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MBE Bar Exam - Crim Pro
MBE Bar Exam Crim Pro
68
Law
Professional
06/22/2012

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Term
Exceptions to government action requirement for constitutional protection
Definition
Persons acting under gov't direction
Private defense counsel for ineffective assistance of counsel claims under the Sixth Amendment.
Term
When does Seizure occur?
Definition
Restraint on freedom of movement by force or show of authority
Test: can a reasonable person disregard the officer
Term
Types of seizures
Definition
-Stop and Frisk (Terry)
-Arrest
-Traffic Stops
Term
Requirement for stop and frisk
Definition
-reasonable suspicion
-based on articulable facts
Term
Stop and Frisk - scope and duration
Definition
limited in duration, pat down for weapons
-cannot initiate search for evidence
Term
When can stop and frisk become arrest
Definition
if probable cause develops during frisk
-if encountered objects with obvious shape, can seize object
Term
Traffic Stop requirement
Definition
-Reasonable Suspicion OR
-if they pull over everyone
Term
Arrest requirement
Definition
-Probable Cause (with or without warrant)
-Pre-text arrest okay
Term
Arrest Warrant requirement
Definition
-Neutral, detached magistrate
-based on finding of probable cause
-Name offense and identiy
Term
How to enter dwelling
Definition
-with warrant
-exigent circumstances
-consent
Term
Exigent Circumstances
Definition
-hot pursuit
-danger to others
Term
Warrantless arrest
Definition
-crime committed in presense of officer
-or probable cause that felony committed
Term
prosecution and arrest
Definition
whether arrest was legal or not; no bearing on prosecution
Term
Searches incident to arrest
Definition
-search person arrested
-search immediate surroundings
(protect from weapons, danger)
(prevent destruction/concealment of evidence)
Any of these evidence can be used
(street: wingspan home: immediate arrest area)
Term
Arrest of drivers and passengers
Definition
Can search passenger area of the vehicle, only if arrestee might access area or believes contains evidence
Term
Impounded cars
Definition
can be searched for inventorying
Term
Effect of illegal arrest
Definition
evidence gets excluded from prosecution
Term
Define search
Definition
government conduct violating reasonable expectation of privacy
Term
What ares do not have reasonable expectation of privacy
Definition
-garbage
-open fields
-public streets
Term
Search Warrant Requirement
Definition
-Detached neutral magistrate
-Probable cause to believe items sought: fruit, instrumentality, or evidence of crime
-describe property and place with particularity
Term
Wiretapping and warrants
Definition
-need warrant to wiretap
-specific in identifying conversations
-time period when warrant will end
Term
Exceptions to warrant requirement (for search)
Definition
ESCAPES
-Exigent Circumstances
-Search Incident to Arrest
-Consent
-Automobile
-Plain view
-Evid. from Administrative searches
-Stop and Frisk
Term
Is warrant necessary for evidnece obtained in lawful arrest?
Definition
no
Term
if probable cause, searching automobile:
Definition
can search in vehicle and containers inside that can contain contraband
Term
Administrative warrants
Definition
no PC required (health, fire, etc)
Term
Warrantless admin search examples
Definition
evidence CAN be used
plane boarding area
international borders
gun shops, liquor store, etc
special needs - ex: railroad employees after accident, etc
inventory search
roadblocks
Term
Exception to 5th amendment privilege against self incrimination
Definition
If immunity has been given
physical evidence (only testimonial evidence covered)

Routine booking statements
Term
5th amendment: Miranda rights
what is required to invoke miranda?
Definition
Custodial - arrested or otherwise not free to leave
Interrogation - Words or conduct that would invoke response
Routine booking statements excluded
Term
Miranda warning elements
Definition
Right to remain silent
Statement given can be used in court
Right to consult atty and present during interrogation
Right to attorney appointed
whether they understand
Term
When must police cease asking
Definition
Invoking right to remain silent. must be invoked.
-passage of time allows questioning again, but fresh warnings required

Invoking right to counsel. must affirmatively state
-questioning must stop until atty present, or initiates contact w/ police

2 weeks - can be used if warnings given again (did they waive?)
Term
Exception to miranda warning
Definition
Public safety exception
Term
What interrogation tactics are allowed?
Definition
must be voluntary
No threats
Deceit okay
Term
5th amendment violation consequences: involuntarily obtained evidence
Definition
can never be used in court
fruit of poisonous tree applies
Term
5th amendment violation consequences: Mere miranda violations
Definition
ex: no warning given, etc
inadmissable for case in chief, but can be used for impeachment

Fruit of poisonous tree does not apply if voluntary
Term
what is 6th amendment?
Definition
right to the assistance of counsel for his defense
Term
5th/6th amendment differences
Definition
6th= after indictment, formal charges unless waived. attaches automatically
5th= only if invoked by d

6th= offense specific. only for that offense
6th= applies to all sorts of questioning
5th= all incidents, but only for custodial questioning
Term
What does 6th amendment attach to
Definition
Felonly charges
misdemeanor offenses with jail time

at all critical stages of proceedings
Term
examples of critical stages for purposes of 6th amendment
Definition
 Hearings
 Post-indictment lineups and identifications
 Post-indictment interrogation
 All parts of the trial process, including guilty pleas, sentencing and appeals as of right
Term
non critical stages of proceedings for purposes of 6th amendment
Definition
„h Investigative lineups
„h Witnesses looking at photo arrays
„h Discretionary appeals and post-conviction (habeas) proceedings
Term
types of identification procedures
Definition
photo array and lineups
Term
rights of D for photo array
Definition
no right to be present
no right for lawyer to be present
must be notified
Term
rights for lineups
Definition
pre-indictment lineups: no right to counsel
Post-indictment lineups: right to counsel present
Term
Excluding lineup evidence
Definition
must be impermissibly suggestive
-if so, in-court ID admissible only by clear and convincing evidence
Term
Grand jury proceedings and exclusionary rule
Definition
excludes eveidnece only at trial, not grand jury.
Term
Exceptions to exclusionary rule
Definition
-knock and announce warrants: even if failed to K and A, admissible
-Inevitable discovery: lawful means
-Independant source: in part discovered based on independant source
-Attenuation in causal chain: intervening events remove taint
-Good Faith: reliance on tainted warrant, law declared unconstitutional later, etc.
-isolated negligence: must be some deliberate act to trigger exclusion. good faith helps
Term
What kind of warrant may officers not rely on for good faith exception?
Definition
-obtained by fraud
-defective on its face (barebones)
-magistrate abandoned judicial role
Term
How to analyse fact patter
Definition
-has there been violation?
-if so, does exclusionary rule apply?
-if so, what are exceptions?
-should it be overturned? apply harmless error rule
Term
Test for competence to stand trial and plead guilty
Definition
comprehends nature of proceedings and able to assist his counsel in defense

For pleading; knowingly and intelligently waived rights to trial
Term
8th amendment protection for bail
Definition
prohibits setting excessive bail, but bail not required universally
Term
When is bail unavailable?
Definition
generally, available unless poses danger to community or a flight risk
Presumption in favor of release before trial, and opposite after conviction
Term
Requirements for pleading guilty
Definition
-Judge asks and makes sure understand rights, and possible sentences
-Judge makes sure factual basis for plea
-judge makes sure plea did not result from force, threats, or promises not in agreement

collatoral consequences need not be advised
Term
What sorts of cases have a right to jury trial
Definition
offenses which may give you 6 months + jail time (all serious offenses)
Term
How much jury and what kind of verdict required
Definition
In Fed, 12, unanimous
State: 6 or more. unanimous if 6, maj if more than 6
Term
Venier/Jury Pool requirement
Definition
must represent fair cross section of community where jury is selected
Term
Requirement of petit jury
Definition
Needs to be impartial. Does not have to reflect cross section
Term
Types of challenges to jury selection and how many can be used
Definition
For cause - unlimited. Preemptry: 3 for fed, 6 for CA
Term
Limitations on preempt challenges
Definition
Can't discriminate on race or gender
Term
What happens if prosecutor is shown to have used challenges discriminately
Definition
conviction overturned regardless of prejudice
Term
How to calculate time for speedy trial
Definition
Time b/w alleged trial and crime; completion of crime. For conspiracy, etc. objective of crime must be completed or abandoned
Term
Right to speedy Trial - which part of constitution?
Definition
Due Process - pre-accusation delay
Speedy Trial Clause (6th amend) - after arrest/indictment (w/e comes first)
Term
Factors for speedy trial right
Definition
Length of delay
Reason for delay
prejudice to defendant
did defendant assert his rights
Term
when can courts close trial to public?
Definition
substantial likelihood of prejudice
Term
Explain crawford rule
Definition
If statement is testimonial, then cannot admit if: dec. unavailable + no opportunity to cross examine
Term
define 'testimonial'
Definition
made under circumstances where objective witness reasonably to believe that the statement would be available for use at a later trial
Term
Bruton rule
Definition
D's testimony can always be used against himself
Co-D's testimony can't be used if co-D refuses to testify
Term
Two types of Bias judges might have
Definition
actual bias
apparent bias
Term
Define actual bias
Definition
Interests that would impair judge's impartiality
Term
Prosecutor duties in trial
Definition
-cannot refer to D's failure to testify
-present false testimony
-turn all over exculpatory evidence
not guilty, impeachment, change of outcome, etc.
-contact D outside lawyer's presense
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