Criminal Procedure: Bar Exam Checklist

1) Hot Topics

a) Exclusion and its Limitations

b) Fruit of the Poisonous Tree Doctrine

c) Search and Seizure (4th A)

d) Miranda (5th A)

e) Pretrial Identification

f) Right to Atty / Jury Trial (6t A)

g) Ineffective Assistance of Counsel

2) Exclusionary Rule (Hot Topic!)

a) Definition

i) Prohibits the introduction of evidence obtained in violation of a criminal’s 4 th, 5th, and 6th Amend.
rights

ii) At a criminal trial

b) Fruit of the Poisonous Tree (Hot Topic!)

i) Illegally obtained evidence and all evidence obtained from that evidence must be excluded.

ii) Ex: If  was illegally arrested w/o probable cause and confessed, the confession is excluded.

c) Breaking the Causal Chain Exceptions (3 Ways)

i) Independent Source: Evidence obtained from a source independent of the original illegality.

ii) Intervening Act of Free Will: by the  will break the causal chain (Ex:  was illegally arrested and
released but then returned to the station house later to confess.

iii) Inevitable Discovery: Police would have discovered the evidence whether or not they had acted
constitutionally.

d) Limitations on the Rule: The Exclusionary Rule is Inapplicable to:

i) Grand Juries: witnesses may be compelled to testify even if the questions are based on evidence
from illegal search and seizures.

ii) Civil Proceedings.

iii) Internal Agency Rules.

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 iv) Parole Revocation Proceedings.

e) Good Faith of Police Defense (3 Circumstances)

i) Case law later changed by another judicial opinion.

ii) Facially valid statute as it then existed, even if the statute was later declared unconstitutional.

iii) Defective search warrant.

f) Exceptions to Good Faith Defense based on Defective Search Warrant (4 Exceptions)

i) Affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer
would have relied on it.

ii) Warrant is defective on its face.

iii) Police officer getting the warrant lied to the magistrate.

iv) Magistrate has wholly abandoned his judicial role.

g) Use of Excluded Evidence for Impeachment Purposes

i) Voluntary Confessions in Violation of Miranda is admissible to impeach

ii) Truly involuntary confession is never admissible.

iii) Fruit of Illegal Searches may be used to impeach a criminal defendant on cross.

(1) Ex: Prosecution had an illegally obtained shirt that the  cut holes out of to make pockets to
smuggle drugs.  took the stand and said he never smuggled drugs with a shirt. Prosecution
brought in the shirt.

(2) Illegally obtained evidence is never admissible to impeach a witness other than the .

3) Fourth Amendment

a) Arrests and Other Detentions

i) Public Place Exception

(1) Police do not need a warrant to arrest a  in a public place.

ii) Home Arrests Require Warrant

(1) Police must have an arrest warrant to do a non-emergency arrest in someone’s own home.

iii) Station House Detention

(1) Police officers must have full probable cause for arrest to bring a suspect to the station house
for questioning or fingerprinting.

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b) Evidentiary Search and Seizure

i) Does the  have a 4th Amend. right?

(1) Was there governmental conduct?

(a) Either the publicly paid police or

(b) Citizens acting at their discretion or

(c) Private security guards deputized as officers of the public police w/ the power to arrest.

(2) Did the  have a Reasonable Expectation of Privacy?

ii) If the  had a 4th Amend. right, did the police have a valid warrant?

iii) If the police did not have a valid warrant, did they make a warrantless search and seizure?

iv) If so, is it subject to the Good Faith Defense?

c) Reasonable Expectation of Privacy

i) Person must have a REOP with respect to the place searched or the item seized to have a 4 th
Amend. right.

ii) REOP gives a person standing to challenge a search or seizure

d) Standing

i) Automatic Standing

(1)  owned or had a right to possession of the place searched, including their own body.

(2) Place searched was in fact the ’s home, whether or not she owned or had a right to
possession of it (Ex: Grandson who lived at Grandparent’s house)

(3)  was an overnight guest of the owner of the place searched

ii) Sometimes Standing Examples

(1)  owns the property seized.

(2)  legitimately present when the item or area was searched.

iii) Things Held Out to the Public (No REOP) (9 Examples)

(1) Sound of one’s voice. (3) Paint on the outside of a car.

(2) One’s handwriting. (4) Smell of one’s luggage and other

e) Searches Conducted Pursuant to a Warrant

i) Requirements of a Warrant

(1) Issued by a neutral and detached magistrate.

(2) Based on probable cause.

(3) Particularly describes the place to be searched and the items to be seized.

ii) Showing of Probable Cause

(1) Use of Informers – Totality of Circumstances Test

(a) If affidavit of probable cause is based on information obtained from informers, its
sufficiency is determined by the totality of the circumstances.

(b) Warrant may be based on hearsay.

iii) Warrant Must Be Precise on Its Face

(1) Warrant must state with reasonable precision the place to be searched and the things to be
seized.

(2) Requirement is strictly enforced.

(3) Ex 1: Warrant for 416 Oak Street issued but the address is a duplex. In a multi-unit dwelling,
the warrant must say what unit to search. But if the police reasonably believe there is only
one unit, anything they discover from the wrong unit before they realize their mistake is
admissible.

(4) Ex 2: Warrant issued for specific documents and “other fruits and instrumentalities” unknown
at that time was valid in a complex criminal fraud case. The police had a difficult time
predicting exactly what form the evidence to prove guilt could take.

iv) Neutral and Detached Magistrate

(1) Magistrate must be neutral and detached from business of law enforcement.

(2) No good faith defense available if magistrate is not neutral and detached.

(3) Example: Clerk of court issuing warrants for violations of city ordinances is neutral & detached
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 (4) Not Neutral and Detached

(a) State attorney general.

(b) Magistrate who doesn’t get paid unless she issues warrants.

(c) Magistrate who comes along in the search

4) Exceptions to Warrant Requirement

a) Search Incident to Lawful Arrest

i) Lawful arrest

ii) Search must be contemporaneous with time and place of arrest

iii) Scope is the person’s wingspan

iv) Automobiles: Wingspan includes interior of car, compartments BUT NOT the trunk

b) Automobile Exception

i) Probable cause required

ii) Scope is entire car, interior, compartments, trunk, and containers

iii) Containers—must have PC that the item you’re looking for could reasonably be found in the
container (i.e., drugs search the container; TVs can’t search the container)

iv) PC can arise after the car is stopped but MUST arise before anything or anyone is searched

c) Plain View Searches

i) Officer must legitimately be there and

ii) Item must be in plain view

d) Consent Searches

i) Voluntary and Intelligent

(1) NOTE: Where police say they have a warrant, it invalidates consent

(2) NOTE: Police need not warn you that you have a right not to consent

ii) Authority to Consent

(1) Where two or more people have a right to the property or premises

(2) ANY one of the two can consent

e) Stop & Frisk: Terry pat-down

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 i) Reasonable suspicion (less than PC)

ii) Stop and frisk to search for weapons

iii) Weapons always admissible as long as the stop was reasonable

iv) Non-weapons: If it appeared from the frisk that it could be a weapon or contraband, admissible

f) Inventory Search

i) must follow procedure

ii) must actually be taking inventory, not “searching” for evidence

g) Hot Pursuit

i) Must be real hot

ii) At most, 15 minutes behind the felon is ok

iii) Search is just about unlimited if the pursuit was valid

iv) Police can go into anyone’s home, not just fleeing felon

h) Wiretapping & Eavesdropping

i) Both require a warrant

ii) ONLY Exception: Unreliable Ear: Everyone assumes the risk that the person to whom one is
speaking with is wired or working for the police

5) Miranda

a) Test

i) Custody—not free to leave

ii) Interrogation—any conduct where police knew or should’ve known that they would get a
damaging statement from 

b) Warnings

i) Right to remain silent

ii) Anything said can be offered against you in court

iii) Right to an attorney during interrogation

iv) If you can’t afford one, they’ll give you one

c) Where Miranda is Not Required

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 i) Spontaneous Statements

ii) Probation Interviews & Routine Traffic Stops (i.e., not custodial)

d) Waiver

i) Voluntary- of rational thought and own free will.

ii) Intelligent

iii) NOTE: Where  says nothing or shrugs his shoulders, NO WAIVER

e) Fifth Amendment “Right to Counsel”

i) During interrogation,  asserts right to terminate the interrogation and requests attorney

ii) Once asserted, police cannot reinitiate interrogation without presence of the attorney

iii) Covers any topic, not a specific offense

iv) NOTE: All other right to counsel claims fall under Sixth Amendment

6) Sixth Amendment Right to Counsel

a) Offense specific- non-petty crimes.

b) At critical stage in proceedings (arraignment)

c) when D facing sentence of at least 6 months

d) Lawyer needs to be present only if  is asked about that lawyer’s case

7) Pretrial Identifications

a) Denial of Right to Counsel

i) Post-charge lineups and show-ups (one-on-one) give rise to a right to counsel

ii) No right to counsel for photographs

b) Denial of Due Process

i) Substantial likelihood of misidentification

ii) Unnecessarily suggestive

c) Remedy

i) Exclude any in-court identifications

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 ii) Exception: Independent source—where prosecution can show ample opportunity apart from
faulty lineup to identify  at time of the crime (i.e., victim spent 40 minutes with the  at
gunpoint)

8) Bail

a) Immediately appealable

b) Preventative detention is constitutional

9) Grand Juries

a) States need not use grand juries

b) Charge by information

c) Exclusionary rules do not apply during grand jury

d) Proceedings are secret:  has no right to appear or send witnesses

10) Trials

a) Right to Unbiased Judge

i) No financial interest in the outcome

ii) No actual malice toward the  (i.e., “next time I see you, you’re getting the max” is not malice)

b) Right to Jury Trial

i) Whenever maximum authorized sentence exceeds 6 months = right to jury trial

ii) Up to and including 6 months = no right to jury trial

iii) Sum of sentences for criminal contempt exceeds 6 months = right to jury trial

c) Juries

i) At least six and must be unanimous

ii) No right to jury of 12

iii) Supreme Court has recognized non-unanimous jury trials (10-2 or 9-3)

d) Cross-Sectional Requirements

i) Right to have jury pool reflect cross section of the community BUT

ii) No right to have your own cross-section of the community

e) Discrimination in Voir Dire

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 i) Prosecution or Defense

ii) Preemptory challenge

iii) Cannot exclude based on race or gender

f) Ineffective Assistance of Counsel

i) Deficient performance by counsel

ii) But for such deficiency. The results of the proceeding would’ve been different

iii) Must be a colorable argument that  is NOT guilty; otherwise DENY it

11) Double Jeopardy

a) Attaches

i) Jury trial: when jury is sworn

ii) Judge trial: when first witness is sworn

iii) Does not attach when proceedings are civil

b) Exceptions Permitting Retrial

i) Jury cannot agree on verdict

ii) Mistrials for manifest necessity

iii) Retrial after successful appeal is not DJ

iv) Breach of agreed-upon plea bargain by 

(1) Plea and sentence is vacated

(2) Original charges reinstated

c) “Same Offense”

i) Two crimes do not equal the same offense if each crime requires proof of an additional element
that the other does not require

ii) Lesser Included Offenses

(1) Jeopardy for greater offense bars retrial for lesser offense

(2) Jeopardy for lesser offense bars retrial for greater offense unless

(a)  charged with battery

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(b) Victim dies

(c)  can be retried for murder

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