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New York Bar Exam - Criminal Procedure


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What is the exclusionary rule?
Doctrine that prohibits introduction of evidence obtained in violation of a defendant’s 4th, 5th, and 6th Amendment rights.
What is the scope of the exclusionary rule?
Illegally obtained evidence is inadmissible at trial, and all “fruit of the poisonous tree” must also be excluded.
What are the exceptions to the fruit of the poisonous tree doctrine?
1) Evidence obtained from a source independent of the original illegality;
2) An intervening act offree will by the defendant; and
3) inevitable discovery;
When does the exclusionary rule not apply?
Inapplicable to:
1) Grand Juries,
2) Civil Proceedings,
3) Internal Agency Rules, and 4) Parole Revocation Proceedings
What is the good faith law exception to the exclusionary rule?
Does nat apply when the police acted in good faith based on
1) Case law,
2) a facially valid statute or ordinance, or
3) a computer report containing clerical errors not made by the police.
What is the good faith warrant exception to the exclusionary rule?
Rule doesn't apply when the police act in good faith reliance on a defective search warrant unless:
1) the underlying affidavit was so lacking in probable cause that it could not reasonably be relied on,
2) the warrant was defective on its face,
3) the affiant lied to or misled the magistrate, or
4) the magistrate has “wholly abandoned his judicial role.”
May evidence obtained in volation of the exclusionary rule be used to impeach D?
What is the harmless error test?
If illegal evidence is admitted, a conviction should be overturned unless the gov't can show beyond reasonable doubt that the error was harmless.
Who bears the burden on admissibility of evidence?
The prosecution must establish admissibility by the proponderace.
What is the 4th amd right?
People should be free from unreasonable searches and seizures.
Do arrests and other detention fall under the 4th amendment?
Yes, seizures of persons are protected under the 4th amd and must be reasonable.
What constitues a seizure?
A seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government.
What constitutes an arrest?
The police take a person into custody against his will for purposes of criminal prosecution or interrogation.
What must an arrest be based on?
Probable cause
When is an arrest warrant needed?
Police generally only need have a warrant to effect a nonemergency arrest of a person in his home.
What other types of seizures are there besides arrest?
1) Investigatory stops
2) Automobile stops
3) Detention to obtain warrant
4) Station house detentions
When may police effect an investigatory detention?
If police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (i.e., not merely a hunch).
When may police frisk someone in conjunction with an investigatory stop?
If the police also have reasonable suspicion that the detainee is armed and dangerous.
How long may an investigatory stop last?
The detention must be no longer than necessary to conduct a limited investigation to verify the suspicion.
When may police effect an automobile stop?
Generally police may not stop a car unless they have at least reasonable suspicion to believe that a law has been violated.
What is the exception for automobile stops?
If special law enforcement needs are involved, police may set up roadblocks to stop cars without individualized suspicion that the driver violated some law.
What is necessary for a valid road block?
1) stop cars on the basis of some neutral, articulable standard (e.g., every car); and
2) be designed to serve purposes closely related to a particular problem related to automobiles and their mobility.
May police order occupants out of the vehicle in an automobile stop?
Yes, in the interest officer saftey he
1) may order them out of the vehicle;
2) frisk them if he believes them to be armed; and
3) search weapons in the passanger compartment.
May the police make pretextual auto stops?
Yes, if they reasonably believe the driver violated a traffic law they may stop him even if the real motive is to investigate some other violation.
May police bring suspects to the police station w/o grounds for an arrest?
No, they must have full probable cause.
Is grand jury appearance protected by the 4th amd?
Are evidentiary searches and seizures protecte by the 4th amd?
Yes, must be reasonable to be valid under the 4th Amd, but here reasonableness requires a warrant except in six circumstances.
Does the 4th amd protect against searches by private persons?
No, only gov't agents or police.
When does a person have standing for a 4th amendment right respecting the place searched or item seized?
1) He owned or had a right to possession of the place searched;
2) The place searched was in fact his home whether or not he owned or had a right to possession of it; or
3) He was an overnight guest of the owner of the place searched.
Does a person have a reasonable expectation of privacy in objects held out to the public?
No, unless police use a sense enhancing technology not in general public to obtain info from inside a suspect's home.
What showing must be made to obtain a search warrant?
Probable cause to believe that seizable evidence will be found on the person or premises to be searched.
How is a search warrant obtained?
Officers must submit to magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions.
What is the totality of the circumstances test?
An affidavit based on an informants tip must be sufficent under the totality of the circumstances.

** an affidavit may be sufficient even though the credibility and reliability of the infomer or the basis for his knowledge are not established.
Must an informers identity be revealed?
Not usually.
When willl a search warrant based on affidavit be invalid?
If D establishes:
1) A false statement was included in the affidavit
2) The false statement was intentionally or recklessly included; and
3) The false statement was material to the finding of probable cause.

** this test is very restrictive.
What happens to evidence obtained in reasonable reliance on a facially valid warrant?
The evidence may be used by prosecution, even if it ultimately turns out that the evidence was not supported by probable cause.
How precise must a warrant be?
Must describe with reasonable precision the place to be searched and items to be seized.

**If it does not, the warrant is unconstitutional, even if the underlying affidavit gives such detail.
Are searches of a nonsupect's premises permissible?
Yes, as long as there is probable cause to believe that evidence will be found there.
How must warrant be excuted?
Only the police (and not private citizens) may execute a warrant, and it must be executed without unreasonable delay.
Must police announce themselves befor executing a search warranty?
Police must knock, announce their purpose, and wait a reasonable time for admittance.

**unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation.
What may police seize when executing a search warrant?
Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
What persons may be searched when found on the premise where a warrant is being executed?
Only persons named in the warrant.
When may persons be detained during the search of premises?
When the warrant is founded on probable cause to search for contraband.
What are the 6 exceptions to the warrant requirement?
1) Search incident to lawful arrest.
2) Automobile exception
3) Plain view
4) Consent
5) Stop and frisk
6) Hot pursuit or other emergency.
What is the scope of the search incident to lawful arrest exception?
The police may search the person and areas into which he might reach to obtain weapons or destroy evidence, as well as a sweep of the area if they believe accomplices are present.

**Must be contemporaneous in time and place w/ arrest.
What also falls under search incident to lawful arrest?
1) At the station police may make an inventory search of the arrestee's belongings
2) The police may make an inventory search of an impounded vehicle
What is the automobile exception to warrant?
Police may search the whole vehicle and containers therein, if they have probable cause to believe it contains fruits, instruments, or evidence of a crime.

**they can only search a container that could reasonably contain the item which they have PC to search for
What is the time frame for the automobile to be searched?
If warrantless search is valid, the police may tow the vehicle to the station and search it later.
Can passenger's belongings be searched w/in the auto exception?
What is the plain view exception?
Police may make a warrantless search when they:
1) Are legitimately on the premises;
2) Discover evidence, fruits or instrumentalities of crime, or contraband;
3) See such evidence in plain view; and
4) Have probable cause to believe (i.e., it must be immediately apparent) that the
item is evidence, contraband, or a fruit or instrumentality of crime.
What is the consent exception?
A warrantless search is valid if the police have a voluntary and intelligent consent.
Is knowledge of the right to withhold consent is a prerequisite to establishing a voluntary and intelligent consent?
What is the scope of a consented search?
Consentor may limit scope, but generally extends to all areas to which a reasonable person under the circumstance would believe it extends.
Who has authority to consent?
Any person with an apparent equal right to use or occupy the property may consent, and any evidence found may be used against other owners/occupants
What is the scope of the stop and frisk exception to search warrants?
1) Generally limited to a patdown of outer clothing, unless the officer has specific info that a weapon is hidden in a particular area.
2) An officer may also order occupants out of a stopped vehicle and frisk them and search the passenger compartment of the vehicle if the officer has a reasonable belief that the occupant is dangerous.
What are the emergency exceptions to search warrants?
1) police in hot pursuit of a fleeing felon may search and seizure and may even pursue the suspect into a private dwelling;
2) police may seize evidence likely to disappear before a warrant can be obtained; and
3) contaminated food or drugs, children in trouble, and burning fires may justify warrantless searches/seiz.
Do 4th amendment searches apply to the border or its equivalent?
No, a warrant is not necessary for boarder searches.

**This includes the right to open international mail suspected of containing contraband.
Does wiretapping or eavesdropping constitute a search under the 4th amd?
What is necessary for a wiretap warrant?
may be issued if
i) there is showing of probable cause,
ii) the suspected persons involved in the conversations to be overheard are named,
iii) the warrant describes with particularity the conversations that can be overheard,
iv) the wiretap is limited to a short period of time,
v) the wiretap is terminated when the desired information has been obtained, and
vi) return is made to the court, showing what conversations have been intercepted.
What rights are involved with confessions?
4th, 5th, 6th, and 14th amds.
What does the 14th amd require regarding confessions?
Voluntariness, as determiend by the totality of the circumstances.
What does the 6th amendment require with regards to confessions?
Right to counsel in all critical stages after judicial proceedings have begun.
What is the effect of the 6th amd right to counsel?
It prohibits the police from deliberately eliciting an incriminating statement from a D outside the presence of counsel after D has been charged unless he has waived his right to counsel.
Can there be a 6th amend violation prior to formal proceedings?
No. But there is a still a 5th amd right.
Is the 6th amd right "offense specific"?
Yes. he may be questioned regarding unrelated, uncharged offenses without violating the 6th Amd right to counsel.
How does the 5th amendment right generally protect suspects from self-incrimination?
Through miranda warnings and right to silence/counsel.
When are Miranda warnings required?
Anyone in the custody of the gov't and accused of a crime must be given Miranda warnings prior to interrogation.
When is a person in custody?
Depends on whether the person’s freedom of action is denied in a significant way based on the objective circumstances.
What constitutes an interrogation?
Any words or conduct by the police that they should know would likely elicit a response from the defendant.

**Miranda warnings are not required before spontaneous statements are made by a defendant.
Can a suspect waive his miranda rights?
Yes, but the prosecution must prove that the waiver was knowing, voluntary, and intelligent.
What if a suspect is interrogated by an undercover officer?
Generally, Miranda warnings are necessary only if the D knows that he is being interrogated by a government agent.
Does Miranda apply to exculpatory statements?
Are Miranda requirements applicable to a witness tesitifying before a grand jury?
No, even if compelled by subpeona.
How can a defendant invoke his 5th amendment right and end an interrogation?
By either requesting to remain silent or requesting a lawyer.
What is the effect of requesting to remain silent?
The police must honor this request but may resume questioning at a later time on an unrelated crime.
What in the effect of unambiguously requesting right to counsel?
all questioning must cease until counsel has been provided, unless the accused then waives his right to counsel. Counsel must be present for all questioning there after.
What is the effect of a Miranda violation?
Generally evidence obtained in violation of the Miranda is inadmissible under the exclusionary rule.
What if D confesses before and after the Miranda warnings?
Will be inadmissible if the "question first, warn later" nature of the questioning was intentional.
What is the public safety exception to miranda?
Interrogation without Miranda warnings are allowed where the interrogation is prompted by concern for public safety.
What are the substantive bases to attack a pretrial identification?
1) 6th amd right to counsel - A suspect has a right to have an atty present at any post charge lineup.
2) Due process - that the identification was unnecessarily suggestive and there is a substantial likelihood of misid.
What is the remedy for pretrial identification errors?
The remedy is exclusion of the in-court indentification but that is rarely granted.
What is the idependent source exception for improper pretrial identification?
A witness may make an in-court identification of D despite an unconstitutional pretrial identification if the in-court identification has an ind source (eg, observed the crime).
What is the pretrial probable cause hearing?
If probable cause has not already been determined and there are significant contraints on the arrestee's liberty, there must be a preliminary hearing within 48hrs.
What is the general rule on bail?
1) Ussually granted except in capital cases
2) Can be set no higher than is necessary to assure the D's appearance at trial.
Has the 5th amd right to a grand jury been held applicable against the states via the 14th amendment?
No, but many states east of the Mississippi use a grand jury in some form.
Why are grand jury proceeding so sketchy?
1) They are conducted in secert and D has no access;
2) Witnesses subpoenaed have no right to counsel or miranda warnings;
3) Evidence that would be inadmissible at trial may be used;
4) No right to challenge a subpoena.
For purposes of the MBE what is really the only defect sufficent to quash a grand jury indictment?
Exclusion of a minority group from the grand jury, regardless of its harmlessness.
What is the standard to determine whether the 6th amd right to a speedy trial has been violated?
Totality of the circumstances
1) Length of the delay
2) Reason for the delay
3) Whether D asserted his rights
4) Prejudice to the defendant.
When does the right to speedy trial does attach?
Does not attach until D has been arrested or charged.
What is the prosecutors duty to disclose exculpatory evidence?
The gov't has a duty to disclose material, exculpatory evidence to D.

**Failure to do so violates due process.
What must D show to overturn a conviction based on failure to disclose exculpatory evidence?
1) The evidence is farvorable bc it either impeaches or is exculpatory, and
2) Prejudice has resulted (eg, there's a reasonable chance of no conviction)
What is the difference between competency and insanity?
1) Insanity is a defense to crimes based on mental condition that existed at the time the crime was committed.
2) Incompetency to stand trial, is a bar to trail based on D's condition at the time of trial.
When is a D incompetent to stand trial?
If he either
1) lacks rational, as well as factual understanding of the charges and proceedings, or
2) lacks sufficient present ability to consult his lawyer w/ a reasnoable degree of understanding.
How is a D who has sucessfully asserted an insanity defense detained?
He may be confined to mental hospital for a term no longer than the maximum perod of incarceration for the offense.
What are D's basic trial rights?
1) Right to a fair and public trial
2) Right to trial by jury
3) Right to counsel
4) Right to confront witnesses
5) Right to sufficency of evidence.
When is due process violated for lack of right to a fair trial?
1) The judge has actual malice against D or financial interest;
2) Trial is conducted in a manner making it unlikely the jury gave evidence reasonable condsideration;
3) The state compels D to stand trial in prison garb; or
4) The jury exposed to influence favorable to the prosecution.
Must the judge be a lawyer?
Not for misdemanors. Upon conviction D has right to trial de novo before a court w/ a lawyer judge.
When does D have a right to trial by jury?
Only for serious offenses (more than 6 months jail is authorized).
What is a psuedo exception to the jury trial rule?
In civil contempt proceedings the judge may place a contemptor on probation for up to 5 years w/o right to jury.
How many people must be on a jury?
At least six.
Must a jury make a unanimous guilty finding?
The SC has upheld conviction less than unanimous, but 8-4 probably wouldn't fly.

**With only six jurors there must be unanimity
What are the rights for venire, peremptory challenges, and impartial juries?
See notes pg 22
Are inconsistent verdicts reviewable?
Who has the right to increase a sentance beyond the statutory maximum?
Only the jury upon hearing additional facts proved beyond a reasonable doubt.

**judge may make determitation within the the sentancing guidelines.
What is the defendant's right to counsel?
D his right to be represented by counsel at the following stages:
1) custodial police interrogation;
2) post-indictment interrogation whether or not custodial;
3) preliminary hearings to determine probable cause to prosecute;
4) arraignment;
5) post-charge lineups;
6) plea and sentencing;
7) felony trials;
8) misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed;
9) overnight recesses during trial; and
10) appeals as a matter of right.
What is the effect of a violation of the right to counsel?
1) Violation at trial requires reversal
2) Violation at nontrial level is evaluated under the harmless error test
When can one defend oneself?
When in the judgment of the judge, his waiver is knowing and itelligent.

**He need not be capable of representing himself effectively.
What is the rule for who can be provided counsel?
The state generally provides counsel in close cases of indigence, but may then seek reimbursement from those D who later become able to pay.
Does D have a right to effective counsel?
Yes at trial and on first appeal.

**effective counsel is generally presumed
What circumstance will constitute ineffective assitance?
1) Deficient performance by counsel; and
2) But for the deficiency, the result would have been different

** Must point out specific deficiencies and cannot base the claim on inexperience, lack of time to prepare, or complexity of defenses
Can co-defendants be represent by one attorney?
Joint representation is not invalid per se.

**if an atty advises the court of a conflict at or before trial, D is entitled to reversal if the court refused to appoint a new attorney.
What is D's right to confront witness?
Under the 6th amd, D has the right to confront adverse witness but the right is not absolute.
When may the right to confront a witness be restricted?
1) Face to face confrontation is not required when preventing such confrontation serves an important public purpose
2) Judge may remove a disruptive witness from the courtroom.
When can the confession of a co-defendant tried together with the other defendant be used at trial?
The right to confrontation prevents use of a confession that implicate D unless:
1) All portions referring to the other defendant can be eliminated;
2) The confessing defendant takes the stand and subjects himself to cross-examination with respect to truth of what the statement asserts; or
3) The confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that his confession was obtained coercively.
What is the burden of proof in a criminal case?
The DP clause requires that the state prove guilt beyond a reasonable doubt on every element of the crime, but the state may impose the burden of proof on D regarding affirmative defenses.
What is the effect of taking a guilty plea?
It is a waiver of the 6th amd right to a jury trial.
What must the judge advise before a guilty plea can be accepted?
1) Of the nature of the charge to which the plea is offered;
2) Of the max possible penalty and of any mandatory min (failure to explain a parole term is not fatal);
3) That D has a right not to plead guilty; and
4) That by pleading guilty D waives his right to a trial.
What is the remedy where the judge fail to properly advise P of a guilty plea?
The plea is withdrawn and a new plea is entered.
When may a plea be set aside after D is sentanced?
1) For involuntariness;
2) For lack of jurisdiction;
3) For ineffective assistance of counsel; or
4) Failure to keep the plea bargain.
Who is a plea bargain enforceable against?
P and D, but not against the judge who doesnt have to accept it.
Is plea involuntary where P threatens to charge D with a more serious crime if he does not plead guilty?
Does D have a right to counsel during sentancing?
In usual sentancing, what may the sentence be based on?
The sentance can be base on hearsay and uncross-examined reports (no right to confrontation).
What is D sentencing right where a magnified sentence is based on a statute that requries new findings of fact?
D has a right to confrontation and cross examination.
What special rights are granted for sentancing in a capital case?
D must have more opportunity for confrontation than in other sentance proceedings.
What is the maximum sentance that D can get after a successful appeal and reconviction?
If a greater punishment is imposed, the judge must set forth reasons for the harsher punishment.

**except where its a de nove trial or the jury gave the sentance.
What are D's substantive rights regarding punishment?
Under the 8th amd, no cruel and unusual punishment.
What is constitutes cruel and unusual punishment?
A penalty that is grossly disproportionate to the seriousness of the offense committed.
When can the death penalty be imposed?
Only under a statutory scheme that gives the judge or jury, full information concerning D and guidance in making the decision.
Can a death sentence be based in any part on prior convictions?
If the death sentence is partly based on D's prior conviction, it must be reversed.
What is D's right to appeal?
D has no federal constitutional right to appeal.
What is D's right to counsel on appeal?
If an avenue of post-conviction review is provided, indigents must be given counsel at state expense for a first appeal granted as a matter of right.
What is a habeas corpus proceeding?
After all avenues of appeal are gone, Petitioner may attempt to show unlawful detention in a habeas proceeding.
What is the burden of proof in a habeas proceeding?
D must show unlawful detention by the proponderance of the evidence.
When does double jeopardy attach (ie, that D can't be tried twice for the same offense)?
1) In a jury trial at the empaneling and swearing of the jury
2) In a bench trial when the 1st witess is sworn in.
Whate are the exceptions for double jeopardy?
1) Hung jury
2) Sucessful appeal that wasn't grounded on insufficient evidence
3) D breaches his plea bargin (charges may be reinstated)
When do 2 crimes equal the same offense?
2 crimes are the same offense unless each crime requires proof of an additional element that the other doesn't

**even thought some of he facts may be necessary to prove both crimes.
When are mulitiple punishments allowed even thought 2 crimes may constitute the same offense?
If there was a legislative intent to have the cumulative punishments.

**eg, D can be sentanced for both robbery and using a weapon during a crime if the statute so provides.
After one trial, can D be later tried for a lesser or greater offense?
Generally no. Exception is that D may be retried for murder if V dies after attachment of jeopardy for battery.
What is the new evidence exception to double jeopardy?
D may be retried for the same offense if unlawful conduct that is subsequently used to prove the greater offense:
1) Has not occured at the time of prosecution for the lesser offense, or
2) Has not been discovered dispite due diligence.
Does double jeopardy apply to civil proceedings brought by the state where the civil action arises from the same conduct that D was already tried for criminally?
Does double jeopardy apply to trial by separate soverigns?

**eg, 2 states okay, state and federal okay, state and municipality not okay.
How does collateral estoppel apply in criminal prosecutions?
D may not be tried or convicted of a crime if a prior prosecution by that sovereign resulted in a factual determination inconsistent with one required for conviction.
Who may assert the privilege against self incrimination?
Only a natural person and only to questions that will personally incriminate him.
When may the self incrimination privilege be asserted?
Whenever his response might furnish a link in the chain of evidence need to prosecute him.
If a person does not invoke his self incrimination right in civil trial, is that privilege deemed waived in a later criminal prosecution?
How may a person invoke his right against self incrimination?
1) In criminal trial, the D has the right not to take the stand.
2) Otherwise, the person must take the stand and invoke the privilege in response to specific questions.
What is the scope of the right against self incrimination?
1) Does not protect against real or physical evidence
2) Does not apply to subpoenas for production of incriminating documents.
3) Does not apply to officers seizing incriminating docs
To what extent may P comment on D's invokation of his right to silence or right against self incrimination?
Only in response to defense counsel's assertion that D was not allowed to explain his side of the story.

**Harmless error test applies to violations.
When may a person be force to testify in spite of his prilivege?
1) If he is granted immunity from prosecution
2) If he is given guarantees that his testimony and evidence derived from it won't be used against him.
Does D waive his privilege by merely taking the witness stand?
Yes to the extent necessary to cross examine him.

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