Criminal Procedure 3
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Complete list of Terms and Definitions for Criminal Procedure 3

Terms Definitions
Indeterminate sentencing
Case law decided by courts
Thompson v. Louisiana did te
Surety Releasing defendants after arrest merely upon their promise to appear in court.
l. Lo-JI Sales Inc. v. New York
Arrest Notes: Qualifications:1) an encounter where suspect is free to leave (search based on consent) does not implicate 4th amend.2) forcible seizure implicates 4th amend and only allowed if:a) reasonable suspicionb) probable causec) roadblock pland) individual suspicion
4th amendment U.S. Constitution protects against unreasonable searches and seizures and requires probable cause before warrants are issued
Deterrence Justification The justification that excluding evidence obtained in violation of the Constitution prevents illegal law enforcement.
Public Defender Permanently employed defense lawyers paid for at public expense
b. Seizure of a Person i. When the officer
Voir dire meaning “to tell the truth” process of the prospective jurors are questioned to determine whether there are grounds for challenge. In federal Court the trial judge usually asks the questions
Alford plea defendant claim innocence yet pleads guilty for other reasons
Hearsay Rule Exceptions Excited utterances, Statement against penal interest, dying declaration, business records, past memory recorded, statements from doctors from patient seeking treatment,
Criminal Procedure Rules used to enforce substantive law.
Witherspoon-excludables Potential jurors opposed to the death penalty
Custodial Interrogation The questioning that occurs after police have taken suspects into custody
Speedy Trial Violation is determined by the totality of the circumstances. The factors: length of delay, reason for delay, whether the defendant asserted his right, and prejudice to the defendant. The remedy is dismissal with prejudice. The right doesn't attach until the defendant has been arrested or charged. If he's charged and incarcerated in another jurisdiction, reasonable efforts must be made to obtain the defendant's presence. It is a speedy trial violation to permit the prosecution to indefinitely suspend charges.
Georgia v. Randolph ii. A warrantless search is constitutional where a third party grant consents
If facts necessary to increase a sentence must be found, who must find these facts, judge or jury? Jury
closing statement Pros summarizes the evidence and presents theory of crime
Felony punishment is prison for more than a year
Alfred Plea defendant says that they are not guilty but it is in their best interest to take plea
Preemptory Challenge no reason/ unless by race or gender
protective sweep - exception to warrant- police allowed a quick look through the dwelling in places where a person may be hiding- allowed to protect officers- must be some articulable fear that another individual may be present... it is not given automatically
CA v Green - confrontation clause doesn't require excluding from evidence the prior statements of a witness who concedes making them, and is asked to defend or explain inconsistencies, thus opening himself to cross-examination- Court asks 3 questions - if yes to all, then evidence doesn't violate right to confrontation1) did witness testify under oath?2) was there an opportunity for cross examination at preliminary hearing?3) was the D represented by counsel at prelim hearing?
competency hearing A hearing to determine competency if competency is in question.
Indirect contempt Penalty of court that happens outside of court away from judge. 1) violation of gag order 2) talking to jury member 3) jury talking to anyone about the case 4) Prosecutor not providing discovery 5) subpoena refusal 6) summons refusal
Expert Witness an individual who has knowledge and skill in a particular field that is beyond the knowledge of the average person on the street.
Direct Examination Ask Witness questions by the person who called the witness.
Exempt Jurors Due to undue hardship and occupations that are important in the community.
Per Se Approach Looking at the totality of circumstances to determine whether an identification should be admitted into evidence.
Affirmative Defense A defense, such as self-defense or insanity, that requires defendants to present facts that support their innocence in addition to denying the charge.
Bind-Over Standard Enough evidence exists for the judge in a preliminary hearing to decide to send the case to trial
Plain View The police may make a warrantless seizure when they are: (1) legitimately on the premises; (2) discover evidence, fruits or instrumentalities of a crime, or contraband; (3) see such evidence in plain view; and (4) it is immediately apparent that the item is evidence, fruits or instrumentalities, or contraband.
Evanescent Evidence Any person who operates a motor vehicle shall be deemed to have given his consent to blood or chemical tests
The Exclusionary Rule prohibits the use of unlawfully gathered evidence by the federal government
i. Chambers v. Maroney i. Rule: Given probable cause to search an automobile
Can a judge sentence a defendant to any time of imprisonment (actual or suspended) if no lawyer has been offered to the defendant? No
US v Salemo allows federal judges to deny pretrial release of defendant when no set of release conditions will reasonably ensure the safety of the community from that individual.
Person can officially be charged by indictment or by charge
Serious offenses one for which more than 6 month’s imprisonment is authorized (Baldwin v. New York). In these cases the accused is entitled to a jury trial.
Alabama vs. White information from the informant must be corrorabated by a police investigation [reasonable suspicion]
Terry Stop - For stop and frisk, must have REASONABLE SUSPICION (based on totality of circumstances) that a crime is afoot or PC; and concern is for officer safety- Test for Terry Stop (implicates 4th Amend):1) Must have reasonable (objective) suspicion that crime is afoot (articulable facts - hunch not enough; less than PC; must be based on personal observation, tip from reliable informant, or anonymous tip -- anon tip requires extremely specific details describing conduct and corroboration)2) search is limited to pat down FOR OFFICER SAFETY (not automatic w/ stop - there must be reasonable belief D is a physical threat to police (not to be used to search for evidence))3) If object is felt during pat down, object cannot be manipulated to determine what the object is (PLAIN FEEL EXCEPTION - if it obvious to what the item is (gun, drugs) officer can seize object from inner clothing)4) PC for arrest can come from seized illegal objects
Consent - officer doesn't have to inform the D that consent is not required to make consent voluntary (Scneckloth)- Consent must be voluntary under the totality of circumstances:* Characteristics of D (age, intelligence, experience w/ law enforcement)* Police actions (length of questioning, length of detention, use of physical or psychological punishment)- police may enter if they have a reasonable belief that the person giving consent has the authority to do so (objective standard) - IL v. Rodriguez* reasonable belief is prosecution's burden to prove by preponderance of evidence from totality of circumstances- 'no' trumps 'yes' to consent when 2+ individuals are present (must get warrant)- consent of a person that has common authority over the premises is binding against an absent, non-consenting individual w/ the same authority (roommate consent search)
Public Attorney Attorney who works for the county and provides defense to the indigent.
Initiative Process Voters can act directly to change laws when they think the legislature and courts are not doing the right thing.
Miranda v. Arizona The U.S. Supreme Court established a "bright line" rules to govern custodial interrogation. Was not told the he could have a autorney, but signed his confession that stated "with full knowledge of my legal right, understanding any statement I make may be used against me". This is how Miranda rights came about.
Reasonable doubt standard Due process requires both federal and state prosecutors to prove every element of a crime beyond a reasonable doubt
Probative Evidence Evidence that proves (or at least help to prove) defendants committed the crimes they're charged with.
Independent Source Exception Evidence is admissible even if police officers violate the Constitution to obtain it if then in a totally separate action, they lawfully get the same evidence.
Due Process Approach to Confessions Confessions must be voluntary; involuntary confessions violate due process, not because they're compelled but because they might not be true
Defense of Entrapment Defense to criminal liability based on proof that the government induced the defendant to commit a crime she wouldn't have otherwise committed.
Immigration Enforcement Actions Immigration Services Division may do a "factory survey" of the workforce in a factory to determine citizenship of each employee. Moreover, even illegally obtained evidence may be used in a civil deportation hearing.
Conflicts of Interest Joint representation is not per se invalid. However, if the attorney advises the court of the resulting conflict of interest at or before trial, and court refuses to appoint separate attorneys, the defendant is entitled to automatic reversal. Defendant's conflict of interest with attorney is rarely grounds for relief. Defendant has no right to be jointly represented with his co-defendants if the government can show a potential conflict of interest.
Prosecutorial Duty to Disclose Exculpatory Information Prosecution must disclose exculpatory evidence and failure to do so is grounds for reversing a conviction if defendant can prove: 1) Evidence is favorable to defendant because it is either impeachement or exculpatory evidence and 2) Prejudice has resulted
ii. Apparent Authority Doctrine if consenting party appears to have authority it is reasonable to search based on that authority
How is this determination made? Totality of the circumstance test.
Failure to assert The witness is the holder of the privilege, and the only witness (or his or her lawyer) can asset it. If the witness fails to assert the privilege at the time an incriminating question is asked, the privilege is waived
Palko v. Connecticut Due Process clause of the 14th amend. applies to the states and incorporates those provisions of the Bill of Rights that are “of the very essence of a scheme of ordered liberty”
Peremptory challenge is a dismissal of a juror for reasons that do not need to be stated
Draper v. US - hearsay can be used to determine whether PC exists (in investigative context) but cannot use hearsay at trial to determine whether the D is actually guilty (prosecution)- If PC is based on hearsay, need to consider: 1) past reliability of informant, 2) corroboration of the hearsay- in Draper, the informant was known and reliable and the information was corroborated - therefore PC exists
Courts of General Jurisdiction grants authority to hear and decide all issues that are brought before them and normally hear all major civil or criminal cases.
Superior Court Judges Term Judges are elected to 6 year terms.
Doctrine of Respondeat Superior Employers are legally ilable for their employee's illegal acts.
Sequential Presentation Present members of a lineup one at a time and require witnesses to answer yes/no as they're presented.
When is Right to Counsel applicable? (1) Custodial police interrogation (2) Post-indictment interrogation, custodial or not (3) Preliminary hearings to determine probable cause to prosecute (4) Arraignment (5) Post-charge lineups (6) Guilty plea 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 (10) Appeals as a matter of right (11) Appeals of guilty pleas
Consent to Search A warrantless search is valid if the police have voluntary and intelligent consent. Knowledge of the right to withhold consent is not a prerequisite to establish consent. The scope of search is limited by the scope of consent, but extends to all areas which a reasonable person in the circumstances would believe it extends to. Any person with apparent equal right to use or occupy the premises may consent to the search, and any evidence found may be used against other owners/occupants.
Privilege Against Compelled Self-Incrimination Only natural persons may assert this (not corporations). May only be asserted by a party when the answer would incriminate himself - and may refuse to answer whenever his response might furnish a link in the chain of evidence needed to prosecute him. Privilege must be claimed at civil proceedings to prevent privilege from being waived for a later criminal prosecution. Criminal defendant has a right not to take the witness stand at trial and to not be asked to do so. Any other situation, person must be sworn and asked questions to which he may refuse to answer. The privilege only protects testimonial or communicative evidence. Must relate to a factual assertion or disclose information. Compulsory production of documents doesn't give rise to a 5th Amendment objection. Neither does searching for and seizing documents. Violation doesn't occur until person's compelled statements are used against him in a criminal case.
Searches in Foreign Countries, Border, and International Mail These are permitted without warrants If officials have a reasonable suspicion that a travelr is smuggling contraband in his stomach they can detain the traveler Roving patrols that reasonably suspect a vehicle inside the US border contians illegal aliens can stop the vehicle for questioning and border officials at fixed checkpoints inside the border can stop vehicles for quesitoning and dissemble the vehcile without reasonable suspicion
What cases do the GDC hear? 1) Misdemeanors2) Preliminary hearings for felonies
g. Illinois v. Rodriguez i. Rule A warrantless search of a home is valid if police at that moment reasonably believe (objective standard) that the consenting party has authority over the premises.
What is the test for determining the voluntariness of a confession? Totality of circumstances
Klofer v. North Carolina right to speedy trial applies in state and federal cases
US v. Dionisio - subpoena is not a seizure in terms of the 4th A; subpoena is neutral - doesn't have same attributes as arrest- voice exemplars are not seizures (nor do they implicate the 5th amend) b/c your voice is open to the public and a person doesn't have an expectation of privacy in his/her voice
Alford Plea or no contest Guilty plea accepted if accompanied by a claim of innocence.
Contract Defense Counsel Works for a law firm that has a contract with the county.
En Banc Review A hearing by all the judges on the court
New York v. P.J. Video what is the standard issuing search warrants for allegedly obscene material. order dismissing charges reversed probable cause to believe cotents of the videocassettes were obscene
What Constitutional Rights are binding on the states? 4th Amendment - Prohibition on unreasonable search and seizure, exclusionary rule. 5th Amendment - Right against self-incrimination, double jeopardy. 6th Amendment - Right to speedy trial, right to public trial, right to trial by jury, right to confront witnesses, right to compulsory process for obtaining witnesses, right to assistance of counsel. 8th Amendment - Prohibition against cruel and unusual punishment.
Searches at Border or Its Equivalent No warrant necessary for border searches. Neither citizens nor non-citizens have any 4th Amendment rights at the border. Roving patrols inside U.S. border may stop any vehicle for questioning of occupants if officer reasonably suspects car contains illegal aliens. Border officials may stop a car at a fixed checkpoint inside the border for questioning of occupants and may disassemble the car, even without reasonable suspicion.
Arthur Hobson Rule - NY The length of an interrogation and custody are factors in determining the voluntariness of confessions
Transaction Test in NY Defendant has to be charged with all offenses arising from any single transaction except when: 1) The offenses have substantially different elements 2) Each contains an element not in the other and is designed to prevent very different harms 3) One is criminal possession, the other is criminal use (other than sale) 4) Each involved death, injury, loss, etc to different victims 5) Violation of another jurisdiction's statute, terminated by court order in the other jurisdiction for lack of evidence as to an element not in NY crime or 6) One offense is NY RICO and the other is federal RICO
When does the 6th Amendment right to counsel attach? After the formal charge
j. Carroll v. United States i. If there is probable cause for the search of an automobile
What standard does the Eighth amendment embody? Brooad and idealistic concepts of dignity, civilized standards, humanity and decency?
When is a judge considered unconstitutionally biased? When the judge has a financial interest in the outcome or holds actual malice against the defendant.
Privilege: Privilege of a witness - A witness can be forced: Any witness, other than an accused on the witness stand, has the privilege of a witness to refuse to disclose any information that may “tend to incriminate” him or her to testify if ordered by the court - A refusal an result in a contempt citation - A witness who testifies can refuse to answer questions that might result in criminal prosecution
joinder of Defendants - two or more Ds can be tried together if they are alleged to have participated in the SAME ACT OR IN THE SAME SERIES OR ACTS- 2 part test1) was the joinder permissible? (balance trial efficiency with prejudice toward one of the Ds)2) once the court determines the rule was violated, court will reverse the conviction (REMEDY)
Motion for severance of defendants to have a trial separate from the trial of any co-defendants.
Accussatory Stage of the Criminal Process The point at which the criminal process focuses on a specific suspect
When does seizure of a person occur? Seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government. A valid warrant to search for contraband allows police to detain occupants of the premises during search. Seizure of a person by subpoena for a grand jury appearance is not within the 4th amendment protection.
Times When Defendant does NOT have a Right to be Represented by Counsel 1) Blood Sampling 2) Taking handwriting or voice samples 3) Precharge or investigative lineups 4) Photo identifications 5) Preiminary hearings to determine probable cause to detain 6) Brief recesses during the defendant's testimony at trial 7) Discretionary appeals 8) Parole and probation revocation proceedings and 9) Post-conviction Hearings
When will a guilty plea be RESCINDED? If prosecutor PROMISES a minimum sentence, but judge gives more
What is the standard for determining voluntariness? Preponderance fo the evidence (more likely thank not)
What is required for a facially valid search warrant? 2 P's: Probable cause and particularity.
3 steps of Challenge for Cause Step 1. The side making the allegation must establish a prima facie (meaning at first sight) case of discrimination based on race or other forbidden grounds. Step 2. The burden then sifts to the aide that made the peremptory strike to come pup with a race-neutral explanation for the strike. Step 3. The trial court is then required to decide whether the side opposing the peremptory challenges has proved purposeful discrimination.
Evolution of exclusionary rule - Weeks v. US - established X rule in fed courts- Wolf v. CO - refused to apply X rule to states- Mapp v. OH - overruled Wolf; apply to states
victims in California are not allowed to press charges Are victims in California allowed to press charges and drop charges?
Right to Defend Oneself (Waiver of Right to Counsel) Defendant has right to defend himself at trial if, in the judgment of the judge, his waiver is knowing and intelligent; he need not be found capable of representing himself effectively. Note that a defendant does not have a right to self-representation upon appeal.
Miranda Warnings: Legal Standard for Custody If at the time of the interrogation you are not free to leave, you are in custody. This covers the police station but also can cover your home or hospital bed if you are not free to leave. Probation interviews and routine traffic stops are not custodial.
What are options for Preliminary Hearing in GDC? 1) Find PC for felony, send to Circuit2) Find PC for misdemeanor and keep case3) Find no PC
What is a pretextual stop? Do they result in exclusion of evidence? Pretextual stop-when the police reasonably believe a driver violated a traffic law and they stop the car, when their ulterior motive is to investigate whether some other law, that they lack reasonable suspicion, has been violated; No, evidence is admissi
When does a person have standing to challenge an illegal search? When the person had a reasonable expectation of privacy in the place searched.
Gerstein v. Pugh; Riverside v. McLaughlin - if D is arrested and held on prosecutor's info, D is entitled to a prompt probable cause hearing (prompt is within 48 hours and is presumptively valid)... condition precedent of being arrest w/o arrest warrant (no hearing if arrested with warrant)- if probable cause hearing is not granted it is only HARMLESS ERROR- no right to counsel at probable cause hearing (not a critical stage)
Can a suspect waive his Miranda rights? Yes, but it must be a knowing, voluntary, and intelligent waiver.
What is the three step process in a stop and frisk? 1) Requires REASONABLE SUSPICION for the stop2) Officers can STOP person and ask questions3) If REASONABLE BELIEF that person is ARMED, can pat down to look for WEAPONS
When is a search warrant based on an affidavit invalid? When def. establishes: a false statement was included in the affidavit, the statement was intentionally or recklessly included, AND the false statement was material to the finding of probable cause.
What are the limitations on the search incident to arrest exception to the warrant requirement? (1) arrest must be lawful; (2) search must be contemporaneous in time and place with arrest; (3a) search may only extend to areas where suspect can reach to procure a weapon or destroy evidence ("wingspan"); (3b) When a person is arrested in their car "wingspan" includes the entire passenger compartment."
Reasons a person may want to represent him or herself To present a human face to the defendant. For defendant to appear more human. No trust with lawyers. conspire against prosecution. Receive gratification.
What are rules regarding an officer asking a suspect to provide ID? 1) If a valid Terry stop, can be required to provide ID2) If invalid stop, a search based on refusal to provide ID would be illegal
Who has standing to raise a wrongful stop as a reason to exclude evidence found during the stop? The driver AND passengers as they were wrongfully seized as well.
When is someone entitled to a jury trial? If actual sentence is for more than 6 months