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Criminal Procedure - MBE (FINAL)


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Exclusionary Rule
A remedy - the victim of an illegal search or coerced confession can have that evidence excluded from prosecution.
LIMITATIONS on the Exclusionary Rule
1. Doesn’t apply to grand juries

2. Not available in civil proceedings

3. To qualify for exclusion, search in Q must violate fed Const or fed statute

4. Not available in parole revocation proceedings

5. Use of excluded evidence for impeachment purposes (confession obtained in violation of Miranda CAN be used to impeach def’s trial testimony; ALL ILLEGALLY SEIZED EVIDENCE may be used to impeach def’s trial testimony (not other defense witness testimony))

6. Good faith defense to exclusion – 3 options:
(a) Good faith reliance on statute or ordinance later declared unconst.
(b) Good faith reliance on judicial opinion later changed by a later opinion
(c) Good faith reliance on a defective search warrant
EXCEPTIONS to the Good Faith Defense to the Exclusionary Rule -- when the GF Defense does NOT apply
1. if the affidavit underlying the warrant is so lacking in PC that no reasonable police officer would have relied on it.
2. warrant is invalid on its face (eg, failure of warrant to state with particularity the place to be searched and the things to be seized)
3. cop lied to or misled the magistrate
4. magistrate has wholly abandoned her judicial role
Fruit of the Poisonous Tree Doctrine
Not only must evidence illegally seized be excluded, but all evidence obtained or derived from exploitation of that original police illegally is also excluded.

EXAM TIP: FOPT does NOT apply when the original police illegal action was a Miranda violation
How the FOPT chain can be broken:
1. Show they had an INDEPENDENT SOURCE
3. Intervening acts of FREE WILL on part of def (often tested⬦)
Is a warrant required to arrest someone in a public place? In their own home?
Arrest warrants are generally NOT required prior to arresting s/o in a public place.

BUT non-emergency arrest of indiv in own home requires arrest warrant.
When can station house detention occur?
Police need PC to arrest you in order to compel you to come to the police station for either fingerprinting OR interrogation
Basic model for answering search and seizure questions:
First look for whether the person in Q has a 4th amendment right.

Next: See whether the police had a search warrant, and if it’s valid. (If they have a warrant, test validity of the warrant; If it’s good, you have a VALID search. If no warrant, see if you can save evidence anyway using good faith defense for reliance on a defective warrant.

Third, if the police had no warrant, or it was invalid, see if the search falls under one of the 6 exceptions to the warrant requirement
Wiretapping and Eavesdropping - is a warrant required?
ALL of it requires a warrant.

Big exception: unreliable ear
Unreliable ear exception to wiretapping/eavesdropping warrant rule
You take the risk that person you talk to will consent to government monitoring convo or will be wired themselves
Test for whether someone has a fourth amendment right in a given situation:
1. Was the search GOVERNMENT CONDUCT? (Private action does not implicate the 4th Amendment.)

2. Did the person have an REOP? (Did they have standing to object to the S/S?)
What constitutes government conduct for purposes of a search/seizure?
1. Publicly paid police – on or off duty

2. Any private indiv acting at the direction of the public police

3. privately paid police are NOT government conduct UNLESS they are deputized with the power to arrest you
3 automatic categories of standing for 4th amemdment purposes
1. You OWN the premises searched

2. You LIVE on the premises searched, regardless of your ownership interest

3. You are an OVERNIGHT GUEST on the premises
When someone MIGHT have standing for 4th amendment purposes (not automatic in all situations):
1. You’re legitimately present when search takes place

2. You own the property seized

Car passengers who don’t claim they own car/property taken out of car do NOT have standing just b/c they were present when search occurred

An indiv (drug dealer) briefly on premises of s/o else solely for biz purpose of cutting up drugs for sale, does NOT have standing to object to search of those premises.
General rule for when you do NOT have an REOP.
You have no REOP when the government seizes something that is held out to the public.
List of things in which you do NOT have an REOP:
- Sound of your voice
- Style of your handwriting
- Paint on the outside of your car
- Account records held by a bank
- Monitoring location of your car on public street or in your driveway
- Anything that can be seen across the open fields
- Anything that can be seen from flying over it in public airspace
- Odors emanating from luggage
- Garbage set out on curb for collection
Requirements for a valid search warrant.
1. Warrant should issue on a showing of PROBABLE CAUSE

2. Warrant must be PRECISE ON ITS FACE. Must state w/ particularity the place to be searched and the things to be seized.

3. Warrant must have been issued by a neutral and detached judicial officer (magistrate) - neutral and detached from law enforcement. (Attorneys general are not neutral and detached.)

Exam Tip: If warrant fails under the neutral magistrate rule, it CANNOT be saved by the good faith defense!
Use of informers/informants -- ok or not for warrant purposes? Rule?
Police don’t have to rely on own observations to get warrants; USE OF INFORMERS IS OK.

Rule: You can have a valid warrant based in part on an informer’s tip, even though the informer is anonymous.
6 exceptions to the warrant requirement
1. SIA
2. Automobile exception
3. Consent
4. Plain view
5. Stop & frisk
6. Hot pursuit and evanescent evidence
Requirements for a valid search incident to arrest (SIA):
1. The arrest MUST BE LAWFUL.
2. The search must be CONTEMPORANEOUS in time and place with the arrest
3. GEOGRAPHIC SCOPE limitation on what can be searched - PERSON and the areas they can reach to procure weapon/destroy evidence (“wing span”)
Requirements for a valid warrantless search under the Automobile Exception:
Normally, when a person is validly arrested in car, the person’s wingspan is the entire interior of the car, but not the trunk.

BUT the whole car can be searched in some cases: The police NEED PROBABLE CAUSE to fall under this exception. If have PC, can search the ENTIRE car, including package, luggage, other container that could reasonably contain item for which have PC to look – whether items belong to passenger or driver.

Exam Tip: aask whether magistrate would have issued warrant under the circs.
c. The PC can arise AFTER the car is stopped; but it has to arise BEFORE anything or anyone is searched.
Requirements for a valid plain view warrantless search:
The police may make a warrantless search if they:

1. are legitimately on the premises
2. Discover evidence, fruits, or instrumentalities of crimw or contraband
3. see such evidence in plain view, and
4. have PC to believe that the item is evidence, contraband, or a fruit/ instrumentality of crime.

EXAM TIP: be sure that the police officer is legitimately present where s/he does the viewing!
Search incident to incarceration
Inventory search at station doesn't require a warrant. Ditto for an impounded vehicle.
Searches of persons found on searched premises
Warrant founded on PC to search for contraband authorizes police to DETAIN occupants of the premises during a proper search, but NOT to SEARCH person found on the premises who were not named in the warrant.
Requirements for a valid, warrantless consent search:
A warrantless search is valid if the police have VOLUNTARY and INTELLIGENT consent.

Knowledge of the right not to consent is not a prerequisite.
Who has authority to consent to a search of a home?
Any person with apparant equal right to use or occupy the property.

Where 2 or more people have equal right to use a piece of property, any ONE of them can consent to its warrantless search.
Standard for a proper stop and frisk:
Standard for stopping: reasonable suspicion (less than PC). If there is RS, police can stop the person,

If there’s RS of a weapon, they can pat them down (frisk).

If a pat down and they feel something, and pull out a weapon, the weapon is admissible.

If on the pat down they feel something, and pull out evidence of crime but NOT a weapon, ask how much LIKE a weapon or contraband could it have seemed from the outside?
Standard for hot pursuit and evanescent evidence warrantless search/seizure:
Evanescent evidence = evidence that might go away if you took the time to get a warrant

Hot pursuit – of a fleeing felon. Has to be “real hot”
- No contemporaneousness requirement!
- No geog scope limitation!
- If police are truly in hot pursuit, they can enter ANYONE’S home in that pursuit
- Motor vehicle
- Shoplifting
- Warrant on file
- Public drunkenness
- A&B against a family or household member
When is a Miranda warning required?
When someone is
(1) in CUSTODY and
(2) there is INTERROGATION

EXAM TIP: VIRGINIA uses an objective test to define custody!
Define Custody
A person is in custody if, at the time of interrog., they are not free to leave. (Location doesn’t matter.)

EXAM TIPS: probation interviews & routine traffic stops are NOT CUSTODIAL. Police can ask you questions and use those answers with no Miranda reqiurement.
Define Interrogation
Any conduct where police officers know or should have known they might get a damaging statement from the person in custody.

This is not just ANY questioning.
Spontaneous statements and Miranda warnings
Miranda warnings aren’t needed before a spontaneous statement (EXAM TIP: “blurted”)
How can a suspect waive Miranda rights?
Any waiver must be KNOWING, VOLUNTARY, & INTELLIGENT (Exam Tip: shoulder shrug doesn’t count as knowing/intelligent.)
When does the 5th Amendment right to counsel attach? What does it cover?
Once def. asserts right to terminate interrogation and requests attorney, re-initiation of interrogation by police w/o attorney present violates 5th Amendment right to counsel (technically, the failure to give a Miranda warning vioaltes the 5th amendment right to be free from self-compelled self-incrimination.)

This right arises ONLY when somebody, upon hearing the Miranda warning, says “I want a lawyer”

Cops can’t ask about ANYTHING after this request w/o lawyer present - it is NOT OFFENSE SPECIFIC
When does the 6th Amendment Right to Counsel attach? What does it cover?
At all other times when a person asks for a lawyer other than after a Miranda warning, it’s under the 6th amendment right to counsel.

There can be no 6th Amendment violation before formal proceedings have begun!

This is offense specific! The attnry only has to be present if def will be asked Qs about the specific case for which s/he is in custody.
Substantive ways to attack a pre-trial identificatoin:
1. Denial of right to counsel

2. Denial of due process
When does a pre-trial ID technique raise the right to counsel?
Post-charge line-ups & show-ups give rise to right to counsel

There is NO right to counsel when victims/witnesses are shown photographs!
When does a pre-trial ID technique violate due process?
When a lineup is:
1. unnecessarily suggestive, &
2. substantially likely to produce a misidentification
What is the remedy for a pre-trial ID technique that is found to have vioated DP or right to counsel? Can the state defeat this remedy?
Exclusion of the in-court identification.

The state can defeat the claim for a remedy by showing an *independent source for the in-court ID.* (Independent of the lineup – eg, ample oppty to look at person at the time of the crime.)
Is preventative detention Constitutional?
Are bail issues appealable? When?
Yes, immediately.
What states use Grand Juries?
Primarily those East of the Mississippi. West, most states use an Information instead.
What rights does the defendant have in grand jury proceedings?
Not many.

Proceedings are secret.

Def has no right to appear, no right to send witnesses, and no right to counsel present. The defendant must appear if called, but CAN refuse to answer specific questions on the grounds of self-incrimination.
What kind of defect is always sufficient to quash a grand jury indictment?
Exclusion of members of a minority group
Standard for the right to a "speedy trial"
TOTC test.

Factors include:
- length of delay
- reason for delay
- whether D aserted the right
- prejudice to the D
When does the right to a speedy trial attach?
When the Defendant has been ARRESTED or CHARGED. If neither of these has happened, then the right does NOT attach.
What does the Def have to show to prove a violation of DP based on the prosecutor's duty to disclose exculpatory information?
1. That the evidence is favorable to him b/c it impeaches or is exculpatory

2. prejudice has resulted (eg, the outcome of the case would likely have been different had the evidence been presented)
When is the right to an unbiased judge violated?
When the judge has either
(1) a financial interest in outcome of case OR
(2) actual malice against def.

Exam Tip: It is NOT when a judge warns a def that if show up in court again, they'll get the max
When does the right to a jury trial attach?
Whenever D is tried for an offense for which the maximum authorized sentence EXCEEDS 6 months.

EXAM TIP: “up to” or “including” 6 months creates NO Constitutional right to a jury trial.
When does the right to a jury trial attach for criminal contempt proceedings?
If the SUM of the sentences for criminal contempt exceeds six months, the alleged contemptor has the right to a jury trial.

(There is no right to jury trial for civil contempt proceedings)
What are the Constitutional requirements for number and unanimity of jurors?
Minimum # of jurors = 6. If use 6, they have to be unanimous.

No federally-protected right to a unanimous verdict of 12-person jury. Votes of 10-2 and 9-3 have been upheld by SC.

Virginia requires a unanimous jury.
Cross-Sectional Requirement for Juries:
Ds have a right to have the county jury POOL reflect a fair cross section of the community in that county.

But NO right to have your OWN JURY reflect a cross section of the county population.
Use of Peremptory Challenges for Racial and Gender Based Discrimination
Rule: It is unconstitutional for prosecutor/defense to exercise peremptory challenges to exclude prospective jurors on account of race or gender.
Standard for ineffective assistance of counsel:
1. Deficient performance by counsel; and
2. BUT FOR that deficiency, the result of proceeding would have been different.

Commonly raised claim, but rarely accepted

For essay: set out standard. Then, unless there’s a good argument that the person is not guilty, deny relief.
2 trends in Supreme Court since 1970 re: guilty pleas and plea bargaining:
1. Courts won’t disturb guilty pleas after sentencing

2. Adoption of contract theory of plea bargaining: terms of plea bargain should be revealed in record at plea taking; both sides are held to that deal.
What a judge has to tell the defendant ON THE RECORD if the defendant pleads guilty:
1. The nature of the charge

2. The max authorized sentence and any mandatory minimum sentence

3. Tell the def that they have a right to plead not guilty and demand a trial

4. Tell def that by pleading guilty, they are waiving the right to trial
Exceptions to the general rule that courts will not disturb guilty pleas after sentencing:
There are 4 good bases for withdrawing guilty pleas after sentencing:

1. the plea was involuntary (a mistake in the plea taking process)
2. lack of jurisdiction – court that took the plea didn’t have the jurisdiction to take it
3. ineffective assistance of counsel
4.** failure of prosecutor to keep an agreed-upon plea bargain.
When a defendant will NOT be allowed to withdraw a guilty pleas:
1. it was an “intelligent choice”
2. it was a choice made from among alternatives
3. it was on advice of a competent attorney
What kind of sentence can be given a defendant at a retrial that occurs after a successful appeal?
Rule: def may not be given a harsher sentence on retrial after a successful appeal

(Why: Avoid chilling the exercise of the right to appeal.)
4 sentences to regurgitate if the death penalty comes up:
a. Any death penalty statute that does not give the defendant a chance to present mitigating facts and circs is unconstitutional.

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

c. The state may not by statute limit the mitigating factors; all relevant mitigating evidence must be admissible or the statute is unconstitutional

d. Only a jury – and not a judge – may determine the aggravating factors justifying imposition of the death penalty.
When does double jeopardy attach at a jury trial? at a bench trial?
Attaches at a jury trial when the jury is sworn

Attaches at a judge trial when the first witness is sworn
Does jeopardy attach in civil trials? criminal? Both?

Jeopardy generally doesn’t attach when the proceedings are CIVIL
Four exceptions to double jeopardy rule (when retrial can occur):
a. Jury unable to agree to agree on a verdict

b. Mistrials for manifest necessity

c. Retrial after successful appeal

d.** Breach of an agreed upon plea bargain by the defendant
What happens if a defendant breaches a plea bargain agreement?
Rule: When a def. breaches a plea bargain agreement, the plea and sentence are vacated, and original charges can be reinstated.
What constitutes the "same offense" for Double Jeopardy purposes?
RULE: 2 crimes do not constitute the same offense when each crime requires proof of an additional element that the other does not.

Secondary Rule: Lesser included offenses are barred under double jeopardy

(Robbery = larceny + assault. If in jeopardy for robbery, can’t later try you for lesser offense of larceny. If tried for larceny, this bars retrial for greater offense of robbery.)
Exception to the no retrial for the "same offense" double jeopardy rule:
If D is in jeopardy for battery, and the victim then dies ⬦ they CAN then try the Def for murder.
Same sovereign rule re: double jeopardy:
Rule: The same sovereign can’t try you twice for the same offense

- The state and federal government are not the same sovereign
- Two different states can try you for the same offense
- You can’t be separately violated for violation of state law and a county ordinance.
Who can invoke the Fifth Amendment Privilege against Compelled Testimony?
Anybody under oath, in any kind of case – civil, administrative hearing, congressional hearing, etc.

If the answer might incriminate them, then can invoke it

EXAM TIP: if you don’t assert it the first time you’re asked the question, you waive the privilege for all subsequent criminal prosecutions.
Scope of the 5th amendment Privilege against Compelled Testimony?
5th amendment DOES NOT protect D from having the state use her body to incriminate her. (they can make D give hair, urine, blood samples, etc)

5th amendment DOES protect D from compelled TESTIMONY. the state can’t make us take a lie detector test, or undergo custodial police interrogation.
Can a prosecutor make a negative comment on the defendant’s failure to testify, or on his/her remaining silent upon hearing the Miranda warning?
No -- it is unconstitutional
3 ways that the 5th amendment privilege against self-incrimination can be eliminated:
1. Grant of immunity– state won’t use immunized testimony or anything derived from it to convict you (but it can prosecute you based on evidence prosecution had before the immunity grant)

2. No possibility of prosecution – eg, S of L has run on underlying crime

3. Waiver – criminal def, by taking witness stand, waives 5th Amendment privilege as to all legitimate subjects of cross examination.
Can a defendant be made to use counsel to represent her?
NO. A defendant has an absolute right to waive counsel and represent himself. The waiver must be knowing and intelligent, and the defendant need not be found capable of representing himself. Denial of this right constitutes reversible error. You cannot recover costs if an attorney is appointed for someone against their will.

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