CRIM PRO SHORT OUTLINE & CHECKLIST

CHECKLIST

I. 4th Amendment
a. ARREST/DETENTION
b. SEARCH & SEIZURE

II. 5TH Amendment

a. SELF-INCRIMINATION
b. DOUBLE JEOPARDY

III. 6TH Amendment

a. COUNSEL
b. SPEEDY TRIAL
c. JURY TRIAL
d. CONFRONTATION

IV. EXCLUSIONARY RULE

a. APPLIES TO 4TH, 5TH, and 6th
b. SCOPE, LIMITATIONS, HARMLESS ERROR

V. 8TH AMENDMENT
a. CRUEL/UNUSUAL PUNISHMENT
b. PRISONER RIGHTS

VI. 14TH AMENDMENT

a. DUE PROCESS

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I. 4th Amendment
A. The 4th Amendment protects people from unreasonable searches and seizures. 4th Amendment is
applicable to the states via the 14th Amendment.

B. ARRESTS
i. An arrest occurs when the police take a person into custody against her will for purposes of
criminal prosecution and interrogation. It must be based on probable cause – facts/knowledge
sufficient for a reasonable person to believe the suspect has committed a crime.
ii. A warrant is not required to make an arrest in a public place.
iii. Arrest warrant allows police to arrest Δ in his home, but need search warrant to go into home of
a third party to find/arrest Δ

C. DETENTIONS (Terry Stops)

i. Stops of a Person
1. Police may detain a person for investigatory purposes without probable cause – as long
as police have a reasonable suspicion supported by articulable facts of criminal activity
– based on the totality of the circumstances.
2. If the police reasonably believe the suspect is armed and dangerous, they may also frisk
the detainee for weapons.
ii. Automobile Stops
1. The police may stop a car if they have at least reasonable suspicion that the law has
been violated.
a. Exception: Special law enforcement needs such as checkpoint roadblocks – as
long as it is neutrally applied and designed to solve a particular problem
related to automobiles and their mobility. IE: DUI checkpoints; border stops.
2. Pretextual stops are okay, as long as there is a valid traffic stop.
3. checkpoint general rule=need w/o individual suspicion, neutral articulable standard, if
autos-related to mobility, a checkpoint is non-custodial)
iii. Traffic Stops/Police Dogs
1. During routine traffic stops, a sniff is not a search so long as the police do not extend the
stop beyond the time needed to issue a ticket or conduct normal inquiries.

D. SEARCH & SEIZURE

i. In order for a defendant to assert a 4th amendment challenge he must show both government
conduct and reasonable expectation of privacy. Five step approach: (1) government conduct,
(2) reasonable expectation of privacy, (3) valid search warrant, (4) good faith reliance on invalid
search warrant, and (5) exceptions to warrant requirement.

ii. (1) Government Conduct

1. The 4th Amendment only protects against gvt conduct, which includes any publically paid
police, & any private individual acting at the direction of the police** (important).
2. Privately paid security guards are NOT gvt actors, unless deputized w/ the power to
arrest.

iii. (2) Reasonable Expectation of Privacy

1. To have standing under the 4th Amendment, a person must have a legitimate expectation
of privacy with respect to the place searched or the item seized. It is based on the
totality of the circumstances.
2. Automatic standing:

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a. Own or have a right to possession of the place searched, in your home, and
overnight guests of the owner of the place searched.
3. Sometimes standing-you own prop seized & have REP in area searched; W's purse?
4. No standing:
a. No standing to sue for search and seizure in violation of someone else's rights
b. No REP for anything that you hold out to the public everyday
c. The sound of your voice.
d. The style of your handwriting.
e. The paint on the outside of your car.
f. Bank account records.
g. Monitoring the location of your car on a public street or in your driveway.
(NOTE: fixing GPS tracking device on car is a search).
h. Anything that can be seen across the open fields.
i. Anything that can be seen from flying over in the public air space.
j. Luggage/Car odors.
k. Your garbage set out on the curb for collection.

iv. (3) Search Warrant

1. Generally, police must have a warrant before conducting a search unless it falls within
one of the exceptions identified below.
2. Requirements: A valid warrant requires that:
a. (1) it be issued based on an affidavit that shows probable cause – which is a fair
probability that contraband or evidence of a crime will be found in the area
searched.
b. (2) states with particularity the places to be searched and the things to be
seized, and
c. (3) issued by a neutral and detached magistrate.
3. Based on Informant Info:
a. If an officer’s affidavit or probable cause is based on informant information, its
sufficiency is determined by the totality of circumstances.
b. An informant’s reliability/credibility and basis of knowledge are all relevant
factors in making this determination.
c. Warrant can be based in part on anonymous informant tip, look for
corroboration
4. Execution of Warrant:
a. Warrants must be executed without unreasonable delay. Scope of search is
limited to what is rsbly necessary to discover the things described in the warrant
b. Officers must knock and announce their presence and wait a reasonable time
(unless futile or to prevent destruction of evidence).
5. Challenging a Warrant:
a. Δ must establish three thing to show a warrant is defective (rarely met):
i. (1) false statement in the officer’s affidavit,
ii. (2) intentionally or recklessly included the false statement, and
iii. (3) false statement was material in finding of probable cause.

v. (4) Good Faith Reliance on Invalid Warrant

1. The general rule is that an officer’s good faith reliance on a search warrant overcomes
defects with the probable cause or particularity requirements.
2. Exceptions:

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a. The affidavit underlying that warrant is so lacking in probable cause that no

reasonable police officer would have relied on it.
b. The affidavit underlying the warrant is so lacking in particularity that no
reasonable officer would have relied on it.
c. The police officer or prosecutor lied to or misled the magistrate when seeking
the warrant.
d. If the magistrate is biased, and therefore has wholly abandoned his or her
neutrality.

vi. (5) Exceptions to Warrant Requirement (THERE ARE 6 OF THEM)

1. (1) Search Incident to a Lawful Arrest

a. (1) The arrest must be lawful. If arrest is unlawful then the search is unlawful.
b. (2) The arrest and search must be contemporaneous in time and place.
c. (3) The search must be limited to the person and the person’s wingspan: the
areas in to which he can reach either to procure a weapon or to destroy
evidence.
d. Automobiles (Gant rule):
i. After making the arrest of a person, the police may search the interior of
the automobile ONLY if:
1. (1) The arrestee is unsecured and still may gain access to the
interior of the vehicle; OR
2. (2) The police reasonably believe that evidence of the offense
for which a person may be arrested may be found in the
vehicle.
ii. Community Caretaker Exception:
1. Justifies warrantless search if an officer faces an emergency that
threatens the health or safety of an individual or the public.

2. (2) Automobile Exception

a. If, prior to searching anything or anybody, the police have probable cause to
believe a vehicle contains fruits, instrumentalities or evidence of a crime, the
police may search the whole vehicle, including the trunk, and any container
that might reasonably contain the item for which the police had probable
cause to search, whether owned by driver or passengers
i. The probable cause can arise after the car has been stopped
ii. PC must arise before any actual search has occurred
b. If police only have probable cause to search a container in a car, they can only
search that container, not the whole car.

3. (3) Plain View

a. The police may make a warrantless seizure based on plain view when they
discover fruits, instrumentalities, or evidence of a crime if:
i. (1) are legitimately present on the premises;
ii. (2) see the evidence in plain view; and
iii. (3) they have probable cause - it is immediately apparent that the item
is fruits, instrumentalities, or evidence of a crime.

4. (4) Consent

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a. For consent to be valid, the consent must be voluntary and intelligent. Have to
have authority to consent. Police do NOT need to tell people they have a right
to withhold consent.
b. Police saying they have a warrant when they don’t always negates consent.
c. Third Party Consent:
i. If multiple people have equal rights to use/occupy property, either party
can consent to a warrantless search. If both present and one consents
but other does not, the one who does not consent controls
ii. If nonconsenting party is removed for reason unrelated to refusal (ex:
arrest), the police may search upon consent of other occupant

5. (5) Stop and Frisk

a. As noted above, an officer may stop a person with reasonable suspicion based
on articulable facts.
b. An officer may conduct a Terry “frisk” – a pat down of the outer clothing – of a
person if there is a reasonable belief that the person is armed and dangerous,
which also includes frisks of persons in automobiles after a stop, as well as any
compartment where weapon may be placed.
c. If the officer reasonably believes by “PLAIN FEEL” that something is a weapon or
contraband, it can be seized. Police cannot manipulate contours

6. (6) Evanescent Evidence, Hot Pursuit, and Special Needs Searches

a. Evanescent evidence is evidence that might disappear quickly if the police took
the time to get a warrant.
b. Hot pursuit of a fleeing felon. Rule of Thumb: if the police are not within 15
minutes behind the fleeing felon, it is not a valid hot pursuit exception. If truly
in hot pursuit, they can enter anyone’s home w/o warrant
i. Any evidence seen in plain view during pursuit will be admissible
c. Inventory searches: Before incarceration of an arrestee, the police may search
(1) the arrestee’s personal belongings and/or (2) the arrestee’s entire vehicle
d. Public School Searches
i. Public school children engaged in extra-curricular activities can be
randomly drug tested (any extracurricular qualifies, even dances)
ii. Warrantless searches of public school children’s affects, such as purses
and/or backpacks, is permissible to investigate violations of school rules
iii. A school search will be held to be reasonable only if:
1. It offers a moderate chance of finding evidence of wrongdoing;
2. The measures adopting to carry out the search are reasonably
related to the objectives of the search; and
3. The search is not excessively intrusive in light of the age/sex of
child and nature of infraction.
E. WIRETAPPING & EAVESDROPPING
i. All Wiretapping and Eavesdropping requires a warrant.
ii. Exceptions:
1. UNRELIABLE EAR - No challenge to a person who wears a wire – Everyone assumes the
risk that the person to whom he is speaking is wearing a wire and is an informer
2. UNINVITED EAR - A speaker has no Fourth Amendment right to privacy if she makes no
attempt to keep the conversation private

II. 5th Amendment

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A. SELF-INCRIMINATION:
i. The 5th Amendment, which is applicable to the states through the 14th Amendment, prohibits
compelled self-incrimination. Can be asserted in both civil and criminal proceedings. Must
assert privilege the first time the Q is asked or privilege is waived.

ii. Miranda Rights:

1. In order for an admission or confession to be admissible under the 5 th Amendment, a
person must have been read his Miranda rights as long as he (1) is in custody, and (2) is
being interrogated by the police(warnings don’t have to be verbatim)
a. You have a right to remain silent;
b. Anything you say can be used against you in court;
c. You have the right to an attorney; and
d. If you can’t afford an attorney, one will be appointed for you if you so desire.
2. Miranda doesn't apply where interrogation is by an informant who Δ does not know is
working for the police since w/o police questioning there's not coercive atmosphere for
the warnings to offset
3. Custody
a. In custody if, at the time of the interrogation, a rsbl person would not free to
leave based on an objective standard (look for “inherently coercive pressures”)
b. Objective standard - Cts examine whether situation presents the same
"inherently coercive pressures" as stationhouse questioning
4. Interrogation
a. Interrogation is defined as any conduct where the police knew or should have
known that they might elicit an incriminating response from the suspect
i. Not required for a spontaneous statement
ii. Be sure to specify which specific Q triggered Miranda rights
5. Waiver
a. Must be knowing, voluntary, and intelligent under the totality of the
circumstances.
b. Police have no duty to inform a Δ that an attorney is attempting to see him
c. Δ's ignorance of his atty's efforts has no bearing on whether waiver was made
6. Invocation of Right to Remain Silent
a. Must be explicit, unambiguous, and unequivocal. The police may reinitiate
questioning after the defendant has invoked the right to silence if:
i. (1) they wait a significant amount of time,
ii. (2)  is re-mirandized, AND
iii. (3) the questions are limited to a crime that was not subject of the
earlier questioning.
7. Invocation of Right to Counsel
a. Must be unambiguous, and all questioning must cease upon invocation unless
i. (1) waives right to counsel
ii. (2) counsel is given
iii. (3) the accused himself re-initiates the questioning, or
iv. (4) break in custody and 14 days have passed
b. Not Offense Specific – so NO questioning about unrelated crimes.
iii. Statements Obtained in Violation of Miranda:
1. Excluded under the exclusionary rule. However, the statements can still be used to
impeach Δ's credibility if they were given voluntarily

B. DOUBLE JEOPARDY:

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i. When Applicable:
1. Under the 5th Amendment, a person may not be retried for the same offense once
jeopardy attaches. Jeopardy attaches (1) in a jury trial once the jury is sworn in, and (2)
in a bench trial once the first witness is sworn.
2. Two crimes do NOT constitute the same offense if each crime requires proof of an
additional element that the other does not require. (proof of ABC and proof of ABD)
3. Attachment of jeopardy bars retrial for lesser included offenses, and vice versa (no retrial
for greater offense if jeopardy attaches for lesser offense).
a. Exception: If tried/convicted for battery and victim later dies, then you can be
prosecuted for murder
ii. Exceptions that permit retrial:
1. Hung jury, manifest necessity aborts first trial (Δ has medical emergency), after Δ has a
successful appeal unless the finding was insufficiency of the evidence, or upon breach of
an agreed upon plea bargain by Δ (can then reinstate original charges)
a. On retrial – a Δ may NOT be tried for a greater offense than that for which he
was convicted at the first trial
b. If Δ agrees to testify against a co-Δ as part of a plea, it's for both the first trial
and any subsequent trials
iii. Separate Sovereigns:
1. Double Jeopardy bars retrial for the same offense by the same sovereign. (IE: federal
and federal, or state and state). Thus, if Δ violates both a fed law and a state law, he can
be prosecuted under both the fed law and the state law separately without jeopardy
attaching.

C. The Fifth Amendment and Prosecutorial Conduct

i. It is unconstitutional for the prosecutor to make a negative comment on the defendant’s failure
to testify or on a defendant choosing to remain silent after being given the Miranda warnings.
1. Exception: The prosecutor can comment on the defendant’s failure to take the stand if
the comment is in response to defense counsel’s assertion that defendant was not
allowed to explain his side of the story.
ii. When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test
applies, where conviction will only be reversed on appeal if the government fails show beyond
a reasonable doubt that the error was harmless.

D. The Fifth Amendment privilege can be eliminated in Three Ways

i. Under grant of immunity.
ii. No possibility of incrimination.
iii. Waiver (must assert privilege FIRST time question is asked – or else waived for any subsequent
criminal proceedings).

III. 6th Amendment

A. COUNSEL:
i. The 6th Amendment guarantees the right to assistance of counsel at all critical stages of criminal
proceedings after formal charges have been filed.
ii. The right attaches to just about every type of judicial proceeding and interrogation, including
post-charge lineups or show ups, guilty pleas/sentencing, and appeals.
1. Exceptions (NO right to counsel):

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a. Blood sampling, taking handwriting samples, pre-charge lineups, photo

identifications, prelim hearings to determine PC to detain, parole/probation
revocation proceedings, and post-conviction proceedings.
iii. Offense Specific – the right to 6th Amendment counsel is offense specific – so the Δ may be
questioned about unrelated, uncharged crimes.
iv. Waiver – the right may be waived, as long as it is knowing, voluntary, and intelligent.
v. Ineffective assistance of counsel:
1. There must be deficient performance by counsel and, but for such deficiency, the result
of the proceeding would have been different.
2. Typically, such a claim can only be made out by specifying particular errors of trial
counsel.

B. SPEEDY TRIAL:
i. The 6th Amendment guarantees the right to a speedy trial, which his based on the totality of the
circumstances. Factors considered include:
1. Length of delay, reason for delay, whether Δ asserted his right (timely objection), and
prejudicial effect on defendant.
ii. This right attaches as soon as Δ is arrested or charged.

C. JURY TRIAL:
i. The 6th Amendment guarantees the right to a jury trial in cases involving serious crimes where
the penalty exceeds 6 months in jail.
ii. Jurors:
1. The minimum number of jurors permissible is six – in which case the verdict must be
unanimous.
2. There is no federally protected constitutional right to a unanimous twelve juror verdict.
The Supreme Court has approved the non-unanimous verdicts of 10-2 and 9-3 (but
would probably not uphold 8-4 vote).
3. Jury pool must reflect a fair cross-section of the community.
4. Peremptory challenges of jurors can never be based on race or gender.
iii. Guilty Pleas:
1. Guilty pleas must be voluntary and intelligent/knowing.
2. The judge must specifically address the Δ on the record and make clear:
a. (1) The nature of the charge
b. (2) The judge must tell the defendant the maximum authorized penalty and
any mandatory minimum penalty
c. (3) The judge must tell him that he has a right to plead not guilty and to
demand a trial
*judge must determine if Def plea is voluntary and intelligent
D. CONFRONTATION:
i. A Δ has a 6th Amendment right to confront all witnesses against him.
ii. The absence of face-to-face confrontation between the Δ and accuser does not violate the 6th
Amendment when preventing such confrontation serves an important public purpose and the
reliability of the witness’ testimony is otherwise assured – or if Δ is disruptive.
1. IE: child testimony in a sex abuse case.
iii. Co-Defendant Confession: generally excluded because of 6th amendment confrontation clause
1. In a joint trial, a co-defendant’s confession cannot be admitted against the Δ unless:
a. (1) Portions referring to the other Δ are redacted,
b. (2) the co-defendant takes the stand and is subject to cross-examination, OR

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c. (3) the confession of the co-defendant is used to rebut the Δ’s claims that his
confession was involuntary obtained.
iv. Prior testimonial evidence is inadmissible unless the declarant is unavailable and the DF had an
opportunity to cross-examine the declarant.

IV. Exclusionary Rule

A. SCOPE: The exclusionary rule is a judge-made doctrine that prohibits introduction of evidence obtained
in violation of a person’s 4th, 5th, or 6th Amendment rights. All unconstitutionally obtained evidence is
inadmissible at trial, as well as any further evidence obtained from the unconstitutionally obtained
evidence (the “Fruit of the Poisonous Tree”)
i. Exceptions to Fruit of the Poisonous Tree Doctrine:
1. Miranda Violations: Fruits derived from stmts in violation of Miranda unless bad faith
2. Independent Source: it had an independent source for that evidence, independent of
that original police illegality
3. Inevitable Discovery: the police would have inevitably discovered this evidence anyway
4. Intervening Act of Free Will by the defendant (IE: comes back to station to confess after
being released).

B. LIMITATIONS:
i. Certain Proceedings: The rule does NOT apply to grand jury proceedings, civil proceedings,
parole revocation proceedings, or evidence obtained contrary to state law (MUST be federal
law).
ii. Police Officer Good Faith Mistake: The rule does NOT apply if the police act in good faith on a
search or arrest warrant. (not applicable to Miranda)
iii. Violations of Knock and Announce: not available in violations of this rule in the execution of
search warrants
iv. Impeachment: illegally obtained evidence may be used to impeach Δ's credibility if the Δ takes
the stand (but NOT other witnesses’ credibility).

C. HARMLESS ERROR:
i. If illegal evidence is used to convict, the conviction will be upheld if the conviction would have
resulted despite the improper evidence
 Exclusionary rule does not apply to grand jury proceedings

V. 8th Amendment
A. The 8th Amendment prohibits cruel and unusual punishment. The court will look at whether the penalty
is grossly disproportionate to the seriousness of the offense.
B. Death Penalty:
i. Must Allow for Mitigating Facts: Any death penalty statute that does not give the defendant a
chance to present mitigating facts and circumstances is unconstitutional.
ii. No Automatic Categories: There can be no automatic category for imposition of the death
penalty.
iii. No Limiting of Mitigating Factors: The state may not by statute limit the mitigating factors; all
relevant mitigating evidence must be admissible or the statute is unconstitutional.
iv. Jury Determines Aggravating Factors: Only a jury – not a judge – may determine the
aggravating factors justifying imposition of the death penalty.
v. No imposition on mentally retarded, insane, or minors.

VI. 14th Amendment

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A. The 14th Amendment protects a defendant from violations of due process of law.

i. Failure to Disclose Exculpatory Information:

1. A prosecutor’s failure to disclose evidence, whether willful or inadvertent, violates the
Due Process Clause and may be grounds for reversal of a conviction.
2. A failure to disclose exculpatory information will constitute grounds for reversing a
conviction if:
a. (1) The evidence is favorable to the DF, and
b. (2) Prejudice has resulted, meaning there is a reasonable probability that the
result would have been different had the information been disclosed.
ii. Unnecessarily Suggestive ID Techniques:
1. Certain pretrial identification techniques are so unnecessarily suggestive and so
substantially likely to produce a misidentification that they deny due process of law.
2. The remedy for a denial of pretrial due process is to exclude the in-court identification,
unless the state can show that it had an adequate independent source for the
identification (most common: witness has adequate opportunity to observe).
VII. MISC NOTES
A. Fifth Amendment right to counsel vs. Sixth Amendment right to counsel
i. The Court-created Fifth Amendment right to counsel arises when a suspect invokes his Miranda
rights and requests an attorney.
1. The Fifth Amendment right to counsel is NOT offense specific and thus applies to the
entire process of custodial interrogation.
ii. Conversely, the Sixth Amendment right to counsel IS offense specific, so the attorney only need
be present for the actual offense that suspect is charged for.
1. BUT NOTE: When DF has not specifically requested counsel, and has only been
appointed counsel – police can come back and ask DF to waive his right to counsel and
ask him questions about the crime for which he was charged.

VIII. AREAS COMMONLY TESTED ON THE BAR

A. Exclusionary rule
i. Limits on exclusion
ii. Fruit of the poisonous tree doctrine
B. Search and seizure (most impt bar exam topic)
i. Exceptions
1. Search incident to arrest and/re Automobiles (Gant Rule)
2. Special needs searches
C. 5th Amendment
i. Miranda warnings
ii. Double jeopardy
D. 6th Amendment Right to Counsel
i. Pretrial ID
E. TRICK Qs - Hypos that mention "in plain view" where officer is not legitimately present

IX. AREAS RIPE FOR TESTING

A. Cop sees vehicle code violation and stops car. Driver and car reek of alcohol. Driver fails FSTs and is
arrested and put in patrol car. Cop then searches car and finds drugs and illegal handgun. Will items be
admissible at trial?
i. Yes b/c valid search incident to arrest
1. Man clearly secured (1st prong of Gant)
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2. Car and man reek of alcohol, so rsbl for cop to believe he may find additional evidence
(of alcohol) in the car (2nd prong of Gant)

B. Cops see vehicle code violation and stops car. Drugs and pipe accidentally fall out of driver's pocket
when he's getting license out. Cop tells driver to step out and that he's under arrest. Driver breaks free
and runs. 1 cop chases and 1 decides to search the car and find evidence of another crime in car. Is this
a valid search incident to arrest?
i. Yes
1. Arrestee is unsecured (was under arrest from moment told he was)
2. Not as clear under prong 2 of Gant

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