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Criminal Procedure Cheat Sheet (DRAFT) by

This is a draft cheat sheet. It is a work in progress and is not finished yet.

Fourth Amendment

4th Amendment
prohibits unreas­onable searches and seizures
Government Conduct
Must show some government or police agency action
Defendant must have a reasonable expect­ation of privacy as to the places searched or items seized
Seizure of a Person
By means of physical force OR show of authority, a person’s freedom of movement is restra­ined; under the totality of circum­sta­nces, would a reasonable person not feel free to leave
Occurs when government conduct violates the defend­ant’s reasonable expect­ation of privacy

Seizure of a Person

generally requires a warrant; Warran­tless arrest allowed if an officer has probable cause to believe that a felony has been committed
Terry Stop and Frisk
Valid when an officer has reasonable suspicion that someone is engaged in criminal activity
Police Checkpoint
Valid if Done in a non-di­scr­imi­natory manner; and There is an automo­bil­e-r­elated reason for the checkpoint
Traffic Stop
Valid if the officer has reasonable suspicion or probable cause that a traffic law has been violated


Valid Search Warrant
A search conducted pursuant to a valid warrant is generally consti­tut­ional
Warrant Requir­ements
Be issued by a neutral magist­rate; Be based upon probable cause; and Describe with partic­ularity the places to be searched and the items to be seized
Execution of a Search Warrant
Knock and announce; Defective Warrant (good faith)
Exceptions to Warrant Requir­ement
Automobile Exception
If police have probable cause to believe a vehicle contains evidence of a crime, can search any part of the car believed to have contraband
Stop and Frisk
Can stop a person based on reasonable suspicion that the person is engaged in a criminal activity; Frisk—­officer can pat down the outer clothing of the defendant for officer safety (plain feel)
Terry "­Aut­omobile Frisk"
After valid stop if The officer has a reasonable belief there is a weapon in the car; and search is limited to those areas that may contain a weapon
Must be voluntary; cannot exceed scope
School, DUI, etc. Must have a clear plan
Plain View
Police are lawfully present; and Incrim­inating nature of the item is immedi­ately apparent
Exigent Circum­stances
Hot pursuit of a fleeing felon, Danger of destru­ction of evidence, or Police or public safety
Search Incident to Lawful Arrest
May search arrestee within a reasonable scope after a lawful arrest. Defendant and wingspan. can search areas within reach or where others may be hiding.

Exclus­ionary Rule

Excludes evidence obtained as a result of the govern­ment’s violation of the 4th Amendment
Fruits of the Poisonous Tree
excludes other evidence obtained as a result of the violation
inevitable discovery, indepe­ndent source doctrine, passage of time, good faith reliance

5th Amendment

Self Incrim­ination
no person shall be compelled in a criminal case to testify against himself; Applies to testim­onial evidence coercively obtained by police
Miranda warnings
Right to remain silent and right to an attorney
When give Miranda warnings
custody and interr­ogation
defendant reasonably believes he is not free to leave or is otherwise deprived of his freedom
police expressly question defendant OR police words or actions are likely to elicit an incrim­inating response
Waiver of Miranda rights
knowing and voluntary
Voluntary Statements
After a defendant receives Miranda warnings and does not invoke the right to remain silent, the defendant might decide to make an uncoerced statement to police. Consti­tutes a waiver
Invoking Miranda Rights
Right to counsel- unambi­guously assert; Remain silent- unambi­guously assert
Re-app­roa­ching the defendant
After invoking rights, police may not re-app­roach the defendant later. Except­ion—if there is a break in custody for 14 days or more, police may re-app­roach the defendant, give fresh Miranda warnings, and attempt to get a waiver
Defendant may only assert his own Miranda rights
Exclusion of Statements
Voluntary- not protected
Involu­ntary- inadmi­ssible
Second Confes­sion- May be admissible if initial confession was the result of a good faith mistake
Voluntary statement in violation of Miranda- admissible as impeac­hment but not substa­ntive
Physical evidence- Any physical fruits of a voluntary confession can be admissible evidence

6th Amendment

Right to Counsel
Automa­tically applies to all critical stages of prosec­ution after formal procee­dings begin
Formal procee­dings
indictment or formal charges
Offense Specific
does not prevent the police from questi­oning the defendant about other crimes that have not been formally charged
must be knowing and voluntary

Line-Ups under Due Process

Must not be conducted in a manner that is imperm­issibly suggestive or provides a substa­ntial likelihood of miside­nti­fic­ation
Photo array
neither defendant or lawyer has right to be present

Trial Consid­era­tions

Due process- Burden of Proof
Prosec­ution must prove all elements of the crime beyond a reasonable doubt
Any fact, other than a prior convic­tion, that is used to increase the sentence beyond the statutory maximum, must be charged and proved beyond a reasonable doubt

Double Jeopardy

Provides protection against:
Prosec­ution for the same offense after acquittal; Prosec­ution for the same offense after convic­tion; and Multiple punish­ments for the same offense
Same v. separate offenses
test)—each crime must require proof of an element that the other does not to be considered a separate offense
Prohibits multiple prosec­utions of greater and lesser­-in­cluded offenses
Permis­sible to charge a defendant with a greater and lesser­-in­cluded offense in the same action

Grand Jury

can consider illegally obtained evidence and hearsay
witnesses do not have right to counsel
no right to testify

Guilty Plea

guilty plea
waiver of various rights to trial
must knowingly and intell­igently waive rights
Informs the defendant of his rights and ensures the defendant unders­tands those rights; Informs the defendant of the possible sentences; Informs the defendant of immigr­ation conseq­uences (the judge is not required to inform the defendant of all collateral conseq­uences, such as difficulty getting student loans); Makes sure there is a factual basis for the plea; determines no use of force/ coercion/ threats/ promises

Speedy and Public Trial Rights

Speedy trial
SOL normally begins when crime occurs; Defendants can be injured by the passage of time between an alleged crime and their trial
Speedy Trial Claim Factors
length of delay, reason for delay, whether defendant asserted his rights, risk of prejudice
Public Trial
The Sixth Amendment and First Amendment, taken together, protect the rights of the defendant (Sixth) and the public (First) to attend public trials. Can close if substa­ntial likelihood of prejudice
Confro­ntation Clause
Right to confront witnesses against him
Crawford Doctrine
If statement is testim­onial, inadmi­ssible if declarant is unavai­lable and defendant had no prior opport­unity to cross-­examine
Bruton Doctrine
Defend­ant's statement is always admissible even if doesn't testify at trial

Cruel and Unusual Punishment

Length of Prison Sentences
The Supreme Court has given the government free rein to authorize virtually any length sentence for virtually any crime
No life with our parole for crimes committed while juvenile
Capital punishment
only available if victim of crime dies
defendant must be 18+ when committed crime, mentally sound
Capital punishment safeguards
including a bifurcated trial process, the opport­unity to present mitigating evidence, and a process that suffic­iently narrows the class of death-­sen­tence eligible offenses.
Cruel or unusual punishment
prohibited under 8th amendment; Courts have extended this protection to conditions of confin­ement