Criminal Procedure Bar Exam

I. Exclusion

A. Exclusionary rule; means that the remedy for constitutional or fed statutory violations while processing a crime is that the evidence is not admissible at trial.

B. Limitations

1. NOT apply to grand jury

2. not apply to civil cases

3. not available in parole revocation proceedings

4. OK to use excluded (real or physical evidence) for impeachment of D.

5. NOT ok for violations of knock and announce rule

C. Expansions

1. fruit of poisonous tree

a. any evidence or stuff coming from violations not allowed

D. good faith defense

1. Ok where police rely in good faith on judicial opinion that is later changed by another opinion

2. Ok where police rely in good faith on stat or ordinance later declared unconstitutional.

3. OK where policy relied in good faith on defective search warrant

a. Exceptions

1) NOT if affidavit is so lacking in probable cause, no reasonable police officer would have relied on it.

2) NOT if warrant invalid on face

a) Fails to state with particularity place to be search and things to be seized

3) NOT if police lied to or misled magistrate

4) NOT if magistrate has wholly abandoned judicial role

II. 4^th amendment

A. Law of arrests

1. arrest warrant

a. NOT required if public place

b. Required if non emergency in own home

2. Stationhouse detentions

a. Need probable cause to arrest you to compel you to

1) Come to police station for fingerprinting or interrogation.

B. Search and seizure

1. analysis

a. search by govt agent?

1) No- ok

2) Yes- did it violate a reasonable expectation of privacy?

a) No- OK

b) Yes-was there a warrant?

(i) Yes- proper warrant?

(1) NO- violation

(2) Yes- OK

(ii) No- exception to warrant requirement?

(1) No- violation

(2) Yes- OK

2. govt agent requirement

a. public police

b. private ind./employees acting under direction of public police

3. reasonable expectation of privacy?

a. NEED

1) Standing to object

a) YES-

(i) owned or right to possession of place searched

(ii) place searched is your home

(iii) overnight guest where searched

b) MAYBE

(i) Legitimately present

(ii) Owned things seized

2) Reasonable expectation of privacy

a) Attempt to hold private

b) NO

(i) Sound of voice

(ii) Style of handwriting

(iii) Paint outside car

(iv) Account records held by bank

(v) Location of vehicle in public or arrival in private

(vi) Areas outside home (cartilage)

(vii) Garbage left for collection

(viii) Land visible from public place

(1) Fly over

(ix) Smell of one’s car/luggage etc.

3) Proper warrant

a) Need probable cause and

(i) Ok to rely on hearsay

(ii) Use of informers

(1) Ok even if partly based on anonymous informer

(2) Totality of the circumstances test

b) Precise on face and

(i) State with particularity place searched and things seized

c) By neutral and detached officer

(i) Court clerks ok

(ii) Detached from law enforcement

d) or

e) Reliance in good faith

(i) See exception in exclusion

4) Exception

	Probable cause	Close in time		Other limits
Incident to arrest	YES (to arrest)	YES		wingspan
Incarceration inventory	NO	NO		Established routine
Arrest in car				Wingspan is whole care w/o trunk
Automobile search	YES	NO	Ok if reason after stopped. Only containers that would hold evidence sought
Plan view	YES	YES		Lawfully on premises to see plain view
Consent	NO	YES		NEED Voluntary Intelligent OK if Apparent authority NO if Objection by 1+ present occupant
Stop and frisk
stop	NO	YES		Reasonable and articuable suspicion of criminal activity
frisk	NO	YES		Reasonable belief armed -limited to pat down
Hot pursuit and	NO	YES- but once enter house ok		Emergency and no time for warrant
Evanescent evidence- afraid evidence will go away	NO	YES

C. Wire tapping and evesdropping

1. all requires warrant

2. exception

a. unreliable ear

1) everybody assumes risk that person he is speaking to is wired or consents to be evesdropped on.

b. ≠ violation if no attempt to keep conversation private

D. MIRANDA

1. warning

a. right to remain silent

b. all you say may be held against you in court of law

c. you have the right to a lawyer

d. if you can’t afford one, one will be appointed for you

2. when required?

a. Custody – not free to leave at time

1) Probation interviews and routine traffic stops NOT

2) Doesn’t have to be at police station

b. Interrogation

1) Any words/conduct that police knew or should have known would likely illicit a damaging statement

2) NOT routine booking questions

3) Spontaneous Not count

3. waiver

a. Need

1) Knowing

2) Voluntary

3) Intelligent

b. Must be verbal or written

1) No shoulder shrugs or silence

4. right to terminate interrogation

a. 5^th amendment right to counsel (created by SC, only when in response to Miranda/ other right to counsel in 6^th amendment)

b. Once D asserts right to terminate and requests attorney

1) NO more Q by Police w/o attorney present

III. Pre trial

A. identification

1. Limited purpose; check on id at trial (because so persuasive)

2. To attack need

a. denial of right to counsel or

1) post charge for line ups (group) show ups (alone)

b. denial of due process

1) show soo bad

a) victim says white guy (only white guy in lineup)

3. defense

a. adequate and independent source

1) ample opportunity to observe @ time of crime

B. bail

1. immediately appealable

2. preventative detention is constitutional

C. grand juries

1. states don’t have to use

2. exclusion not apply

3. secret (d no right to appear or call witnesses)

IV. Trial

A. Right to fair trial

1. right to unbiased judge (actual malice or $ interest)

B. right to jury trial

1. any time max sentence is over 6 m.

2. criminal contempt

a. if sume exceeds 6 m then yes

3. how many?

a. Minimum 6

1) Must be anonymous

b. Max 12

1) Can be 10-3 or 9-2.

4. cross sectional requirement

a. right to have jury pool reflect fair pop of area

b. not apply to actual jury

C. right to impartial jury

1. use of premptory challenge

a. unconstitutional for P or D to exercise it for race or gender

D. right to counsel

1. ineffective assistance of counsel (rare)

a. show deficient performance by counsel AND

b. but for result

E. guilty pleas/plea bargaining

1. are waivers of jury trials

2. SC agenda

a. Don’t like disturb after sentencing

b. Adopted contract theory of plea bargaining

3. Judge must address D personally (on record) regarding

a. Nature of charge

b. Max and min penalty

c. Right to plead not guilty and demand a trail

4. remedy

a. D may withdraw and plead again

5. collateral attacks on guilty pleas after sentence

a. general rule don’t disturbe

b. exceptions

1) involuntary plea (mistake)

2) lack of jurisdiction (of ct that took plea)

3) ineffective assistance of counsel

4) failure of prosecution to keep bargain (most likely)

V. death penalty

A. statute must

1. give D chance to present mitigating facts and circumstances

2. death penalty can’t be automatic

3. may not limit mitigating factors and all relevant evidence must be admissible

4. only jury not judge may determine aggravating factors and impose death penalty

VI. double jeopardy

A. 5^th amend. Can’t be tried for same offense twice by same sovereign

B. Only applies to same state

1. can be fed/state

2. can be state/state2

C. only applies to same crime

1. need same elements

a. not count if they both require proof of different element (hit and run v. manslaughter- one requires running, other intent)

2. lessor included offenses count if tried for higher one

3. higher offenses count if tried for lessor one

4. EXCEPT

a. New evidence

b. Victim dies from injuries

D. when attaches

1. when jury is sworn or

2. 1^st witness sworn

3. never in civil trials

E. exceptions

1. ok if first

a. ends in hung jury

b. discontinued because of manifest necessity or because d asked

2. ok if successfully appealed

3. ok if breach of plea bargain by D

VII. compelled to testify against self

A. 5^th amendment privilege not to be compelled to testify against self

1. any case

2. if response might tend to incriminate them

3. waived

a. if testify at all in any trial about it

4. scope of protection

a. ≠ protect from having govt use our bodies to incriminate us

1) Ok blood sample, hair sample etc.

b. Counts for

1) Custodial police interrogation

2) Lie detector test

5. P comments

a. Unconstitutional for prosecutor to make negative comment on D’s silence (or failure to testify)

6. eliminated if

a. grant of immunity (use and derivative use)

b. no possibility of incrimination (SOL)

c. waiver

1) criminal D by taking witness stand.

d.