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Criminal Procedure
Bar Study

Additional Law Flashcards




Key Amendments in Criminal Pro

4th Amendment: Unreasonable search and seize

5th: privilege against compulsory self-incrimination and double jeapardy

6th: Right to speedy trial, trial by jury, confront witnesses, right to assistance of counsel.

8th: cruel and unusual punishment.


remedy whereby someone who has been victim of an illegal or coerced confession can have that product of that illegal search or that coerced statement excluded from any subsequent criminal prosecution.

a. Does not apply to grand jury proceedings or witnesses being compelled to testify in GJ proceedings about illegally seized evidence.

b. Not availabe in civil cases

c. must be a violation of fed. const. or statute.

d.not available in parol revocation proceedings

e. Can be used to impeach credibility of D's testimony, but only D.

f. Does not apply to violation of knock and announce in execution of search warrant if officer reasonably believes knocking and announcing would be futile, dangerous, or inhibit investigation.

1. SC has gone further to suggest that ex. rule is not available even absent exigent circumstances.


Under fruit of poisonous tree doctrine, doctrine will not only exclude illegally seized evidence, but will also exclude all evidence obtained or derived from police illegality.

a. Not available  if gov. can show Independent Source for evidence, independent of original police illegality.

b. inevitable discovery.

c. Intervening acts of free will on the part of defendant.

Is a Warrant generally required for an arrest?

Generally no if arresting someone in a public place, but is required in non-emergency arrest of an individual in his own home. 


Police need PC to arrest you and compel you to come to the police station either for fingerprinting or interrogation.

Search and Seizures

Step one: Government Conduct?

1. The publicly paid police, on or off duty,

2. any private party acting at the direction of public police.

a. Privately paid police do not constitute governmental conduct unless they are deputized with power to arrest.

Step 2: Reasonable expectation of privacy to have standing?

1. Automatic Privacy expectation

a. If you own the premise searched

b. If you live on the premise searched, whether you have ownership interest or not.

c. Overnight guests

2. Sometimes standing

a. You own the property seized: if you have a reasonable expectation of privacy in the item or area searched.

b. If you are a passenger in a car: Passengers in cars they don't claim to own and who don't claim to own the property taken out of the car do not have standing to object just because they were legitimately present when search took place.

3. No expectation of privacy to anything you hold out to the public everyday, including:

a. Voice

b. Handwriting

c. accounts held by a bank

d. Monitoring the location of your car on public street or in your driveway

e. anything that can be seen across open fields or by flying over public air space.

f. odors emenating

g. your garbage set out on the curb

Step 3: Did the police have a valid search warrant

1. A search warrant requires probable cause and particularity (place searched and things seized)

a. A fair probablility that contraband or evidence will be found in the area searched.

1. Can rely on hearsay

2. You can have a valid warrant base din part on an informant's tip even though that informant is annonymous.

Step 4: If the warrant is not valid, does an officer's good faith defense save the defective warrant?

1. Officer's good faith reliance on a search warrant overcomes defects with PC or Particularity requirements, unless

a. THe affidavit underlying the warrant is so lacking in PC that no reasonable officer would have relied on it.

b. So lacking in particularity that " "

c. The police officer or prosecutor lied to or misled magistrate when seeking warrant.

d. If magistrate is biased, and therefore has wholly abandoned his or her neutrality.

Step 5: If warrant is invalid and can't be saved by good faith defense, or if no warrant at all, then is there an exception to the warrant requirement?

1. Search incident to arrest

a. Arrest must be lawful.

b. Must be contemporaneous in time and place.

c. The person and areas to which he can reach either to procure a weapon or to destroy evidence (wingspan)

1. In a car includes entire interior compartment (not the trunk), but only if arresstee is unsecured and still making access to interior OR police reasonably believe that evidence of offense for which person was arrested will be found in vehicle

2. The automobile Exception

a. In order for police to search anything or anybody under auto exception, must have PC before such search. If this is the case, can search entire car. Can also open any container which could reasonably contain evidence which they have PC to search.

3. Plain view

a. Officer must be legitimately present.

4. Voluntary and intelligent consent.

a. If a police officer claims to have a warrant and doesn't, this negates consent.

b. If two people with ownership are present and one denies consent, then denial will control.

5. Stop and Frisk

a. A brief detention for the purpose of investigating suspicious conduct base don reasonable suspicion.

b. Terry frisk is a pat down of the outer clothing and body to check for weapons, and is justified by concern for officer safety.

c. Officer can pull out evidence if he reasonably believes that by plain feel that it is a weapon or contraband.

6. Hot pursuit and Evanescent evidence

a. Evidence that might dissapear if the police took the time to get a warrant 

b. If police are within 15 min behind a fleeing felon, it is a valid hot pursuit.

1. If truly in hot pursuit, can enter anyone's home without a warrant  and any evidence in plain view will be admissible.


Wiretapping and Eavesdropping

All wiretapping and eavesdropping require a warrant.

1. Exception: unreliable ear

a. Everybody in society assumes the risk that the person whom he is speaking will either consent to the government monitoring the conversation or will be wired. Speaker has no legitimate 4th amendment claim if he makes no attempt to keep the conversation private.


Confessions and Miranda Warnings

You have the right to remain silent, anything you say or do can be used against you, you have the right to an attorney, if you can't afford one one will be appointed for you, you have the right to terminate the interrogation at any time.

1. Custody and interrogation is required to trigger required miranda warnings.

a. Custody

1. You are in custody if at any time of the interrogation you are not free to leave (an objective test).

a. Probation interviews and routine traffic stops are not custodial.

b. Interrogation

1. any conduct where the police knew or should have known they might elicit incriminating response from the suspect.

a. Not required for spontaneous statements.

c. A waiver of Miranda must be knowing, voluntary, and intelligent (silence or shrug of shoulders is not enough)

d. Once the defendant asserts his right to terminate interrogation and requests an attorney, re-initation of the interrogation by the police on ANY topic without his atty present violates his 5th amm. right to counsel.

1. All other times regarding getting a lawyer invokes 6th amendment right and is offensive specific.

*Look at time interrogation is taking place, the crime being asked about, and the Defendant's choice to waive or invoke.

Pretrial Identification (Criminal Pro)

two basis at which to challenge pre-trial ID

1. Denial of right o counsel

a. Post-charge lineups

b. Show-ups (one on one) giver rise to right to counsel.

c. No right to counsel when they go out to show the victim or witness photographs.

2. Denial of due process.

a. ID techniques that are so unnecessarily suggestive and so substantially likely to produce a misidentification they they deny due process.

3. Remedy: Exclude the in-court ID.

4. Denial of counself or due process will not automatically get remedy, and state can defeat the defense by showing an adequate indepenedent source for that in court ID (independent of bad lineup, such as ample opportunity to observe guy at crime)

Pretrial Procedures (Bail, Grand Juries)


1. Bail issues are immediatly appealable.

2. preventive detention is constitutional

B. Grand Juries

1. Exclusion does not apply.

2. proceedings are secret. D with no right to appear or send witnesses.

Trial (unbiased judge, jury, ineffective ass. of counsel)

1. Financial interest in the case or some actual malice against defendant will preclude judge from being able to hear the case.


2. Right to jury if offense carries maximum sentence exceeds 6 months or sum of sentences exceeds that amount. The minimum number of jurors is 6 and must be unanimous in that case.


3. you have the right to have the jury pool reflect a fair cross section of the community, but you have no right to have the empaneled jury reflect a fair cross section of the community.


4. Preemptory challenges are ok so long as not based on race or gender.


5. There must be deficient performance by counsel and, but for deficiency, the result of the proceeding would have been different.

Guilty Pleas and Plea Bargaining

A. Guilty plea waivers for the right to jury trial.

1. SC will not disturb guilty pleas after sentencing

2. SC has adoped the K theory of plea bargaining: terms of bargain should be revealed in the record at the plea taking and that both sides will be held to that specific deal.

B. If D pleads Guilty, D must specifically address the D on the Record:

1. Nature of charge

2. Maximum authorized penalty and any mandatory minimum penalty

3. has the right to plead not guilty and demand a trial.

C. Valid reasons for withdrawing plea after sentence.

1. plea was involuntary (mistake in plea ceremony)

2. Lack of Jx

3. Ineffective ass. of counsel

4. Failure of prosecutor to keep an agreed upon plea bargain.

Death penalty

Any death penalty statute that does not give defendant a chance to present mitigating facts and circumstances is unconstitutional.


There can be no automatic category for imposition of death penalty.


Only a jury may determine aggravating factors justifying imposition of death penalty.

Double Jeopardy

Jeopardy attaches in jury trial when jury is sworn and in a bench trial when first witness is sworn.

a. Does not generally attach when proceedings are civil

b. Exceptions permitting retrial

a. Hung jury

b. Mistrials for manifest necessity (D gets appendisitis during trial) or not based on merits.

c. Retrial after a successful appeal

d. Breach an agreed upon plea bargain by defendant.

c. Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other does not.

1. However, being put on trial for a greater offense bars retrial for any lesser included offense. Similarly, if you are tried for a lesser, you cannot be retried for a greater.

a. Exception: can be retried for murder if a battery results in death.

d. Double jeopardy bars retrial for the same offense by the same sovereign (state and federal).

5th am. privileged against self incrimination

Can be asserted by anyone in any type of case wherein response might incriminate self.

a. Must assert privilege the first time the question is asked or you will have waived your 5th am. privilege for all subsequent criminal prosecutions.

b. Must be claimed in civil proceedings to prevent privilege from being waived in later criminal posecution.

c. Does not protect citizens from having gov. use their bodies in ways to incriminate (hair and blood samples) only protects from compelled testimony.

d. The prosecutor cannot make a negative comment on D's failure to testify or on remaining silent after being given miranda.

e. Privilege can be eliminated in 3 ways:

1. Person has immunity to testimony

2. No possibility of incrimination (SOL)

3. Waiver: D takes witness stand waives 5th as to all legitimate subjects of cross examination.

Public School Searches

1. Public school children ingaged in extracurriculars can be drug tested without warrant or suspicion.


2. Warrantless searches of public school childrens effects is permissible to investigate violation of school rules

a. Reasonable if offers a moderate chance of finding evidence of wrongdoing, measures adopted to carry out search are reasonably related to objective of search,  and not excessively intrusive.

AZ exam portion of Criminal pro

Constitutional presumption of openness of criminal trials. However, presumption can be overcome if compelling interest.

Defendant does have option of deferring opening statement until close of prosecution's case

Right to waive jury trial in favor of bench not an absolute one of accused. Contigent on approval of prosecutor.

Judge cannot force hung jury to go back into room and delibrate until they reach a verdict

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