Master of Laws (LLM) Criminal Law and Criminal Procedure Flashcards

24 sample cards from the Criminal Law and Criminal Procedure deck

Sampled from the end of the deck, so these are different cards from the ones shown on the syllabus page.

1. What does the automobile exception permit?

   If police have probable cause to believe a lawfully stopped vehicle contains contraband or evidence of crime, they may search the entire vehicle and any containers within it that could hold the object of the search, without a warrant.

2. What are the requirements of the plain view exception?

   Police may seize an item without a warrant if (1) they are lawfully present at the location, (2) the item's incriminating nature is immediately apparent, and (3) they have lawful access to the item itself.

3. What are the requirements for a valid Terry stop and frisk?

   A stop requires reasonable suspicion of criminal activity based on articulable facts. A frisk (pat-down of outer clothing for weapons) requires reasonable suspicion that the suspect is armed and dangerous.

4. What must valid consent to a search satisfy?

   Consent must be voluntary (under the totality of circumstances, not coerced) and given by someone with actual or apparent authority over the premises or items. Police need not inform the person of the right to refuse.

5. What is the exclusionary rule?

   A judge-made remedy that bars the prosecution from introducing evidence obtained in violation of a defendant's Fourth, Fifth, or Sixth Amendment rights in its case-in-chief.

6. What is the 'fruit of the poisonous tree' doctrine?

   Evidence derived from (a secondary product of) an illegal search, seizure, or interrogation is also inadmissible, because it is tainted by the original constitutional violation.

7. What are the three main exceptions that purge the taint of an illegal search (fruit of the poisonous tree)?

   (1) Independent source, (2) inevitable discovery, and (3) attenuation (intervening acts of free will or sufficient passage of time that dissipate the taint).

8. What is the 'good faith' exception to the exclusionary rule?

   Evidence obtained by police acting in objectively reasonable good-faith reliance on a defective search warrant (or on a statute/binding precedent later found invalid) is admissible, because exclusion would not deter police misconduct.

9. Name situations where the exclusionary rule does NOT apply.

   Grand jury proceedings, civil proceedings, parole revocation hearings, impeachment of the defendant's own testimony, violations of the knock-and-announce rule, and good-faith reliance on a warrant or law.

10. What does the Fifth Amendment privilege against self-incrimination protect?

    It protects a person from being compelled to give testimonial, self-incriminating evidence; it does not protect against compelled production of physical (non-testimonial) evidence like blood, handwriting, or voice samples.

11. What are the four Miranda warnings?

    (1) The right to remain silent, (2) anything said can be used against you in court, (3) the right to an attorney, and (4) if you cannot afford an attorney one will be appointed.

12. When are Miranda warnings required?

    Before custodial interrogation: when a person is (1) in custody (a reasonable person would not feel free to leave, akin to a formal arrest) and (2) subject to interrogation (express questioning or its functional equivalent) by someone known to be a government agent.

13. How does a suspect invoke the right to remain silent versus the right to counsel under Miranda, and what is the effect?

    Both must be invoked unambiguously. Invoking silence requires police to scrupulously honor it (questioning may resume later on a different crime). Invoking counsel bars all further interrogation on any crime until counsel is present or the suspect reinitiates.

14. What is the difference between the Fifth and Sixth Amendment rights to counsel?

    The Fifth Amendment (Miranda) right to counsel applies to custodial interrogation and is not offense-specific. The Sixth Amendment right to counsel attaches at the initiation of formal adversarial proceedings and is offense-specific.

15. When does the Sixth Amendment right to counsel attach?

    At or after the initiation of formal adversarial judicial proceedings (e.g., formal charge, preliminary hearing, indictment, information, or arraignment).

16. To which 'critical stages' does the Sixth Amendment right to counsel apply?

    Post-charge lineups, post-indictment interrogation, arraignment, preliminary hearings, plea negotiations, trial, sentencing, and the first appeal as of right. It does NOT apply to photo arrays, pre-charge lineups, or the taking of physical evidence.

17. What is the standard for ineffective assistance of counsel (Strickland v. Washington)?

    The defendant must show (1) counsel's performance was deficient (fell below an objective standard of reasonableness), and (2) the deficient performance prejudiced the defense (a reasonable probability the result would have been different).

18. What does the Double Jeopardy clause of the Fifth Amendment protect against?

    It protects against (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense.

19. What is the Blockburger 'same offense' test for double jeopardy?

    Two crimes are the same offense unless each crime requires proof of an element that the other does not. If each contains a distinct element, they are different offenses and double jeopardy does not bar separate prosecution.

20. What must occur before the protection against double jeopardy 'attaches'?

    Jeopardy attaches in a jury trial when the jury is sworn (empaneled), and in a bench trial when the first witness is sworn. In a guilty plea, it attaches upon acceptance of the plea.

21. When may pretrial identification evidence be excluded as a due process violation?

    When the identification procedure was unnecessarily suggestive AND created a substantial likelihood of irreparable misidentification, evaluated under the totality of the circumstances.

22. What reliability factors determine whether a suggestive identification is nonetheless admissible (Neil v. Biggers)?

    (1) The witness's opportunity to view the criminal, (2) the witness's degree of attention, (3) the accuracy of the prior description, (4) the witness's level of certainty, and (5) the time between the crime and the identification.

23. Does the Sixth Amendment right to counsel apply to a pretrial lineup, and when?

    Yes, an accused has a right to counsel at a POST-charge lineup or showup (a critical stage). There is NO right to counsel at a pre-charge lineup or at a photographic identification (photo array) at any time.

24. What is the remedy when an identification is obtained in violation of the right to counsel, and can the witness still identify the defendant at trial?

    The out-of-court identification is excluded. The witness may still make an in-court identification only if the prosecution shows by clear and convincing evidence that it has an independent source (such as the witness's observation at the time of the crime).

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