BAR Exam - Criminal Procedure Outline Cheat Sheet
BAR Exam - Criminal Procedure Outline Cheat Sheet
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This 15 page Bundle was uploaded by Will Helvestine on Thursday March 6, 2014. The Bundle belongs to a course at University of California - Los Angeles taught by a professor in Fall. Since its upload, it has received 1427 views.
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Date Created: 03/06/14
1 CA Court System a Felonies and misdemeanors tried in superior court b Three kinds of appeals i Discretionary subject to rejection by the appellate court 1 Misdemeanors ii Automatic if D wants to appeal he may 1 Felonies noncapital automatically appeal to CA Court of Appeals iii Mandatory there must be an appeal 1 Death sentences mandatory appeal to the CA Supreme Court II Federal Court System a US Magistrate i Federal civil cases b US District Court i Federal felonies ii Automatic appeal to the Ninth Circuit iii Discretionary appeal to the US Supreme Court III Federal Habeas for State Prisoners a Overview i Anyone who is incarcerated for any reason can petition a judicial officer challenging his detention 1 If the judge wants to hear the claim he grants the petition for the writ of habeas corpus 2 If you succeed on the claim he grants the writ a And then prosecution can appeal to the Ninth Circuit ii Federalism issue should US District Courts be allowed to overturn the decisions of the CA Supreme Court iii Three bars to bringing a federal habeas claim 1 Failure to exhaust state remedies no finality 2 Waiver doctrine of waiver bar 3 Adequate and independent state procedural ground justifies the state holding a E g prisoner failed to raise an issue in a timely fashion b Two procedural postures prisoner may i Relitigate a claim he s already raised in state court 1 But can t relitigate Fourth Amendment claims where the state has already provided a full and fair opportunity to litigate the claim ii Litigate for the rst time a claim he s never raised before 1 Doctrine of waiver bar Wainwright v Sykes if the failure to raise the claim in state court acts as a waiver then that waiver also applies in federal court a Unless prisoner can show i Cause for never raising the claim and l E g state interference 2 Ineffective assistance of counsel although this claim must be raised rst in state court a Some courts have 90day window after trial to raise IAC claim if not raised it s waived ii Prejudice for having failed to do so 1 Prisoner must clear a signi cantly higher hurdle than plain error 2 Overwhelming evidence of guilt will defeat a prejudice argument c Actual Innocence Exception to the doctrine of waiver bar not required to show cause in extraordinary cases where the constitutional violation has probably resulted in the conviction of an innocent person i Prisoner must show new credible evidence is of such a nature that there is a reasonable probability that a reasonable juror might have voted not to convict ii Catchall only applies when all other remedies have been exhausted IV Habeas Flow Chart a Is the petition timebarred i One year after exhaustion of state proceedings for all cases ii Six months for death cases b Is it a first or successive habeas petition i First petition go to C ii Successive allowed only if 1 New rule made retroactive by Supreme Court or 2 New facts that could not have been discovered through due diligence prove by clear and convincing evidence that no reasonable factfinder would have found prisoner guilty c Have state proceedings been completely exhausted i If petition contains exhausted and unexhausted then entire petition dismissed d Does petition seek protection of a new rule or existing rule of constitutional law i If new rule is that rule applied retroactively l Teague the function of the habeas court is to apply the law as it existed at the time of trial a Therefore a habeas court may not announce or apply a new rule of constitutional criminal procedure unless that new rule is entitled to retroactive application b Only two cases where retroactive application is appropriate i The new rule rede nes the substantive crime or ii It is so essential to the fundamental faimess of guilt determination that it is indispensable l Impossible to meet this prong e Was the issue raised in trial court proceedings i If not raised it can be raised on habeas only if 1 Cause and prejudice waiver bar or 2 Actual innocence f Is it an issue that can be raised on habeas i Fourth Amendment claims cannot be relitigated if there had been a full and fair opportunity for hearing ii Claims barred by an adequate state procedural rule cannot be heard g Can the federal court grant habeas relief i Relief can be granted if either 1 There was an unreasonable application of clearly established federal law OR a 2254dl 2 The decision was based on an unreasonable determination of facts a 2254d2 V The Exclusionary Rule and other remedies for police misconduct a Overview i iii iv Exclusion is the constitutionallyrequired remedy for illegal searches and seizures Mapp v Ohio 1 Available in criminal proceedings only Does not apply to grand juries 1 Grand jury witness may be forced to testify based on illegallyseized evidence Impeachment only the D s trial testimony may be impeached by illegally obtained evidence 1 Not the testimony of other witnesses Fourth is violated when police bring a third party or the media with them when the presence of that third party does not aid in the execution of the warrant b The Good Faith Defense i We will not exclude evidence where the police rely in good faith on 1 A judicial opinion later changed by another opinion 2 A statute later declared unconstitutional 3 A defective search warrant a Four exceptions to this rule i The underlying affidavit is so lacking in probable cause that no reasonable officer would have relied on it ii The warrant is invalid on its face 1 Ie doesn t state with particularity places to be searched and things to be seized iii The affiant lied to or misled the magistrate iv The magistrate has wholly abandoned his judicial role c Fruit of the Poisonous Tree exclude all evidence obtained or derived from the illegal search i Three ways to break the chain 1 Independent source for the evidence 2 Intervening acts of free will by the D 3 Inevitable discovery ii Does not apply to physical evidence obtained through unwamed but voluntary statements 1 Although statements themselves might be excluded d Other remedies i Criminal 18 USC 242 ii Civil 42 USC 1983 iii Administrative review iv Injunctions 42 USC 1983 1 Only available when a There is a pattern of misconduct usually on orders from the top b No criminal prosecutions are contemplated VI Law of Arrest a Overview i Limited by the Fourth Amendment an arrest is a seizure of a person ii Arrest occurs when one of two things happens 1 You are physically detained 2 You respond affirmatively to a police command e g Stop iii Sliding scale of police authority 1 Request for information minimal intrusion a May be conducted on a whim b Individual s right to not respond does not give probable cause to arrest 2 Right to inquire a Must have founded suspicion that criminal activity is afoot b Detention must be brief c If individual cooperates the police must release him 3 Stop and frisk a Must have reasonable suspicion that the individual has committed or is about to commit a crime i Fitting the drug courier profile is sufficient b If police reasonably believe he may be armed they can frisk him 4 Arrest a Must have probable cause consider i Furtive gestures ii Flight iii Failure to identify oneself 1 Not alone sufficient but combined with reasonable suspicion it is enough iv Reputation 1 Of both the area and the person v Sensory perceptions b Police may then conduct warrantless search incident to that arrest iv Flexibility of crime 1 Offense giving rise to probable cause may be totally unrelated to the crime that leads to arrest v Flexibility of suspect 1 Police may arrest all three people in a car in which drugs are found when each person denies ownership b Warrantless arrests i Felonies police may make a warrantless arrest when they have probable cause to believe a felony was committed and that this person did it ii Misdemeanors police may make a warrantless arrest for misdemeanors committed in their presence 1 Presence using any of the five senses iii Where police execute an arrest warrant at someone else s house they do not have authority to search the house c Other detentions i Probable cause needed to compel a person to come downtown for ngerprinting or interrogation ii Automobile stops 1 Can t pull you over just to check licenseregistration a Does not apply to boats they can be stopped individually 2 Sobriety checkpoints are okay narcotics checkpoints are not 3 The subjective intentions of the police officers play no role in ordinary probable cause Fourth Amendment analyses 4 Merely boarding a bus and questioning passengers does not qualify as a seizure or arrest d Use of sensory aids to establish probable cause i Use of a senseenhancing device not in general public use to explore the details of a home that previously would require a physical intrusion is a search and thus unreasonable without a warrant ii Use of beeper on car does not implicate Fourth so long as the car is on a public street 1 Attachment of the beeper must have taken place in public e Use of deadly force i May be used to effectuate and arrest for a felony only where 1 Reasonable grounds exist to believe suspect is armed OR 2 Suspect poses an extraordinary danger to the public a When chasing a felon police may force car off highway VII Search and Seizure model a Does the person even have a Fourth Amendment right Two requirements i Governmental conduct 1 Publiclypaid police on or offduty 2 Privatelypaid police only if they are deputized 3 Individuals acting under the direction of the police ii Reasonable expectation of privacy 1 Can be defeated in two ways a No standing i You always have standing if 1 You own the premises searched 2 You work on the premises searched 3 You live on the premises searched 4 You are an overnight guest ii You sometimes have standing if 1 You are legitimately present when the search takes place a Does not apply if you are there solely for business purposes 2 You own the property seized b Things held out to the public i Voice handwriting odors field tests for drugs b Did the police have a valid search warrant i Valid warrant probable cause particularity neutral and detached magistrate ii Probable cause 1 Affidavit must show probable cause that illegal evidence will be found in a particular place a Must include facts not merely legal conclusions b If there is a lie in the affidavit the search is illegal only if the challenged assertion was central to the showing of probable cause iii Particularity requirement 1 Warrant must state with particularity the places to be searched and the things to be seized 2 Some degree of speci city is required but be reasonable police simply may not know what the third oor looks like 3 Anticipatory warrants to be executed in the future are constitutional iv Neutral and detached magistrate l Magistrate must be neutral and detached from the often competitive business of law enforcement a Not detached attomey general magistrates paid per warrant b Detached court clerks V Informants 1 Warrant may be based in part on an anonymous informant s tip so long as the sum of the facts in the affidavit are sufficient to allow the magistrate to make a commonsense evaluation of probable cause vi Execution of warrants 1 Announcement requirements a Knockandannounce required b But police may dispense of the rule if to do so would be i Futile ii Dangerous iii Would result in the evisceration of evidence 2 Detention of occupants a Where there is a valid search warrant the police may detain people found on the premises for the duration of the search i Police already have probable cause to arrest ii Person could assist with the search iii Person could be a witness to the search b But they may not search or frisk those people unless what they find at the scene gives them reason to do so c Police may detain people while they go get a warrant VIII Competing views of the Fourth Amendment a Minority view Rehnquist Thomas the Fourth Amendment guarantees the right to be free from unreasonable searches whether or not police had a warrant i Ask Was the conduct reasonable b Majority view the Fourth Amendment creates a constitutional preference for the use of warrant the centrality of the warrant requirement i Ask Was it reasonable not to have gotten a warrant IX Exceptions to the Warrant Requirement a Warrantless search incident to a lawful arrest i Must be contemporaneous with the time and place of the arrest ii Search limited to the person and his wingspan 1 Wingspan include entire interior of car and everything in it but not trunk or locked glove compartment a Anything beyond wingspan must fall within an exception to the warrant requirement e g automobile exception 2 The wingspan travels with you a Detainee who goes into his apartment allows police to search everything within wingspan b The Automobile Exception i Does not apply to all car searches only those where the police already had probable cause to believe the car contains the fruits or instrumentalities of crime 1 The same probable cause that would have been sufficient for a warrant anyways 2 This probable cause must have arisen prior to ANY search a No bootstrapping you can t first find drugs then use those drugs as probable cause to search the entire car ii If this standard is met police may search the entire car trunk included and every package or container they believe may reasonably hold the item they re searching for 1 Regardless of who owns the package or container iii Motor homes Winnebagos are searchable mobile homes trailers are not c The Plain View Exception i Two requirements 1 Police must have been legitimately on the premises and 2 The fruits or contraband must have been discovered in plain view ii Car inventories 1 Police may inventory the entirety of an impounded car and its containers d The Consent Exception i Two requirements consent must be 1 Voluntary and 2 Intelligent ii Consent cannot be based on what tums out to be an invalid warrant iii Who may consent Where two or more people have an equal right to use a piece of property then any one of them can consent to its warrantless search 1 U Parents may consent to child s living space unless child is emancipated or paying rent Either user of shared luggage may consent Desk clerk at hotel may not consent to a search of a room So long as someone has apparent authority e g possession of a key he may consent Where two people have an equal right and both are present the non consenting individual controls e Stop and Frisk i Twopart test Police must have 1 reasonable suspicion to stop and then 2 reasonable suspicion that the suspect is armed in order to frisk ii When police stop a car they may order driverpassengers out of the car iii Fitting the drug courier pro le is sufficient for reasonable suspicion iv If the stop was reasonable weapons found are always admissible v Nonweapons 1 Ask how much did it look or feel like a weapon from the outside a Search of toolbox okay tiny bag of heroin not okay f Evanescent Evidence evidence which might go away if the police get a warrant i Fingemail scrapings and blood sample can be taken against suspect s will ii Fires no warrant needed so long as fire is still bumingsmoldering g Hot Pursuit i Must be within 15 minutes of a eeing felon ii Once police enter a home in hot pursuit there are no limitations as to whatwhere they can search h Wiretapping eavesdropping i All wiretapping requires a warrant with two exceptions l Unreliable Ear everyone assumes the risk that the person they are talking to is bugged 2 Uninvited Ear no privacy interest in conversations you make no interest to keep private X Interrogations and Confessions a Two reasons for excluding forced confessions i Unreliability ii Control over techniques of coercion b Law of Voluntariness in order for a statement to be admissible it must be voluntary c Sixth Amendment right to counsel approach attaches when the D already has an attomey and the police ask him about a particular offense offensespeci c i But does not attach when D is asked about an unrelated offense even one that arises out of the same facts 1 Use the doublejeopardy rule to determine if it in an unrelated offense d Fifth Amendment approach i Miranda the constitutional prerequisite to the admissibility of any product of a custodial interrogation is a giving of the Miranda wamings ii What triggers Miranda Custody interrogation l Custody a person is in custody when he is not free to leave a Depends on whether a reasonable person would feel free to leave b It is an objective test don t take into account age or inexperience c Traffic stops are not custodial 2 Interrogation any conduct where the police knew or should have known they might get a damaging statement a Nonmirandized spontaneous statements are admissible i But you must Mirandize before asking followup questions iii Waiver of Miranda rights must be voluntary and intelligent 1 No waiver from silence iv Fifth Amendment right to counsel 1 Once the D asserts his right to terminate interrogation and requests and attomey reinitiation of the interrogation without the attomey present violates his Fifth Amendment right to counsel a Not offensespecific police may not continue with any interrogation on any topic b I need help with the process of interrogation rather than with this specific offense 6th e Admissibility i Mixed question of law and fact 1 Although the credibility is a question of fact to be argued before the jury 2 Gov t bears the burden of showing voluntariness ii Impeachment 1 NonMirandized statements may be used to impeach iii Derivative evidence 1 If the original police illegality was a Miranda violation then subsequent evidence is not excludable under the Fruit of the Poisonous Tree doctrine XI Right to Counsel and Effective Assistance a Overview i An indigent D is entitled to counsel in all misdemeanor cases in which he actually gets jail time 1 Judge can decide beforehand that he will not impose jail time in which case D is not entitled to an attomey ii Automatic appeals Indigent D is entitled to free transcript and attomey 1 Attomey must present all possible points of appeal in Anders brief a Even if he doesn t plan to argue them all iii Habeas petitioners even those facing death are not entitled to attomeys iv Gov t may rely on uncounseled misdemeanors in order to establish D s status as a recidivist v D does not have a right to request that attomey make all possible arguments so long as attomey s refusal to make an argument does not amount to ineffective assistance of counsel vi D entitled only to a competent attorney not necessarily the attorney of his choice b Selfrepresentation i D has a constitutional right to defend himself if he can show competency 1 D understands the nature of the charges against him and 2 D is able to participate with a lawyer in the presentation of his case c Ineffective Assistance i D must show 1 Counsel s conduct was unreasonable and a Ie fell below an objective standard of reasonableness b Presumption of competence 2 There was a reasonable probability that counsel s conduct affected the outcome of the case ii Factors to consider 1 Lateness of appointment 2 Lawyer s experience 3 Duty to prepare and present defenses a Deference to strategic or tactical decisions 4 Duty to know the law 5 Con ict of interest especially among clients XII Preliminary Hearings a Three purposes i Determine probable cause to detain Gerstein hearing 1 Quick check on arrest 2 Constitutionally required whenever there is a A significant restraint on liberty and b No prior arrest warrant or indictment 3 Typically takes place within 48 hours after arrest 4 Nonadversarial no right to counsel hearsay allowed 5 But no real remedy for failing to hold a Gerstein hearing ii Set bail and appoint counsel initial appearance 1 Nonadversarial no remedy for failure to hold iii Determine probable cause to prosecute andor discovery device 1 Reviews P s decision to prosecute 2 Not constitutionally required and may be waived by D 3 Adversarial D must have counsel 4 Get testimony from witnesses which may be used at trial if those witnesses are unavailable a Crawford in order to introduce outofcourt statements for testimonial purposes there must be i Unavailability of the witness and ii A prior opportunity to crossexamine 5 D usually does not present a defense but simply crossexamines XIII Pretrial identification a Two ways to attack pre trial IDs i Sixth Amendment 1 Lineups and showups give rise to right to counsel photo arrays do not ii Due process attack pretrial ID 1 Was unnecessarily suggestive and 2 Carried a substantial likelihood of misidentification a All okay i Hospital showup ii 6photo lineup okay iii Station house showup 7 months after crime b Remedy exclude pretrial ID and any incourt ID derived from pretrial ID i Unless P can show a source of identi cation independent of the faulty one 1 Consider a Opportunity to observe b Ease of identi cation c No misidenti cation c WadeStovall hearing pretrial motion to exclude pretrial identi cation i Burdens of proof 1 P counsel and independent source 2 D violation of due process a If successful burden shifts to gov t to show exigent circumstances XIV Privilege Against SelfIncrimination a Overview i May be asserted in any proceeding of any type where you are asked a question under oath which might incriminate you 1 Criminal not civil incrimination ii Can t just remain silent must say I refuse to answer that question on the ground that the answer might tend to incriminate me 1 Or just don t take the stand at all P may not comment and judge must instruct jury not to draw adverse inferences iii Must be asserted early and often 1 If you don t assert it the first time you waive the Fifth for all subsequent criminal proceedings b The privilege only applies to testimonial or communicative evidence i Not real or physical evidence breathalyzer appearance at lineup subpoena of bank records 1 Business records so long as the subpoena does not compel the creation of the records they are not protected by the Fifth c Mandatory lings eg tax returns i Reporting requirement must be neutral on its face ii Reportees must le the report but may invoke the privilege with respect to speci c items in the report iii Failure to assert the privilege acts as a waiver d Suspect class exception the privilege may be invoked when the law targets a speci c class rather than everyone i This exception is constricted by the Regulatory Purpose Doctrine where the purpose of the information is for civil or administrative purposes and there is only one way to get it 1 Applies to vehicle stop and identify statutes e Eliminating the privilege three ways i Grant of immunity 1 Two types a Transactional immunizes the witness from prosecution for any transaction about which the witness testifies b Use and derivative use immunizes the witness from prosecution for incriminating statements made under the grant of immunity ii No potential for prosecution iii Waiver XV Grand Juries a Overview i Right to grand jury indictment has not been incorporated by the states ii Two types of grand jury 1 Charging grand jury reviews probable cause to prosecute a Part of the ordinary chronology of a criminal case b Used most famously in NY 2 Investigative grand jury impaneled to investigate crime a Used everywhere b Grand jury selection i A complaint of systematic racial exclusion can be raised at any time 1 But all other objections are waived if not raised c Investigative powers i Subpoena power 1 Two types of subpoena a Ad testificandum to compel a witness to testify b Duces tetum for books papers documents 2 No probable cause needed in order to issue subpoenas 3 Ways to quash the subpoena a Medical excuse Subpoena is not relevant Appearance would prejudice another case Flaw in the service Member of the armed forces Compliance would be unreasonable or oppressive ii Immunity power 1 No Fifth Amendment right once immunity is granted 2 Both use and derivative use immunity iii Contempt power iv Power to indict 1 Four major bases to quash the indictment must be raised or else they re waived except systematic racial exclusion a Insufficient evidence i Ie no probable cause to prosecute quot39gt PPP b Prosecutorial misconduct i Must show that but for the misconduct there would have been no indictment c Discriminatory exclusion d Variance from the indictment i 1e what was proved at trial was different than what was in the indictment d Rights of grand jury witnesses i No right to testify ii No right to Miranda wamings iii No right to counsel iv No right to confront or crossexamine witnesses V No exclusionary rule vi No rules of evidence e Rationale for grand jury secrecy i Prevent the escape of potential indictees ii Ensure freedom in deliberations iii Prevent tampering with witnesses iv Encourage disclosure of information from people who may know something v Protect the innocent accused who is exonerated through disclosure to the grand jury XVI Guilty Pleas a Overview i Guilty pleas are waivers of the Sixth Amendment right to a jury trial ii No contest does not establish civil liability iii Supreme Court since 1970 has shown general unwillingness to disturb guilty pleas it views as intelligent choices taken on advice of counsel iv FRCP 32 requires a fair and just reason to withdraw a guilty plea after it has been accepted v Remedy plea anew guilty plea may be withdrawn b Taking the plea judge or counsel must advise the D personally of i The nature of the charge 1 Must explain certain elements that are crucial e g intent in a murder charge ii The maximum penalty plus any mandatory minimum penalty iii That the D has a right to plead not guilty and demand a trial iv By pleading guilty he waives the right to a trial c Brady Trilogy general rule D may not withdraw guilty plea when the plea was the result of an intelligent choice among altematives on advice of counsel d Four good bases for attack on a guilty plea after sentencing i Plea was involuntary failure to meet constitutional standards for taking the plea ii Lack of jurisdiction to take the plea iii Ineffective assistance of counsel iv Failure to keep plea bargain 1 P is bound to the agreement or D entitled to specific performance 2 If D breaches he may be charged with the original offense XVII Right to a jury trial a Attaches any time the D is charged with an offense that has a maximum authorized sentence which exceeds six months b Number of jurors i Minimum is 6 and if 6 they must be unanimous ii No constitutional right to a unanimous 12person verdict c CrossSectional requirement i D has a right to have the jury pool re ect a cross section of the community 1 But not necessarily the jury chosen d Challenges to prospective jurors voir dire i For cause ii Peremptory 1 Cannot be used on account of race or gender 2 The party opposing the challenge must make out a prima facie case of racial discrimination a Then the person supporting the challenge must come forward with a raceneutral explanation e Free press and fair trial i Gag orders on press have been held unconstitutional 1 Three part test consider the a Nature and extent of pretrial news coverage b Whether other measures would be likely to mitigate the effects of unrestrained pretrial publicity and c How effectively a restraining order would operate to prevent the threatened danger ii Pretrial proceedings may be closed to the public 1 But access to trial itself may only be denied if the denial is necessitated by a compelling govemmental interest XVIII Double Jeopardy a When does it attach i In jury trial when the jury is sworn ii In judge trial when the first witness is sworn b What constitutes the same sovereign i State and locality are the same sovereign ii But separate states and states and the federal govemment are not the same sovereign c Exceptions permitting retrial by the same sovereign i Jury is unable to agree on a verdict ii Mistrials for manifest necessity e g D becomes ill during trial iii Retrial after a successful appeal iv Breach of an agreedupon plea bargain by the D d What constitutes the same offense i Two crimes do not constitute the same offense if each crime charged requires proof of an additional element that the other does not 1 E g manslaughter and hitandrun arising from the same incident ii Being put in jeopardy for a greater offense bars retrial for a lesser offense and ViceVersa l Eg robbery larceny assault XIX Entrapment a But for the police conduct there would have been no crime i Not the D would not have committed the crime but there would have been no crime at all b Two Views i Majority all statutory crimes imply the phrase unless entrapped 1 Jury determines entrapment at trial 2 D s predisposition to the crime can be fatal to the defense ii Minority focus on deterring bad police behavior 1 Judge determines whether entrapment occurred pretrial a Acts as an exclusionary rule 2 Police behavior not D s predisposition is the focus
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