Multistate Essay Examination (MEE) Criminal Law and Procedure Flashcards

24 sample cards from the Criminal Law and Procedure deck

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

1. Under Katz, what is the two-part test for a reasonable expectation of privacy?

   (1) The person exhibited an actual (subjective) expectation of privacy, and (2) that expectation is one society is prepared to recognize as objectively reasonable.

2. Name areas/things in which there is NO reasonable expectation of privacy (third-party/exposure doctrine).

   Items held out to the public: bank records, phone numbers dialed (pen registers), garbage left at the curb, open fields, the sound of one's voice, handwriting, paint/odors, and the area visible from public airspace. (Note: long-term cell-site location info IS protected under Carpenter.)

3. What are the requirements for a valid search warrant?

   It must be issued by a neutral and detached magistrate, based on probable cause supported by oath or affirmation, and describe with particularity the place to be searched and items/persons to be seized.

4. What is the standard for probable cause and how is informant information evaluated?

   Probable cause is a fair probability that contraband or evidence will be found in the place searched. Informant tips are assessed under the totality of the circumstances (Gates), considering the informant's reliability and basis of knowledge; corroboration can cure deficiencies.

5. What are the two requirements for police to execute a search warrant, and the key exception?

   Police must knock and announce their presence and authority, then wait a reasonable time before entering. The knock-and-announce rule may be excused if officers reasonably suspect it would be dangerous, futile, or allow destruction of evidence. (Violation does NOT trigger the exclusionary rule.)

6. List the major recognized exceptions to the warrant requirement.

   Search incident to lawful arrest, automobile exception, plain view, consent, stop-and-frisk (Terry), hot pursuit/exigent circumstances/evanescent evidence, and special-needs/administrative searches. (Mnemonic: ESCAPISt.)

7. What is the permissible scope of a search incident to a lawful arrest, including for vehicles?

   Police may search the arrestee and the area within his immediate control (wingspan). For a vehicle occupant arrest (Gant), police may search the passenger compartment only if the arrestee is unsecured and within reaching distance, or it is reasonable to believe evidence of the crime of arrest is inside. Cell phone data requires a warrant (Riley).

8. State the automobile exception and its scope.

   If police have probable cause to believe a lawfully stopped vehicle contains contraband or evidence of a crime, they may search—without a warrant—the entire vehicle and any container (including a passenger's belongings) that could hold the item for which there is probable cause.

9. What are the requirements for a valid plain-view seizure?

   (1) Police are lawfully present at the location from which they view the item, (2) the item is in plain view, and (3) its incriminating character is immediately apparent (probable cause). No warrant is needed to seize it.

10. What makes consent to a search valid, and who may consent for shared premises?

    Consent must be voluntary and intelligent (police need not warn of the right to refuse). Any person with apparent authority over the premises may consent. A physically present co-occupant's refusal overrides another occupant's consent (Randolph).

11. What is a Terry stop and frisk, and what justifies each?

    A stop requires reasonable suspicion of criminal activity based on articulable facts. A frisk (pat-down of outer clothing for weapons) requires reasonable suspicion the suspect is armed and dangerous. Under plain-feel, officers may seize contraband whose identity is immediately apparent by touch.

12. State the exclusionary rule and the fruit-of-the-poisonous-tree doctrine.

    Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments is generally inadmissible in the prosecution's case-in-chief, as is derivative evidence (fruit of the poisonous tree).

13. What are the exceptions/limitations that allow admission of illegally obtained or derivative evidence?

    Independent source, inevitable discovery, attenuation (intervening acts of free will), and the good-faith reliance on a defective warrant or erroneous record (Leon). Also, illegal evidence may be used to impeach the defendant's testimony.

14. Who has standing to challenge a search, and does a passenger have standing for a car search?

    Only a person whose own reasonable expectation of privacy was violated has standing—Fourth Amendment rights are personal and cannot be asserted vicariously. A mere passenger with no possessory interest lacks standing to challenge a vehicle search (but may challenge the stop itself).

15. When do Miranda warnings apply, and what must they convey?

    They apply to custodial interrogation by police. Warnings: the right to remain silent, that anything said can be used against the defendant, the right to an attorney, and that an attorney will be appointed if indigent. 'Custody' = freedom of action curtailed to the degree of a formal arrest; 'interrogation' = words/conduct police should know are likely to elicit an incriminating response.

16. How must a suspect invoke, and what is the effect of invoking, the Miranda right to silence versus right to counsel?

    Both must be invoked unambiguously. Invoking the right to silence requires police to 'scrupulously honor' it (they may re-approach later about a different crime). Invoking the right to counsel bars all further interrogation on any crime until counsel is present or the suspect reinitiates (Edwards); protection lapses 14 days after release from custody (Shatzer).

17. Compare the Fifth Amendment and Sixth Amendment rights to counsel.

    Fifth Amendment (Miranda): triggered by custodial interrogation, non-offense-specific, protects against compelled self-incrimination. Sixth Amendment: attaches at the initiation of formal adversarial proceedings (formal charge/indictment/arraignment), is offense-specific, and applies to all critical stages including deliberate elicitation by informants.

18. At which post-charge identification procedures does the Sixth Amendment right to counsel apply?

    At post-charge lineups and showups (in-person), the defendant has a right to counsel. It does NOT apply to photo arrays/identifications or to the taking of physical evidence like fingerprints or handwriting samples.

19. On what due process ground can a pretrial identification be excluded?

    If the identification procedure was unnecessarily suggestive and created a substantial likelihood of irreparable misidentification. Even a suggestive procedure is admissible if reliable under the totality of the circumstances (e.g., witness's opportunity to view, degree of attention, accuracy of description, certainty).

20. When does double jeopardy attach in jury and bench trials, and what does it prohibit?

    Jeopardy attaches when the jury is empaneled and sworn, or in a bench trial when the first witness is sworn. It bars: retrial for the same offense after acquittal or conviction, and multiple punishments for the same offense.

21. Under the Blockburger test, when are two crimes the 'same offense' for double jeopardy?

    Two crimes are NOT the same offense if each requires proof of an element the other does not. If one is a lesser-included offense (all its elements contained in the other), they are the same offense and barred.

22. What are the key exceptions permitting retrial despite double jeopardy?

    Retrial is allowed after a hung jury (mistrial for manifest necessity), a successful defense appeal (unless reversal was for insufficient evidence), a mistrial granted at the defendant's request or with consent, and prosecution by a separate sovereign (dual sovereignty—e.g., state and federal, or two states).

23. What are the core Sixth Amendment trial rights besides counsel?

    The rights to a speedy trial, a public trial, an impartial jury (for offenses with authorized imprisonment over six months), to confront witnesses (Confrontation Clause bars testimonial hearsay without cross-examination), and to compulsory process for obtaining witnesses.

24. What is the standard for ineffective assistance of counsel under Strickland?

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

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