Probable Cause
What is a "Gerstein Hearing?"
Prompt judicial hearings after probable cause has been established
When is there no right to counsel?
There is no right to counsel in which a fine only sentence is given.
Defendants dangerousness, if provided by clear and convincing evidence is a reason to deny bail outright.
A magistrate that issues the warrant must be_________ and _______?
Detached, and neutral
If there a is an all minority jury and the defendant is white, does the defendant have the right to have at least one person of his ethnicity on the jury?
No, A Def has no right to have a jury trial in whole or in part of person of his own race.
Probable cause for a search warrant?
Fair probability that the specified items sought are evidence of criminal activity and those items are presently located at the specified place described in the search warrant application.
A Defendant must waive his right to counsel ______, ______, and _______?
Intelligently, knowingly, and voluntarily
2 prong test to determine ineffective assistance of counsel? An attorney must pay attention to any _______ _______.
1. Counsel performed deficiently
2. The deficiency prejudiced clients right to a fair trial.
Pay attention to mitigating factors.
True or False: A Warrantless arrest for a misdemeanor criminal offense are allowed.
True
True or false: Officers must tell a suspect that they are free to go before asking for consent to search the vehicle.
False
What is a "Brady Motion?"
A "Brady motion" is a pretrial request for special evidence which is material to the case. It must be turned over otherwise a violation of due process.
It is the states burden to prove whether the suspect waived his privilege against self incrimination and right to counsel. What 3 things must the police prove?
1. Must prove they gave miranda warning
2. must prove suspect understood the warning
3. must prove suspect intelligently, voluntairly, and knowingly waived rights.
The admissibility of statements obtained after the person in custody has decided to remain silent depends under miranda whether his right to counsel was __________ ________.
"scrupulously honored"
What is the particularity requirement?
search warrants need to describe the things to be seized, the place to be searched and the persons or things to be seized.
If police reasonably believe that a person has common authority but they do not and they consent to a search the court may ___________.
Uphold the search.
If during a frisk, an officer feels a ________ or ________ they may seize it. No ____________ is allowed. It must be __________ _________.
1. weapon
2. Contraband
3. Manipulation
4. Readily apparent
No reasonable expectation of privacy when 1. _______ 2. _______ 3._________ 4.________
1. When you consent
2. When you expose to the public
3. Plain view
4. Plain smell
What are the 4 things you can do if your client wants to lie on the stand and commit perjury?
1. Withdraw
2. treat as a hostile witness
3. Impeach his testimony
4. Go on record and tell the court that you advised him not to take the stand.
True or False: Drug testing for pregnant women is unconstitutional.
True
What are the three factors that determine reasonable suspicion to indicate wrong doing for a stop and frisk?
1. nervous evasive behavior
2. High crime area
3. 1 and 2 coupled with flight, but flight alone will not suffice.
If officer after questioning believes suspect is _________ and _____ _________ the officer may frisk his ________ ________ or ________ _______ where suspect was sitting
1. Armed
2. Presently Dangerous
3. Outer clothing
4. Car Interior
What is the public safety exception?
Statements made by an arrestee before miranda given admissible to protect the public.
What is the exception to the exclusionary rule?
unconstitutionally obtained evidence may be admitted if independent line of search finds the evidence.
Ex: Search party finds evidence
Inevitable discovery doctrine: Evidence inevitably would have been discovered.
7 out of 10 Arrest in Home exceptions
1. Exigent Circumstance
2. Consent
3. Hot pursuit
4. Insufficient time to get warrant
5. Emergency Aid
6. Admin search
7. Probable Cause
8. Regulated business
9. Government property
10. Violation of protective order
If an arrest is made based on an unconstitutional statute, and the officer reasonably believes that statute was valid the evidence may be __________.
Admissible.