Ohio - Criminal Procedure MBE University of Akron
U of Akron alum
Uploaded to quizlet Sept 2016
https://quizlet.com/144264571/crim-pro-mbe-flash-cards/
Title - Arrests and Seizures
Burdens of Proof
Seizure - Rule
Seizure - Test
Types of Seizures
Stop and Frisk/Terry Stops
What is officer allowed to do
during Terry Stop?
Arrest
Warrant
Who issues a warrant
Burden in order to issue warrant
3 warrant requirements
7 Exceptions to warrant
requirement - ESCAPES
100 terms
crivero10
...
- Conviction - Beyond reasonable doubt
- Arrest - Probably cause (more likely than not)
- Stop - Reasonable Suspicion
officer intentionally terminates or restrains subject's freedom of
movement through use of physical force ro show of authority
Whether the reasonable person would feel free to disregard the
officer
Terry stops, traffic stops, arrests
officer must have reasonable suspicion, based on articulable
facts, to believe the suspect is or is about to be engaged in
criminal behavior.
pat down for weapons, but cannot search for evidence
if pat down reveals objects whose shape make their identity
obvious, officer can seize those objects
if probable cause develops during the Terry Stop officer can
make an arrest
requires probably cause to believe suspect committed crime
misdemeanor arrest - officer witnessed the crime
authorized an officer to arrest someone
neutral judicial officer and detached magistrate
probable cause that person committed the crime; warrant must
name the suspect
1. probable cause to believe items sought are fruits or evidence of
a crime
2.issued by neutral magistrate
3. describe place a property with particluarity
1. Exigent circumstances - Hot pursuit
2. Search incident to lawful arrest
3. Consent
4. Automobiles

Search incident to arrest - Rule
Search incident to arrest on the
street
Search incident to arrest at home
Arrest in car
Example of arrest and search of a
car
Exam tip
Inventory Search
Exam tip search and seizure
questions
Search definition
Places where we have an
expectation of privacy against
govt.
Places we do not have an
expectation of privacy
Fifth Amendment
Scope of 5th amendment privilege
Does 5th amendment protect
something said to 3rd party?
Statements made as result of
custodial interrogation
Custodial - definition
Interrogation - definition
5. Plain view
6. Evidence obtained from administrative searches
7. Stop and Frisk
lawful arrest permits officers to search arrested person and
immediate area for:
officer and public safety
prevent destruction of evidence
can search suspect and his wingspan
search suspect and immediate arrest area
search suspect and passenger compartment as long as suspect still
has access to vehicle at the time.
Cannot arrest suspect, cuff him, put him in the back of squad car,
and go search the car. Suspect is not a danger to officers
anymore; he cannot access a weapon from the car; he cannot
destroy evidence in the car.
Remember, search is proper if reasonable to believe that that
vehicle contains evidence of the offense of arrest.
police arrest a driver and impound the car, it may be searched for
inventory purposes.
step 1 - is there probable cause
step 2 - was search beyond scope of search incident to arrest?
Occurs when government conduct violates a reasonable
expectation of privacy.
1. Homes
2. Hotel Room
3. Offices
4. Backyard
5. Luggage
1. Public streets
2. Open fields
3. Garbage cans left out in street
4. Abandoned property
Self incrimination. No person shall be compelled to testify
against or incriminate himself.
natural persons (not corporations or unions)
testimonial evidence
incriminating
any proceeding as long as reason to believe future criminal
prosecution
No. If I tell my Pops I committed a crime, they can force them to
testify.
Inadmissible unless accompanied by procedural safeguards
(warnings). If not in custody, no warning is required.
arrested or detained (not free to leave)
any conduct likely to elicit or induce a response (does not include

Miranda Warning
Police returning to question same
suspect
Invoking the right to an attorney
Public safety Miranda exception
Title - Interrogation Rules
Confessions
Involuntary obtained statements
Miranda violation statements in
court
Voluntary Miranda violation
statements
Sixth Amendment Right
How to invoke sixth amendment
right
When does 6th amendment right
apply?
When does 6th amendment not
apply
Title - Identification procedures
Two kinds of ID procedures
Photo array
Pre-indictment lineup
Post-indictment lineup
Lineup evidence at trial
In court identification
Title - The Exclusionary Rule
and its Exceptions - Highly
tested
The Exclusionary Rule
The Exclusionary Rule -
Definition
Standing
routine booking questions
must be given prior to custodial interrogation
must ask if suspect understands rights
as long as substance of Miranda rights is communicated, it will
be sufficient
after substantial period of time, police can go back to the suspect,
give warnings again, and seek to talk to her.
not enough to say I think I should talk to someone - must say I
want a lawyer!
police do not have to give Miranda warnings if public safety is at
risk
...
must be voluntary - confession obtained by threat are not
admissible
However, confession can be based off deception
fruit of the poisonous tree - never admissible
inadmissible in prosecution's case in chief, but admissible for
impeachment purposes to challenge credibility of D
evidence obtained as a result of a voluntary statement taken in
violation of Miranda is admissible.
right to counsel
attaches automatically upon indictment, information, or other
formal charges - unless D knowingly and intelligently waives the
right
All felonies and all misdemeanors in which jail time is imposed.
All critical stages of prosecution
investigative lineups (pre indictiment), witness looking at photo
arrays, discretionary appeals and post conviction
...
line up and photo array
no right to be present, but police must turn array over to D
no right to counsel
right to counsel; if counsel not present, evidence is inadmissable
must not be impermissibly suggestive
...
...
illegally obtained evidence is inadmissible at the criminal trial of
the person whose rights were violated.
only applies at trial, not pre-trial proceedings
Evidence obtained in violation of the 4th, 5th, or 6th amendments
cannot be introduced at trial.
must be of D's rights - no one elses

Fruit of the poisonous tree
5 1/2 Exceptions to Exclusionary
Rule
Knock and Announce
Inevitable discovery
Attenuation in the causal chain
Good faith
Isolated Negligence
Overturning a conviction
Fifth Amendment Presentment
Clause
Indictment - Definition
Title - Grand Jury Proceeding
Hearsay
Exculpatory Evidence
Defendant appearance
Passengers in a car where driver is arrested without probably
cause are deemed to have been seized. They can challenge
constitutionality of the stop.
exclusionary rule also applies to all evidence obtained as a result
of the initial constitutional violation.
Example - Cops illegally search and find a key. They use the key
to open a safe box which leads them to more evidence. Key is
found in violation. Stuff inside the box is fruit of the poisonous
tree.
1. Knock and Announce
2. Inevitable Discovery
3. Independent Source
4. Attenuation in Causal Chain
5. Good faith
5 1/2. isolated Negligence by Law Enforcement
officer required to knock, announce, and request admission
if they burst in without knock/announcing, the evidence they find
will still be admissible
evidence would have been discovered anyway through lawful
means, is admissable
intervening events and the passage of time can remove the taint
officers who relied on existing law that was later declared
unconstitutional
officers relied on defective warrant (hidden defect)
- warrant cannot be obtained by fraud
- warrant not defective on its face
- magistrate did not wholly abandon his judicial role
isolated negligence by law enforcement personnel does not
trigger the exclusionary rule
Ex: someone thinking there was a warrant when there really
wasn't
use harmless error analysis - would keeping the evidence out
make a difference in the outcome?
Federal felony charges must be initiated by indictment unless D
waives indictment
claims there is probable cause to believe D committed the crime
...
grand jury can consider hearsay evidence
Prosecutors have not duty to present exculpatory evidence
D has no right to appear in front of the grand jury
Witnesses
Secret proceedings
unanimous
Eighth Amendment
When is Bail available?
Pretrial release conditions
Title - Guilty Pleas
Valid Guilty Pleas
Plea Allocution
Title - Trial Process
6th Amendment
Jury Sizes
Jury Selection
Speedy Trail Rights
Trial open to public
6th amendment confrontation
clause
Prosecutorial duties
Witnesses have no right to bring counsel with them to grand jury
room
Grand jury proceedings are held in secret
grand jury does not have to be unanimous
forbids excessive bail, but does not state bail is required
always unless D is flight risk or danger to community
there's a presumption in favor of release prior to trial and
presumption against release after conviction
court can impose pretrial release conditions
...
D intelligently and knowingly waive rights thorugh plea
allocution
Judge
informs D of rights and makes sure D understands those rights
informs D of possible sentences
Ensures there is factual basis for plea
Ensure plea was not made in exchange for anything or by use of
force or threat
D can challenge for involuntary waiver of rights f plea allocution
is not proper
...
right to jury trial - attaches when asked for and offense
punishable by MORE THAN 6 months in jail.
Federal - 12 - unanimous
States - 6 do not have to be unanimous
must be fair cross section of the community form which no
distinctive group is excluded
voir dire - cause or preemptory challenges can remove jurors
due process clause and speedy trial clause of 6th amendment
protect against delay
four factors to speedy trial claim
1. length of delay
2. reason for delay
3. whether defendant asserted right to speedy trial
4. prejudice to the defendant
must be open unless likelihood in prejudice or unfairness
right to confront witnesses against them and produce their own
witnesses
1. turn over exculpatory evidence
2. evidence that could be used to impeach state witness
3. Material evidence (could change the outcome)
4. May not knowingly present false testimony

Prosecutorial misconduct
Defense Counsel and 6th
amendment
Joint representation
Strickland test: effective assistance
of counsel
Choice of Counsel
Proceeding Pro Se
Title - Sentencing
3 primary issues in sentencing
8th amendment cruel and unusual
punishment - Capital Punishment
Double Jeopardy
Defining the same offense:
Blockburger Test
Double Jeopardy tricky situation
When does double jeopardy
attach?
5. May not contact defendant outside presence of his counsel
6. May not comment on D failure to testify
If it affects veridct, may require a mistrial or reversal of
conviction. Otherwise, only discipline.
guarantees defendants EFFECTIVE ASSISTANCE OF
COUNSEL
judge can choose to allow joint representation. Must warn D's of
conflict
Supreme Court has developed this test. 2 parts - Performance and
Prejudice
Performance - did defense counsel engage in objectively
reasonable conduct?
Prejudice - did deficient performance prejudice defendant? would
result had been different?
defendants who can afford retained counsel are entitled to the
counsel of their choice
entitled to waive the right to counsel and rep themselves - no
constitutional right to "back-up" lawyer
...
8th amendmet - Cruel and Unusual Punishment
5th amendment - Double Jeopardy
6th amendment - The Apprendi cases
crimes involving actual individual victim - imposed only in cases
in which victim dies
Cannot be imposed:
under 18 when crime committed
mentally retarded defendants
insane at the time of execution
protection against:
1. prosecution for same offense after acquittal
2. prosecution for same offense after conviction
3. multiple prosecutions or punishments for the same offense
each statutory provision requires proof of an element that the
other does not
different victims equal different offenses - Ex: killing two victims
with one shot
separate sovereign rule - two separate sovereigns can try D
separately (the U.S. and a state or two separate states).
when jury is sworn in, or in a bench trial when first witness is
sworn in.
Case end upon acquittal or reversal of conviction upon appeal.
 Prosecution cannot appeal.
Mistrial Two Kinds:
1. Manifest Necessity - Defendant can be retried (jury is
deadlocked or defense counsel misconduct

2. No manifest necessity - Defendant cannot be retried by that

jurisdiction (judge declares mistrial so he does not miss his plane)
Apprendi Doctrine - 6th D entitled to have jury decide, by proof beyond a reasonable
amendment doubt, all of the elements necessary to impose a particular
criminal punishment.