Term
| Exceptions to government action requirement for constitutional protection |
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Definition
Persons acting under gov't direction
Private defense counsel for ineffective assistance of counsel claims under the Sixth Amendment. |
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Term
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Definition
Restraint on freedom of movement by force or show of authority
Test: can a reasonable person disregard the officer |
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Term
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Definition
-Stop and Frisk (Terry)
-Arrest
-Traffic Stops |
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Term
| Requirement for stop and frisk |
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Definition
-reasonable suspicion
-based on articulable facts |
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Term
| Stop and Frisk - scope and duration |
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Definition
limited in duration, pat down for weapons
-cannot initiate search for evidence |
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Term
| When can stop and frisk become arrest |
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Definition
if probable cause develops during frisk
-if encountered objects with obvious shape, can seize object |
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Term
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Definition
-Reasonable Suspicion OR
-if they pull over everyone |
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Term
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Definition
-Probable Cause (with or without warrant)
-Pre-text arrest okay |
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Term
| Arrest Warrant requirement |
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Definition
-Neutral, detached magistrate
-based on finding of probable cause
-Name offense and identiy |
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Term
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Definition
-with warrant
-exigent circumstances
-consent |
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Term
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Definition
-hot pursuit
-danger to others |
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Term
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Definition
-crime committed in presense of officer
-or probable cause that felony committed |
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Term
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Definition
| whether arrest was legal or not; no bearing on prosecution |
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Term
| Searches incident to arrest |
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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) |
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Term
| Arrest of drivers and passengers |
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Definition
| Can search passenger area of the vehicle, only if arrestee might access area or believes contains evidence |
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Term
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Definition
| can be searched for inventorying |
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Term
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Definition
| evidence gets excluded from prosecution |
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Term
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Definition
| government conduct violating reasonable expectation of privacy |
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Term
| What ares do not have reasonable expectation of privacy |
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Definition
-garbage
-open fields
-public streets |
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Term
| Search Warrant Requirement |
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Definition
-Detached neutral magistrate
-Probable cause to believe items sought: fruit, instrumentality, or evidence of crime
-describe property and place with particularity |
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Term
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Definition
-need warrant to wiretap
-specific in identifying conversations
-time period when warrant will end |
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Term
| Exceptions to warrant requirement (for search) |
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Definition
ESCAPES
-Exigent Circumstances
-Search Incident to Arrest
-Consent
-Automobile
-Plain view
-Evid. from Administrative searches
-Stop and Frisk |
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Term
| Is warrant necessary for evidnece obtained in lawful arrest? |
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Definition
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Term
| if probable cause, searching automobile: |
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Definition
| can search in vehicle and containers inside that can contain contraband |
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Term
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Definition
| no PC required (health, fire, etc) |
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Term
| Warrantless admin search examples |
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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 |
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Term
| Exception to 5th amendment privilege against self incrimination |
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Definition
If immunity has been given
physical evidence (only testimonial evidence covered)
Routine booking statements |
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Term
5th amendment: Miranda rights
what is required to invoke miranda? |
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Definition
Custodial - arrested or otherwise not free to leave
Interrogation - Words or conduct that would invoke response
Routine booking statements excluded |
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Term
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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 |
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Term
| When must police cease asking |
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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?) |
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Term
| Exception to miranda warning |
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Definition
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Term
| What interrogation tactics are allowed? |
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Definition
must be voluntary
No threats
Deceit okay |
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Term
| 5th amendment violation consequences: involuntarily obtained evidence |
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Definition
can never be used in court
fruit of poisonous tree applies |
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Term
| 5th amendment violation consequences: Mere miranda violations |
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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 |
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Term
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Definition
| right to the assistance of counsel for his defense |
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Term
| 5th/6th amendment differences |
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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 |
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Term
| What does 6th amendment attach to |
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Definition
Felonly charges
misdemeanor offenses with jail time
at all critical stages of proceedings |
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Term
| examples of critical stages for purposes of 6th amendment |
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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 |
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Term
| non critical stages of proceedings for purposes of 6th amendment |
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Definition
„h Investigative lineups
„h Witnesses looking at photo arrays
„h Discretionary appeals and post-conviction (habeas) proceedings |
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Term
| types of identification procedures |
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Definition
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Term
| rights of D for photo array |
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Definition
no right to be present
no right for lawyer to be present
must be notified |
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Term
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Definition
pre-indictment lineups: no right to counsel
Post-indictment lineups: right to counsel present |
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Term
| Excluding lineup evidence |
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Definition
must be impermissibly suggestive
-if so, in-court ID admissible only by clear and convincing evidence |
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Term
| Grand jury proceedings and exclusionary rule |
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Definition
| excludes eveidnece only at trial, not grand jury. |
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Term
| Exceptions to exclusionary rule |
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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 |
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Term
| What kind of warrant may officers not rely on for good faith exception? |
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Definition
-obtained by fraud
-defective on its face (barebones)
-magistrate abandoned judicial role |
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Term
| How to analyse fact patter |
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Definition
-has there been violation?
-if so, does exclusionary rule apply?
-if so, what are exceptions?
-should it be overturned? apply harmless error rule |
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Term
| Test for competence to stand trial and plead guilty |
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Definition
comprehends nature of proceedings and able to assist his counsel in defense
For pleading; knowingly and intelligently waived rights to trial |
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Term
| 8th amendment protection for bail |
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Definition
| prohibits setting excessive bail, but bail not required universally |
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Term
| When is bail unavailable? |
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Definition
generally, available unless poses danger to community or a flight risk
Presumption in favor of release before trial, and opposite after conviction |
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Term
| Requirements for pleading guilty |
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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 |
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Term
| What sorts of cases have a right to jury trial |
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Definition
| offenses which may give you 6 months + jail time (all serious offenses) |
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Term
| How much jury and what kind of verdict required |
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Definition
In Fed, 12, unanimous
State: 6 or more. unanimous if 6, maj if more than 6 |
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Term
| Venier/Jury Pool requirement |
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Definition
| must represent fair cross section of community where jury is selected |
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Term
| Requirement of petit jury |
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Definition
| Needs to be impartial. Does not have to reflect cross section |
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Term
| Types of challenges to jury selection and how many can be used |
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Definition
| For cause - unlimited. Preemptry: 3 for fed, 6 for CA |
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Term
| Limitations on preempt challenges |
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Definition
| Can't discriminate on race or gender |
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Term
| What happens if prosecutor is shown to have used challenges discriminately |
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Definition
| conviction overturned regardless of prejudice |
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Term
| How to calculate time for speedy trial |
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Definition
| Time b/w alleged trial and crime; completion of crime. For conspiracy, etc. objective of crime must be completed or abandoned |
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Term
| Right to speedy Trial - which part of constitution? |
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Definition
Due Process - pre-accusation delay
Speedy Trial Clause (6th amend) - after arrest/indictment (w/e comes first) |
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Term
| Factors for speedy trial right |
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Definition
Length of delay
Reason for delay
prejudice to defendant
did defendant assert his rights |
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Term
| when can courts close trial to public? |
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Definition
| substantial likelihood of prejudice |
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Term
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Definition
| If statement is testimonial, then cannot admit if: dec. unavailable + no opportunity to cross examine |
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Term
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Definition
| made under circumstances where objective witness reasonably to believe that the statement would be available for use at a later trial |
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Term
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Definition
D's testimony can always be used against himself
Co-D's testimony can't be used if co-D refuses to testify |
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Term
| Two types of Bias judges might have |
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Definition
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Term
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Definition
| Interests that would impair judge's impartiality |
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Term
| Prosecutor duties in trial |
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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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