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Crim Pro
Finished, except read punishment/prisoners section of outline
| Question | Answer |
|---|---|
| Constitutional Reqt's Binding on States | -8 amend to U.S. Const apply to fed govt & applicable to states through 14th DP 1)4th prohibition against unreasonable search and seizure & the exclusionary rule 2)5th privilege against self incrim 3)5th prohibition against DJ 4)6th right to speedy tr |
| Constitutional Reqt's Binding on States Cont... | 5)6th right to public trial 6)6th right to trial by jury 7)6th right to confront witnesses 8)6th right to compulsory process for obtaining witnesses 9)6th right to assist of counsel in felony & in misdemeanor (imprisonment imposed) |
| Constitutional Reqt's Binding on States Cont... | 10)8th prohibition against crue and unusual punishment -Note: Const provides for floor of protection for crim Ds. Sates are free to grant greater protection |
| Constitutional Rights NOT Binding on States | -right to indictment by jury for capital and infamous crimes -not yet determined whether 8th prohibition against excessive bail creates a rigth to bail |
| WY | TO determine whether WY Const provides greater protection that U.S. Const, crt will consider: 1)textual language of each const & differences in language and structure 2)const'l history 3)preexisting state law 4)matters of particular state/local concer |
| Scope of Exclusionary Rule | -judge made doctrine that prohibits intro of evid obtained in violation of 4th, 5th, and 6th amend -unconst'l obtained evid is inadmissible at trial, and all "fruits of the poisonous tree" must also be excluded |
| Exceptions to "Fruit of Poisonous Tree" Doctrine | 1)the fruits derived from statements obtained in violation of Miranda 2)evid obtained from source independent of original illeglity 3)intervening act of free will by D 4)inevitable discovery 5)violations of the knock and announce rule |
| Limitations to Exclusionary Rule | -inapplicable to grand juries, civ proceedings, violations of state law, internal agency rules, and parole revocation proceedings -Doesn't apply when police arrest someone erroneoulsy but in GF thinkin they acted pursuant to valid arrest warrant |
| Harmless Erro Test | -if illegal evid admitted, resutling conviction should be overturned on appeal unless govt can show, BRD, that the error was harmless -should be released if he can show that the error had a substantial & injurious effect/influence in determining verdict |
| Enforcing the Exclusionary Rule | -govt bears burden of proving admissibility by preponderance of evid -D has right to testify at a supression hearing w/out his testimony being admitted against him at trial on issue of guilt |
| 4th Amendment | -provides that ppl should be free from unreasonable searches and seizures -govt seizures of persons, including arrests, are seizures w/iin scope of 4th and so must be reasonable |
| What Constitutes a Seizure? | -a seizure occurs when, under the totality of the circumstances (TOC) a reasonable person would feel that he was not free to decline the officer's requests or otherwise termiante the encounter |
| Arrests | -occur when police take a person into custody against her will for purposes of criminal prosecution or interrogration -arrest must be based on Probable Cause (PC) -Warrant not req'd for arrest in pub place -need warrant for nonemergency arrest in home |
| Investigatory Stops (stop and frisk) | -if police have reasonable suspicion of criminal activity or involvment in a completed crime, supported by articulable facts, they may detain a person for investigative purposes -reasonable susp that detainee is armed and dangerous, may frisk for weapons |
| Duration and Scope of Investigatory stop | -not subject to specific time limit -must act in a diligent and reasonable manner in confirming or dispelling their suspicions |
| Automobile Stops | -police may not stop a car unless they ahve at least reasonable suspicion to belive that a law has been violated -if special law enforcement needs are involved, S.Crt allows police to set up roadblocks w/out individualized suspicion |
| Valid Roadblock | 1)stop cars on the basis of some neutral, articulable standard 2)be designed to serve purposes closely related to a particular problem pertaining to automobilies and their mobility -seizure of all occupants -police may order occupants out |
| Automobile Pretextual Stops | -if police have PC to belive a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficeint cause to stop |
| Detention to Obtain Warrant | -If police have PC to believe that a suspect has hidden drugs in his home, they may, for a reasonable time, prevent him from going into the home unaccompanied so that they can prevent him from destorying drugs while they obtain a search warrant |
| Occupants of the Premies | -a valid warrant to search for contraband allows the police to detain occupants of the premises during a proper search |
| Station House Detentions | -police must have full PC for arrest to bring a suspect to the station for questioning or fingerprinting against the persons will |
| Grand Jury Appearance | -seizure of a person (by subpoena) for a grand jury appearance is not w/in the 4th amend protection |
| Deadly Force | -there is a 4th amend "seizure" when a police officer uses deadly force unless it is reasonable to do so under the circumstances (where suspect poses danger to his own life or lives of others) |
| Evidentiary Search and Seizure | 1)Does D have 4th A right(seizure by govt concerning a place/thing, D had legit expect of privacy)? 2)valid warrant(by neutral magistrate on showing of PC & reasonably precise as to place and items)? 3)No warrant, valid warrantless search/seizure? |
| Legitimate Expectation of Privacy | -person has a legit expectation of privacy any time: 1)he owned or had a right to possession of place searched; 2)place was in fact his home, whether or not he owned or had right to possession of it; or 3)he was overnight guest of owner of place search |
| Held out in public? | -no legit expectation of privacy -use of sense-enhancing technology violates |
| No Legit Expecation of Privacy in: | 1)sound of one's voice 2)one's handwriting 3)paint on outisde of one's vehicle 4)acct records held in bank 5)location of ones vehicle on public rds or its arrival at private residence 6)areas outside home and related buildings, such as barn |
| 7)garbage left for collection 8)land visible from a public place, even from a plane or helicopter 9) the smell of ones car or luggage (sniff-test) | |
| Searches conducted pursuant to a Warrant | -issued only if there is PC to believe that seizable evid will be found on person or premises at time warrant is executed -informants=TOC test, affidavit must be sufficient even though the reliability & cred of informer/basis of knowledge not established |
| Affidavit: Going "behind the face" | -held invalid if D establishes: 1)a false statement was included in the affidavit by the affiant 2)the affiant intentionally or recklessly included the false statement; and 3)the false statement was amterial to the finding of PC |
| Searches conducted pursuant to a Warrant | -warrant describe w/ reasonable precision the place to be searched and items to be seized -Magistrate who issues warrant must be neutral and detached |
| Exceptions to Warrant Req't | -Search incident to Const'l Arrest -"automobile" excetption -Plain view -Consent -Stop and frisk -hot pursuit, evanescent evidence, and emergency aid exceptions |
| Search Incident to Const'l Arrest | -incident to lawful arrest police may search person & areas into which he might reach to obtain a weapon or destroy evid -may also maek protective sweep of area for accomplices -search must be contemporaneous in time & place |
| Search Incident to Const'l Arrest: Automobiles | -conduct a search of passenger compartment of vehicle incident to arrest only if at time of search: 1)arrestee is unsecured & may gain access to interior of vehicle; or 2)police reasonably believe evid of offense for which person was arrested may be fou |
| Automobile Exception | -if police have PC to belive vehicle contains fruit of crime, they may search the whole vehicle and any container that might reasonably contain the item for which they have PC to search -may extend to packages belonging to passenger |
| Plain View Exception | warrantless seizure when they: 1)are legit'ly on premises 2)discover evid, frutis of instrumentalities of crim or contraband; 3)see such evid in plain view; and 4)have PC to believe the item is evid, contraband, or a fruit or instrumentality of crime |
| Consent Exception | -warrantless search valid if have voluntary consent -any person with apparent equal right to use or occupy the prop may consent --occupant can't give valid consent to search when co-occupant is presnt and objects to search are directed against co-occupa |
| Stop and Frisk Exception | -Police can stop a person w/out PC for arrest if she has an articulable and reasonable suspicion of criminal activity -a frisk will be justified only if officer reasonably thinks the suspect has a weapon |
| Hot Pursuit, Evanescent Evidence, and Emergency Aid Exceptions | -hot pursuit of fleeing felon may make warrantless search & seizure and even pursue suspect into private dwelling -may seize w/out warrant evid likely to disapppear before warrant's obtained -police may enter premises w/out warrant to address emergencie |
| Administrative Inspections and Searches | Exceptions permitting warrantless search: 1)admin searches to seize spoiled/contaminated food 2)admin searches of a bus w/in a highly regulated industry 3)inventory searches of arrestees or their vehicles pursuant to established department procedure |
| 4)search of airline passengers prior to boarding 5)searches of parolees & their homes 6)searches of govt EEs desks and file cabinets where the socpe is reasonable and there is work related need or reasonable suspicion of workrelated misconduct | |
| 7)drug tests of railroad EEs involved in accident 8)drug tests of person seeking customs employment in positions connected to drug interdiction; and 9)drug tests of public school students who participate in extracurricular activities | |
| Public School Searches | -oreasonable grounds for search necessary: 1)offers a moderate chance of finding evid of wrongdoing 2)measures adopted to carry out search are reasonably related to objectives of search 3)search not excessively intrusive in light of age and sex of stud |
| Valid warrant authorizing wiretap may be issued if: | 1)showing of PC 2)suspected persons to be overheard-named 3)warrant desc w/ particularity convos to be overheard 4)WT limited to short time period 5)WT terminated when desired info obtained 6)return made to crt, showing convos intercepted |
| Exceptions to Wiretap Warrant | -a speaker assumes the risk that peson to whom he is talking is an informer wired for sound or taping the convo -a speaker has no 4th Amend clalim if he makes no attempt to keep convo private |
| WY: Arrests: Jurisdiction | -officer outside his juris has auth as in his own if: 1)officer responding to request from law enforcem agency of another juris 2)officer has reasonable cause to believe crime is occuring involving immediate threat of SBI/death 3)officer in fresh pursuit |
| WY:Investigatory Detentions (Stop and Frisk) Source of Suspicion: Informants | -informant is confidential rather than anonymous=increases degree of reliability -Relevant considerations incl: 1)specificity of info set in informants tip 2)informant accurately predicted future activity; and 3)whether officer can corroborate tip |
| WY: Authomobile Stops | -can make traffic stop if observes traffic violation -may require drivers license, etc -generally may not ask the detained motorist questions unrelated to purpose of stop |
| WY: Reasonable Expectation of privacy | -Misplaced Prop: person doesn't surrender expectation of privacy by misplacing prop |
| WY: search Incident to Lawful Arrest: Automatic Companion Rule | -allows an officer to frisk companions of an arrestee for concealed weapons -need not have independent reasonable suspicion that person searched is armed and dangerous |
| WY: Consent Search | -acquiescence & nonresistance insufficient to establish consent -TOC examined to determine if voluntary -Factors: demeanor of officer, whether indiv'l told he could refuse request, presence of other officers, length of detention and nature of questionin |
| WY: Emergency Aid Exception | -community caretaker exception -facts learned during intial community caretaker contact may lead to reasonable suspicion of criminal activity, and that reasonalbe suspicion may lead to further investigation and an eventual arrest |
| Wyoming DNA Identification Record System Act | -req's persons convicted of felonies to provide DNA tissue samples, from convicts blood, hair, or saliva, but not limted to such sources -provides that reasonable force may be used to collect sample -no warrant is req'd given that test is unobtrusive |
| Confessions | -admissiblity of a Ds confession involves analysis under the 4th, 5th, 6th, and 14th Amendments |
| Confessions: 14th | -for self-incrim statement to be admissible under DP clause, it must be voluntary-determined by TOC -involuntary if there is some official compulsion -Harmless Error Test applies |
| Confessions: 6th Right to Counsel | -right to assistance of counsel in all criminal proceedings, include all critical stages of a prosecution after judicial proceedings have begun -right after formal proceedings begin, D who is arrest but not yet charged doesn't have 6th A right but a 5th |
| Confessions: 6th Right to Counsel at these stages: | -post-indictment interrogation -prelim hearing to determine PC to prosec -arraignment -post-charge lineups -guilty plea & sentencing -felony trials |
| -misdemeanor trials when imprisonment actually imposed or suspend jail sentence imposed -overnight recesses during trial -appeals as matter of right -appeals of guilty pleas | |
| Confessions: 6th Right to Counsel NOT at these stages: | -blood sampling -taking of handwriting/voice exemplars -precharge/investigative lineups -photo IDs -prelim hearing to determine PC to detain -brief recess during Ds testimony @ trial -discretionary appeals -parole/probation revocation -post-convic |
| Confessions: 6th Amend | -is offense specific -even though Ds 6th A rights have attached regarding the chrage for which he is being held, he may be questioned regarding unrelated, uncharged offenses w/out violating 6th A right to counsel |
| Confessions: 6th Amend Waiver | -can be waived if done knowing, voluntary and intelligent |
| Confessions: Violation of 6th Amend right to counsel | -at non-trial proceeding: harmless error rule applies to deprivtation of counsel -at trial: failure to provide counsel results in automatice reversal of conviction |
| Confessions: 5th Amendment Privilege Against Compelled Self-Incrim Miranda Warnings | -for admission or confession to be admissible under 5th A privilege against self-incrim, a person in custody must, prior to interrogation, be informed, in substance that...(miranda warning) |
| When Miranda Warnings req'd? | -prior to interrogation by police -only necessary if detainee knows he is being interrogated by govt agent |
| Waiver of Miranda rights | -govt must sho by preponderance of evid that waiver was knowing and voluntary |
| Invocation of Right to Counsel | -if detainee unambiguously indicates that he wishes to speak to counsel, all questioning must cease until counsel has been provided unless detainee: 1)waives right to counsel; 2)is released from custodial interrogation & 14 days have passed since release |
| Effect of Miranda violation | -evid obtained is inadmissible at trial under exclusionary rule -may be used to impeach but not prove guilt |
| Pretrial Identification: 6th Amend right to Counsel | -a suspect has a right to presence of atty at any POST-charge lineup or show up -accused does NOT have right to counsel at photo ID or when police take physical evid, such as handwriting or fingerprints |
| Remedy for unconst'l IDs | -is exclusion of the in-court ID -a witness may make an in-crt ID despite the existence of an unconst'l pretrial ID if in-crt ID has independent source-opportunity to observe at time of crime |
| Remedy: Hearing | -govt bears burden of proving that: 1)counsel was present 2)accused waived counsel; or 3)there is an independent source for the in-crt ID -D must prove an alleged DP violation |
| Pretrial Procedures: Preliminary Hearing to Determine PC to Detain | |
| Pretrial Detention-Bail | -bail can be set no higher than is necessary to assure the D's appearance at trial -if a state provides bail, arbitrary denials of bail will violate DP-detainee must be given opportunity to prove eligibility |
| Pretrial Proceedurers: Grand Jury Proceedings | -D has no right to notice that GJ is considering indictment, to be presnt and cornt witnesses, or itnroduce evid as they are secret -witenss subpoenaed to testify-no right to miranda warnigns, nor right to have atty present |
| GRAND JURIES | -D no right to have counsel present during GJ testimony -GJ may consider evid that would be excluded at crim trial -D must appear if called, although he can refuse to answer specific questions |
| Speedy Trial | -Factors considered in find violation of 6th A 1)length of delay 2)reason for delay 3)whether D asserted his right 4)prejudice to D -remedy for violation=dismissal w/ prejudice -attaches at arrest/charge |
| Prosecutors Duty to Disclose Exculpatory Evidence | -govt has duty to disclose material, exculpatory evid to D -Failure to disclose violates DP, grounds for reversal if D can prove: 1)evid is favorable to him because it impeaches or is exculpatory and 2)prejudice has resulted |
| Right to Fair Public Trial | -6th & 14th guarantee right to public trial, but right varies w/ state of proceeding --pretrial-presumptively open to public (pretrial suppression hearing) -Press & publice have 1st A right to attend trial itself, even when D and prosec agree to close i |
| Right to Unbaised Judge | -Dp is violated if judge is shown to have actual malice against the D or have had a financial interest in having trial result in guilty verdict |
| Trial: Other DP violations | 1)trial conducted in manner making it unlikely that jury gave evid reasonable consid 2)st compels D to stand trial in prison clothes 3)st compels D to stand trial/appear at penalty phase visibly shackled 4)jury is exposed to influence favorable to pros |
| Right to Trial By Jury | -only for "serious" offense: imprisonment for more than 6mos -no right for civ contempt proceedings/for crim yes if penalty is more thatn 6mos |
| Number and Unanimity of Jurors | -no const'l right to 12 but there must be at least 6(need to be unanimous) |
| Right to Venire Selected from Cross-Section of Community:Batson | -EP attack on use of peremptory strikes: 1)D must show facts/circumstances that raise inference that exclusion based on gender/race 2)if so, prosec must give race-neutral explanation 3)judge determines if explantion was genuine reasonf or striking |
| Sentence Enhancement | -if sub law provides that sentence may be increased beyond stat max for crime if add'l facts are proved, proof of facts must be submitted to jury and proved BRD |
| Trial: Right to Counsel | -D has right to counsel -violation=reversal -for nontrial denial=harmless error test applied |
| Waiver or Right to Counsel | -right to defend self if waiver is knowing and intelligent based on trial judge's consid of the Ds emotional and psychological state, he is competent to proceed pro se |
| Effective Assitance of Counsel | -Generally presumed effective -Circumstances Constituting Ineffective Assit: 1)deficient performance by counsel; and 2)but for deficiency, result of proceeding would have been different |
| Right to Confront Witnesses | -6th Amend -no right to face to face confrontation (serve public purpose) |
| Right to Confront Witnesses: Co-Ds confession | -not admitted if implicates other -admitted if: 1)portions referring to other D can be eliminated 2)confessing D takes stand & subjects self to cross 3)confession of nontestifying coD is being used to rebut Ds claim that confession was obtained coerci |
| Confront Witnesses: Prior Testimonial Statement of Unavailable witness | -prior testimonial evid may not be admitted unless 1)Declarant is unavailable and 2)the D had an opportunity to cross-examine declarant at time statment was made |
| Testimonial Evidence | -statments from pre-lim hearing, grand jury hearing, a former trial, or police interrogation conducted to prove past acts -ongoing emergency interrogations not testimonial -Forensic lab testing-testimonial |
| Taking a Guitly Plea | -judge must determine that plea is voluntary & intelligent -address D on record -be sure D knows and understands: nature of charge and crucial elements, max possible penalty & mandatory mins, & that he has right not to plead guilty, & if he does=waiver |
| Collateral Attacks on Guilty Plea After Sentencing | -plea can be set aside for: 1)involuntariness 2)lack of juris 3) ineffective assitance of counsel; or 4)failure to keep the plea bargain |
| Double Jeopardy | -attaches in a jury trial at the emplaneling and swearing of jury -In bench when the frist witness is sworn -juvenile-bar subsequent crim trial for same offense -generally doesn't attach in civ proceedings other than juvenile |
| DJ: Exceptions Permitting Retrial | 1)state may retry D whos 1st trial ends in hung jury 2)trial may be discontinued & D reprosecuted for same offense when there is manifest necessity to abort original trial or when termaintation occurs at the behest of D on grund not constituting acquitta |
| DJ: Exceptions Permitting Retrial Cont.... | 3)state may retry a D who has successfully appealed conviction unless grund for reversal was insufficient evid to support guilt (D may not be tried for greater offense) 4)charges may be reinstated after D breaches plea bargain |
| DJ: Same offense | G/R: two crimes are the same offense unless each crime req's proof of an add'l element that other doesn't, even though some of the same facts may be necessary to prove both crimes |
| 5th Amendment Self-Incrimination | -only testimonial evidence is protected, D has no self-incrim basis to object to lineup or other ID procedure -only compelled testimonial evid is privileged |
| Juvenile Court: Rihts afforded | 1)written notice of charges 2)assitance of counsel 3)opportunity to confront and cross-examine 4)right not to testify 5)right to have "guilt" establisehd by proof BRD -no right to trial by jury |
| Forfeiture Actions | -brought directly against prop and are generally regarded as quais-criminal in nature |
| Rigth to Pre-Seizure Notice and Hearing | -owner of personal prop isnot const'l entitled to notice and hearing before prop is seized -req'd before FINAL forfeiture of prp -Real prop=notice and opportunity to be heard is req'd before seizure |
| Forefiture Actions subject to 8th | -penal forfeitures are subject to the clause against Excessive fines, but civil forfeitures are not |
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