THE FIRST TIME ASKED QUESTION AFTER TAKING OATH.DOES NOT APPLY TO REAL OR PHYSICAL EVIDENCE. CONFESSIONS. ADMISSIBLE AS EVIDENCE IN A CRIMINAL TRIAL, UNLESS VIOLATION OF MIRANDA.

EXCEPTIONS TO MIRANDA.PUBLIC SAFETY.ROUTINE BOOKING QUESTIONS.JAIL-HOUSE INFORMANT. GRANT OF IMMUNITY.USE.DERIVATIVE.TRANSACTIONAL.ENDS WHEN NO POSSIBILITY OF INCRIMINATION, or TAKING STAND.

SIXTH AMENDMENT RIGHT TO COUNSEL





SIXTH AMENDMENT RIGHT TO COUNSEL

SIXTH AMENDMENT RIGHT TO COUNSEL.AFTER ADVERSARIAL PROCEEDINGS / CRITICAL STAGES OF PROSECUTION.POLICE MAY NOT ELICIT INCRIMINATING STATEMENTS WITHOUT PRESENCE OF COUNSEL.WAIVER.OFFENSE SPECIFIC.INDIGENT MUST BE GIVEN COUNSEL FOR FELONIES, OR FOR MISDEMEANORS RESULTING IN JAIL TIME. CONFESSIONS. UNCONSTITUTIONAL IF GIVEN DURING A CRITICAL STAGE OF CRIMINAL PROCEEDING. PRE-TRIAL IDENTIFICATION PROCEDURES.RESTRICTIONS HELP ASSURE PROPER IDENTIFICATION.IF PRE-TRAIL ID PROCEDURE WAS IMPROPER, IN-COURT ID MAY BE EXCLUDED.EXCEPTION. Independent Source.

SIXTH AMENDMENT RIGHT TO COUNSEL, con’t






PRE-INDICTMENT ID PROCEDURE / DUE PROCESS.DUE PROCESS STANDARD.LINE-UPS, SHOW-UPS, PHOTO ID's.UNNECESSARILY SUGGESTIVE.SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION. POST-INDICTMENT ID PROCEDURE / RIGHT TO COUNSEL.AFTER FORMAL CHARGES FILED.6TH AMENDMENT RIGHT FOR PRESENCE OF ATTORNEY AT LINE-UP OR SHOW-UP.NO SUCH RIGHT FOR PHOTOS. EXCEPTIONS TO THE 6TH AMENDMENT RIGHT TO COUNSEL.JAIL-HOUSE INFORMANTS THAT ARE PASSIVE LISTENERS.NO PUBLIC SAFETY EXCEPTION.




SUPRESSION OF IN-COURT IDENTIFICATION.PRE-TRIAL IDENTIFICATION PROCEDURE IMPROPER.DEFENDANT MAY SUPPRESS SUBSEQUENT IN-COURT ID.EXCEPTIONS. Independent Source for ID, Witness had Opportunity to See Defendant at Time of the Crime, or Witness Had Earlier Identified the Defendant. INEFFECTIVE ASSISTANCE OF COUNSEL.ATTORNEY'S CONDUCT DEFICIENT, AND DEVIATED FROM REASONABLY PREVAILING NORMS.BUT FOR DEFICIENCY OF ATTORNEY RESULT OF CASE WOULD HAVE BEEN DIFFERENT.FACTORS. Professional Judgment, Early Interview of Defendant, Defendant Not Kept Informed or Consulted, Attorney Did Not Conduct Prompt Investigation, or Attorney Did Not Display Competent Legal Skills and Knowledge.

THE EXCLUSIONARY RULE





THE EXCLUSIONARY RULE

THE EXCLUSIONARY RULE. USE OF ILLEGALLY SEIZED EVIDENCE.STANDING TO ASSERT THE EXCLUSIONARY RULE. GOOD FAITH DEFENSE. POLICE RELIANCE ON CASE LAW LATER CHANGED.POLICE RELIANCE ON UNCONSTITUTIONAL STATUTE.GOOD FAITH RELIANCE OF DEFECTIVE SEARCH WARRANT THAT WAS PROPERLY EXECUTED. FRUIT OF THE POISONOUS TREE / DERIVATIVE EVIDENCE. EVIDENCE SEIZED DUE TO PREVIOUS SEIZED EVIDENCE.IF PRIOR EVIDENCE WAS IMPROPERLY SEIZED, THEN IS CONSIDERED A POISONOUS TREE.LATER EVIDENCE IS TAINTED FRUIT OF POISONOUS TREE.EXCEPTIONS. Independent Source Exception. Inevitable Discovery Rule. Purged Taint / Attenuated Connection Principle.

GRAND JURIES





GRAND JURIES

GRAND JURIES.PROBABLE CAUSE.DEFENDANT COMMITTED CRIME.MAY USE ILLEGALLY OBTAINED EVIDENCE AND HEARSAY.NO EXCLUSIONARY RULE.SECRET PROCEEDINGS, WITH NO RIGHT TO APPEAR AND NO APPEAL.STATES MAY DECIDE TO USE INFORMATION SIGNED BY PROSECUTOR.

TRANSACTIONAL IMMUNITY for WITNESSES





TRANSACTIONAL IMMUNITY for WITNESSES

TRANSACTIONAL IMMUNITY for WITNESSES. GRAND JURY PROCEEDINGS.WITNESSES IMMUNE FROM PROSECUTION FOR TRANSACTIONS TO WHICH THEY TESTIFY.MAY NOT CONSULT WITH ATTORNEY DURING GRAND JURY PROCEEDINGS.IF WAIVER OF IMMUNITY, THEN MAY CONSULT WITH ATTORNEY.DEFENDANT MUST BE GRANTED OPPORTUNITY TO TESTIFY IF THEY WAIVE IMMUNITY.

TRIALS





TRIALS

PRELIMINARY HEARING. DETERMINES IF PROBABLE CAUSE TO PROSECUTE EXISTS. PRE-TRIAL DETENTION. BAIL ISSUES MAY BE IMMEDIATELY APPEALED.PREVENTIVE DETENTION IS UNCONSTITUTIONAL. RIGHT TO NON-EXCESSIVE BAIL.8TH AMENDMENT.NON-EXCESSIVE BAIL.INDIVIDUALIZED CONSIDERATION. RIGHT TO A SPEEDY TRIAL.6TH AMENDMENT.ATTACHES AUTOMATICIALLY AFTER FORMALLY ACCUSED OF OFFENSE.COURT BALANCES LENGTH OF DELAY AGAINS REASON FOR DELAY.

TRIALS, con’t





TRIALS, con’t

PROSECUTORIAL DUTY TO DISCLOSE EVIDENCE.AFTER JURY IS SWORN BUT BEFORE PROSECUTOR'S OPENING STATEMENT, PROSECUTOR MUST GIVE DEFENDANT STATEMENTS OF WITNESSES AND CRIMINAL RECORDS, OR ELSE THERE MAY BE A REVERSAL.DEFENDANT, UPON DEMAND MAY RECEIVE, FOR INSPECTION AND COPYING. His Statement, Co-Defendant Statements, Tapes or Recorded Conversations, Property, Photos or Drawings by Police, Mental or Scientific Tests, Dates and Places, Specific Misconduct by Defendant, etc. APPEAL AND RE-CONVICTION. NO HARSHER SENTENCE ON RE-TRIAL AFTER SUCCESSFUL APPEAL, UNLESS TRIAL DE NOVO. THE DEATH PENALTY.DEFENDANT MUST BE GIVEN OPPORTUNITY TO PRESENT MITIGATING CIRCUMSTANCES.

TRIALS, con’t





TRIALS, con’t

PLEA BARGAINS.WAIVER OF A JURY TRIAL.RECEIPT OF THE PLEA BARGAIN. Competent Defendant, that Understands the Charges and the Consequences of a Plea Bargain.VOLUNTARY AND INTELLIGENT, ON THE RECORD.JUDGE MUST BE PERSONALLY CERTAIN THAT DEFENDANT UNDERSTANDS THE PLEA BARGAIN.DEFENDANT MAY WITHDRAW PLEA BEFORE SENTENCING.EXCEPTIONS. Guilty Plea May be Changed After Sentencing if Involuntary, Mistakes in Plea Taking Ceremony, Court Lacked Jurisdiction, Ineffective Assistance of Counsel, or Failure of Prosecutor to Keep Plea Bargain.

TRIALS, con’t





TRIALS, con’t

DOUBLE JEOPARDY. ATTACHES WHEN A JURY IS IMPANELED AND SWORN, OR WHEN FIRST WITNESS IS SWORN FOR A BENCH TRIAL. NOT AVAILABLE FOR CIVIL TRIALS OR GRAND JURY PROCEEDINGS. BARS A CRIMINAL RE-TRAIL AFTER A DECSION ON THE MERITS. SAME OFFENSE. EXCEPTIONS. Hung Jury, Manifest Necessity, Successful Appeal, Breach of Plea Bargain by Defendant, Dismissal on Non-Substantive Issue, Separate Sovereigns, Separate Trial and Separate Punishment.

TRIALS, con’t





RIGHT TO A JURY TRIAL.RIGHT ATTACHES WHEN MAXIMUM SENTENCE EXCEEDS SIX MONTHS OF JAIL TIME.RIGHT TO BE PRESENT AT TRIAL MAY BE WAIVED.PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT ALL ELEMENTS OF CRIME CHARGED.DEFENDANT MAY PROVE AFFIRMATIVE DEFENSES WITH PREPONDERANCE OF THE EVIDENCE.CRIMINAL CONTEMPT HAS NO AUTHORIZED MINIMUM. JUDGE.CRIMINAL DEFENDANT HAS RIGHT TO UNBIASED JUDGE. JURIES.MUST CONSIST OF AT LEAST SIX PEOPLE.IF ONLY SIX JURORS, DECISION MUST BE UNANIMOUS.JURY POOL SHOULD REFLECT A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY.MAY NOT USE PEREMPTORY CHALLENGES TO EXCLUDE JURORS FOR RACE OR GENDER.JURY MAY NOT BE SWAYED BY MEDIA COVERAGE.

TRIALS, con’t

TRIALS, con’t





TRIALS, con’tHABEAS CORPUS. UNSUCCESSFUL CRIMINAL DEFENDANT.EXHAUSTION OF STATE REMEDIES.DEFENDANT MAY FILE WRIT OF HABEUS CORPUS.CIVIL SUIT CONTESTING UNLAWFUL DETENTION VIA PREPONDERANCE OF THE EVIDENCE. PRISONER'S RIGHTS. RESTRICTION MUST BE A REASONABLE PENOLOGICAL INTEREST. ENTRAPMENT. PREDISPOSITION TEST. POLICE CONDUCT RULE. CONFRONTATION CLAUSE. 6TH AMENDMENT. RIGHT TO BE PRESENT AT TRIAL. RIGHT TO FACE-TO-FACE CONFRONTATION. RIGHT TO CROSS-EXAMINATION.

criminal procedure flash cards copyright 2010 patrick gould, j.d., m.a. gould's bar examination...

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