Criminal Procedure Outline for the California Bar Exam


  1. Exclusionary Rule

    1. Rule: Prohibits introduction of evidence obtained in violation of a federal statute or constitutional rights. (4th, 5th, 6th A rights) against victim of illegal search or coerced confession

      1. Inapplicable to grand juries (grand jury W may be compelled to testify based on illegal evidence), civil cases, and parole hearings.

    2. Exceptions (ER does not apply)

      1. Good faith defense: police relied in good faith on

        1. Judicial opinion later changed,

        2. Statute later held unconstitutional, or

        3. Defective search warrant, unless

          1. underlying affidavit lacks PC such that a reasonable PO would not have relied on it,

          2. warrant facially defective,

            1. Failure to particularly state thing to be seized and place to be searched.

          3. PO lied to or misled the magistrate, or

          4. magistrate abandoned role

      2. Admissible to impeach D’s trial testimony. (NOT testimony of other defense witnesses)

    3. Harmless or reversible error – if illegal E admitted, resulting conviction should be overturned unless govt can show beyond a reasonable doubt that the error was harmless.

      1. A conviction will not necessarily be overturned b/c improperly obtained evidence was admitted at trial

      2. Conviction on appeal will be upheld if the conviction would have resulted despite improper evidence

      3. Note – test never applies to denial of right to counsel at trial – error is never harmless

    4. Fruit of the poisonous tree: all E derived from the illegally obtained E must be excluded

      1. Exceptions:

        1. Independent source – E obtained from a source independent of the original illegality.

        2. Inevitable discovery – police would’ve discovered E whether or not police acted unconstitutionally.

        3. Intervening act of free will by D.

        4. Violations of the knock and announce rule

  2. 4th AmendmentSearch and Seizure –– ppl should be “free from unreasonable searches and seizures” (applies to states under 14th A)

    1. State action – police/govt or ppl directed by them.

    2. Seizure – When a reasonable person feels not free to leave or terminate encounter w/ govt.

      1. Arrestswhen police take s/o into custody against their will for crim prosecution or interrogation – must be based on probable cause

        1. Probable Cause – trustworthy facts/knowledge sufficient for a reas. person to believe that the suspect has committed/ing a crime

        2. Public placesPC required

          1. Warrant not req’d in public place.

        3. In HomeArrest warrant required unless hot pursuit or EE.

      2. Investigative Terry Detentions (stop and frisk) – police have authority to briefly detain a person even if they lack probable cause to arrest if they have reasonable suspicion supported by articulable facts of criminal activity. If PO has reasonable suspicion that detainee is armed, can frisk.

        1. Whether the police have reasonable suspicion depends on the totality of the circumstances

      3. Other detentions

        1. Automobile stops – PO may not stop a car unless reasonable suspicion to believe law has been violated (no probable cause req.)

          1. May stop car in violation of a traffic law.

          2. May not single out particular cars.

          3. Checkpoints ok.

          4. Dogs – 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

          5. Can search passenger compartment for weapons

          6. Passengers – have NO standing – No REP

        2. Station House Detention – PO must have full probably cause to bring suspect to station for interrogation/fingerprinting.

          1. BUT D can always come voluntarily

        3. Grand Jury appearance – No violation.

        4. Deadly Force – May not be used to seize non-dangerous felon.

    3. Approach to 4th A (search & seizure)

      1. Was the search or seizure by a govt agent?

        1. Govt agent – publicly paid police on or off duty or private individual action under direction of police

        2. Not govt conduct – privately paid security guard unless deputized w/ power to arrest.

      2. Did search violate D’s reasonable expectation of privacy? (Standing)

        1. Standing – if D has no standing to object to validity of search → no REP

            1. Automatic standing

              1. D owned place searched

              2. D lives at place searched (even if doesn’t own)

              3. Overnight guest

            2. D sometimes has standing

              1. Ownership of prop seized – only if reasonable expectation of privacy in the item or the area searched

              2. Legitimately present when search took place.

            3. No REP in things held out to the public

              1. Sound of voice

              2. Style of handwriting

              3. Paint on outside of car

              4. Account records held by bank

              5. Monitoring the location of car on a public street or driveway (GPS ok)

              6. Anything seen across open fields

              7. Anything seen from flying over public airspace

              8. Odor emanating from luggage

              9. Garbage left at curb for collection

              10. Areas outside home and related buildings (“curtilage”), such as barn

      3. Did police have a Search Warrant?

        1. If yes→ test validity;

          1. Valid search warrant requires:

            1. Issued by neutral and detached magistrate (not state attorney general)

            2. Based on probable cause, AND

              1. A fair probability that contraband or ev of a crime will be found in area searched

              2. Note: tip from anonymous informant ok as long as have PC from totality of the circumstances (consider reliability and basis of knowledge) – cannot be wholly based on anon tip

            3. Describes with particularity place to be searched and items to be seized

            4. Supported by Affidavit

              1. Invalid Affidavit if:

                1. A false statement was included

                2. The affiant intentionally or recklessly included the false statement

                3. The false statement was material to the finding of probable cause

          2. If warrant invalid, does good faith defense apply?

            1. E obtained by PO in reasonable reliance on facially valid warrant may be used by P.

              1. Exceptions: affidavit was so lacking in probable cause or particularity that no reasonable police officer would have relied on it, police lied or misled the magistrate, or the magistrate is biased

          3. Was the warrant properly executed?

            1. Without unreasonable delay

            2. After knock and announcement (unless exigent circumstances – would be dangerous, futile, inhibit investigation, destroy ev)

            3. Person or place searched or seized w/in scope of warrant

              1. A valid warrant allows PO to detain occupants not named, but not to search them

        2. If no→ was the search within a warrantless search exception?

          1. Search incident to lawful arrest

            1. Scope = person and his wingspan – where D could procure a weapon or destroy ev

            2. Search must be contemporaneous in time & place w/arrest

            3. PO can make protective sweep beyond wingspan if believe accomplices may be present

            4. If lawfully arrested in car, police may search the interior of the car ONLY IF:

              1. The arrestee is unsecured and still may gain access to the interior of the car, or

              2. The police reasonably believe that evidence of the offense for which the person was arrested may be found in the car

                1. Note – can also search passengers belongings

            5. Automobile Exception – if PO has PC to believe the car contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container inside that might reasonably contain the item for which they had PC to search – OR if car itself is contraband can seize from pub place

            6. NOTE – if car is impounded pursuant to normal police procedure, police may make an inventory of its contents

            7. Community Caretaker Exception– justifies a warrantless search if the officer faces an emergency that threatens the health and safety of an individual or the public (gun lying on seat and window down)

          2. Plain View – PO sees contraband item in plain view while legitimately on premises

            1. It must be immediately apparent (probable cause to believe) that the item is contraband or a fruit of a crime

          3. Consentvoluntary and intelligent consent

            1. Scope of search limited by scope of consent

            2. Authority to consent: when 2 or more ppl have equal right to use a piece of prop, anyone of them can consent to its warrantless search, but if both are present and one denies consent, police cannot search

            3. Third Party Must have Apparent Consent

          4. Stop and Frisk – PO may

            1. Stop w/o PC if he has articulable and reasonable suspicion of criminal activity (belief that criminal activity is afoot)

            2. Frisk if PO has reasonable belief that person may be armed and dangerous

              1. Scope = pat down of outer clothing

                1. But, may reach into clothing w/o frisk if have info that weapon is hidden

                2. PO may conduct a frisk and search passenger compartment of car when reasonable belief occupant is dangerous (no trunk)

            3. Items are admissible if seems like weapon/contraband from outside or based on its plain feel.

          5. Hot pursuit – PO chasing a fleeing felon may make a warrantless S&S and can follow suspect into a private dwelling

            1. Police must be at least 15 minutes behind felon

            2. Once PO enter on hot pursuit, no limitations (no geographic scope)

            3. No contemporaneous req., no scope limitations

          6. Evanescent Evidence – E that can disappear b4 a warrant is obtained may be seized w/o a warrant; ev is fleeting (ev under fingernails, blood sample)

          7. Exigent Circumstances – police may enter premises w/o a warrant to address emergencies that could affect health or safety

          8. Police Checkpoint – roadblocks must (1) stop cars on the basis of some neutral, articulable standard (e.g. every car or every third car); and (2) be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility.

            1. May not set up a roadblock to check cars for illegal drugs since the purpose is to detect evidence of ordinary criminal wrongdoing unrelated to use of cars or highway safety

    4. Non-investigatory searches – 4th Amendment Balancing.

      1. Test: privacy interests v. government interests.

      2. Body searches – balance society’s need vs. magnitude of intrusion

      3. Search incident to incarceration pursuant to routine.

      4. Parolees and their homes

      5. Regulatory Searches.

        1. School searches.

          1. Kids engaged in extracurricular activities can be randomly drug tested

          2. Personal student property may be searched to investigate violations of school rules

          3. Search reasonable if :

            1. Suspicion of illegality or violation of school rule

            2. Measures adopted are reasonably related to the objectives of the search

            3. Search is not excessively intrusive

        2. Highly regulated industries (i.e. railroad)

          1. Drug tests allowed of railroad employees

          2. Can search for contaminated food

        3. Airline passengers.

        4. Government employees (desks and file cabinets where work-related conduct may be)

          1. Can implement drug tests for persons seeking customs jobs

        5. Immigration Enforcement Actions – may do factory survey

      6. Foreign countries and border searches.

        1. At Border – can search everyone

        2. Interior Border Checks – may stop and search even w/o reasonable suspicion

        3. Foreign Countries – 4th does not apply

        4. International Mail – can be opened if reas. belief contains contra

      7. Wiretapping and eavesdropping – constitutes a search under the 4th

        1. Warrant required.

        2. Exception: a speaker has no 4th A claim if he makes no attempt to keep a conversation private; speaker assumes risk that person he is talking to is an informer.

        3. Pen registers (devices that record phone #’s dialed) – require judicial approval b/4 use.

  3. 5th Amendment5th A privilege against compelled self incrimination.

    1. Protects only compelled testimonial evidence.

    2. Miranda Warnings

      1. Warnings – right to remain silent, anything you say can be used against you in court, you have a right to an attorney, and if you can’t afford an attorney, one will be appointed for you if you so desire

      2. Required if D is inCustodyand underInterrogation

        1. Custody – person not free to leave at time of interrogation (does not apply to voluntary detention, traffic stops, or probation interviews).

        2. Interrogation – any conduct/questions where PO knew/should have known would elicit an incriminating statement;

          1. Miranda does not apply to spontaneous statements, but PO must give warning b/4 follow up questions asked.

          2. Generally warnings are necessary only if detainee knows that he is being interrogated by a govt. agent

      3. Waiver – must be knowing, voluntary, and intelligent

        1. No waiver thru silence or shrugging shoulders

        2. Crts will employ a totality of the circumstances test

        3. Govt. must show by a preponderance of the evidence that the waiver was knowingly, voluntary, and intelligent

      4. D’s right to terminate interrogation:

        1. Right to remain silent – If D asserts Miranda right to remain silent through explicit, unambiguous, and unequivocal statement – police may not continue to ask questions about crime, PO may question re other crimes.

          1. May reinitiate questioning if officers wait a significant amount of time, D is re-Mirandized, and the question are limited to a crime that was NOT the subject of the earlier questioning

        2. Right to Counsel – ONLY arises when after hearing warnings, D says “I want a lawyer” – If D unambiguously indicates that he wishes to speak to counsel ALL Qs must cease until counsel provided (D’s 5th A right to counsel – D claims he wants L after hearing Miranda warnings)

          1. NOT offense specific – PO cannot reinitiate questioning re: any matter (cannot Q re other crimes)

          2. Once D asserts right to terminate and request for L, the reinitiation of interrogation by PO w/o L present violates D’s 5th A right to counsel.

          3. UNLESS:

            1. D later waives right to counsel by reinitiating questioning

            2. D is released from custodial interrogation and 14 days have passed since release

      5. Effect of violation: E obtained is inadmissible, BUT may be used to impeach & use subsequent confessions

      6. Public safety exception: Interrogation w/o Miranda ok when public safety involved.

    3. Double Jeopardy – under 5th A, s/o cannot be retried for same offense once jeopardy has attached.

      1. Jeopardy attaches in jury (when the jury is empanelled and sworn) and bench (when 1st W is sworn);

        1. NOT grand juries

        2. Jeopardy does NOT attach when proceeding is civil.

      2. Exceptions permitting retrial even if jeopardy attachedhung jury, manifest necessity (D must terminate), retrial after appeal (but D may not be retried for greater offense and cannot get death penalty if jury found it was inappropriate in 1st trial), breach of plea bargain by D.

      3. Same offense – not if each crime requires proof of an additional element that the other does not.

      4. Greater and Lesser included offenses – retrial is barred for lesser/greater offenses, except for murder when V dies after attachment of jeopardy for battery;

        1. New evidence exception to DJ bar if unlawful conduct later used to prove greater offense (1) hasn’t occurred at time or prosecution for lesser, or (2) hasn’t been discovered despite due diligence.

      5. Separate sovereigns – may try D for the same crime (i.e. state and locality are same sovereign; state and fed govt not same sovereign)

    4. 5th A Privilege against self-incrimination

      1. Who? Can be invoked by anyone in any kind of case if asked a Q which may incriminate them;Does not apply to corps.

      2. When?

        1. If asked a Q that may incriminate, must assert 5th A privilege the first time asked that Q or will have waived the privilege for all subsequent crim prosecution (priv. must be claimed in civil proceeding to prevent statement from being used in later crim proceeding)

      3. ScopeProtects only compelled testimonial or communicative evidence, NOT real/physical evidence.

        1. Prevents govt from making D give lie detector test or undergo custodial interrogations, but does not prevent from giving hair, voice, blood, or handwriting samples

        2. Original statement must be compelled.

        3. Can be compelled to give name at T-stop

      4. NO 5th Amend Privilege if (privilege can be eliminated by):

        1. Grant of immunity – use and derivative use.

          1. If granted immunity from prosecution, W may be compelled to answer.

          2. Immunized testimony or anything derived from it may not be used to convict

        2. No possibility of incrimination (i.e SOL on crime has passed)

        3. Waiver if not asserted the 1st time asked or D takes the stand (and discloses incriminating info)

    5. Prosecutorial Misconduct

      1. Prosecutor cannot make a negative comment on D’s failure to testify or on a D’s choosing to remain silent

        1. Exception – P can comment if D’s counsel asserts that D was not allowed to explain his side of the story

      2. Harmless Error Test applies

  4. 6th Amendment

    1. Right to Counsel – all other times D gets a L invokes 6th A right to counsel

      1. Attaches after formal charges filed.

      2. Right to counsel at allcritical stages of prosecution.

        1. Required whenever jail sentence is imposed.

        2. Violation at trial – reversal; pre-trial – harmless error.

        3. Waiver – if knowingly and intelligently made.

        4. Offense specific – PO may not question outside the presence of counsel re: specific offense (L must be present only when D interrogated re L’s case)

          1. If 2 charges against D and D wants counsel→ 2 separate requests req’d.

      3. Pre-trial identification:

        1. Can be attacked on 2 grounds: (1) denial of right to counsel, or (2) denial of due process

        2. Right to have counsel present at post charge line-ups, show-ups, and at sentencing

        3. No right to counsel at photo identifications, when PO takes physical evidence (blood, handwriting), probation revocation proceedings, brief recess during D’s testimony at trial, pre-charge line ups.

        4. Remedy: if id unconstitutional → excluded

          1. Exception: independent source (indep of bad line up); i.e. ample opp to look at D at time of crime.

        5. 14th Amendment – Denial of due process if identification is unnecessarily suggestive + substantial likelihood of misidentification

      4. Effective assistance of counsel (generally presumed)

        1. Ineffective assistance claimant must show:

          1. Deficient performance AND

          2. But-for the deficiency, the result would have been different.

        2. Must point out specific deficiencies

        3. Not ineffective assistance: trial tactics, rejection of D’s request for continuance

        4. Right to Self-Representation – D can defend himself so long as his waiver of trial counsel is knowing and intelligent and he is competent to proceed pro se (no such right on appeal)

    2. Right to a Speedy Trial

      1. Test: Totality of the circumstances.

      2. Attaches: After D has been arrested or charged with a crime.

    3. Right to a Jury Trial – only for serious offenses

      1. Serious offenses (max authorized sentence exceeds six months)

        1. Criminal Contempt = sum of the sentences exceed 6 months

        2. Civil contempt – no right to jury trial

        3. Probation – can be placed on it for 5 yrs w/o jury trial

      2. Min # of jurors = 6 (if 6, must be unanimous)

      3. Cross sectional requirement – right to have jury pool represent a fair cross-section of the comm.

        1. Violation – D has to show under-representation of a distinct and numerically significant grp in venire

      4. Peremptory challenges – cannot be based on race/gender

      5. Guilty Pleas – waiver of 6th A right to jury trial

        1. Judge must advise D personally on the record re: nature of the charge, max possible penalty, right not to plead guilty (right to jury), and pleading guilty = waiver of right to trial

        2. SC’s contract theory of plea bargaining→ terms revealed in record and both sides held to bargain.

        3. Waiver must be intelligently and voluntarily made.

        4. SC won’t disturb guilty pleas after sentence;

          1. Permissible withdraw of guilty plea after sentencing: lack of jxd, plea involuntary, ineffective assistance of counsel, failure of the prosecutor to keep an agreed upon plea bargain

        5. Remedy for failure to meet stds: w/d of the plea & pleading anew.

      6. Right to impartial jury

        1. Death Penalty – Juror’s view must not prevent or impair ability to perform duties as juror.

      7. Right to have jury give evidence reasonable consideration

        1. Due process violated if: trial conducted in manner unlikely that jury gave E reasonable consid, state compels D to stand trial in prison clothing, jury exposure influence favorable to prosecution.

    4. Right to confront adverse witnesses

      1. Observe demeanor and c-x

      2. Not absolute if – disruptive D, public purpose, co- D’s confessions.

        1. Does not violate when preventing such confrontation serves an important public purpose and the reliability of the W’s testimony is otherwise assured (i.e. insulating child from trauma of testifying)

      3. Co-D’s confession: if 2 ppl tried together and one’s confession implicates other, right of confrontation prohibits use of that statement, unless:

        1. All portions referring to other D can be eliminated;

        2. Confessing D takes the stand and subject to cross-x; or

        3. Confession of nontestifying D used to rebut D’s claim that his confession was obtained coercively.

      4. Confrontation Clause – prior testimonial statement of unavailable W is inadmissible unless D had an opportunity to cross-examine W at the time the statement was made

        1. Exception – forfeiture by wrongdoing

  5. 8th Amendment – Prohibits Cruel and Unusual Punishment

    1. Punishment proportional to offense.

    2. Death Penalty:

      1. Not inherently violative of 8th Amendment.

      2. D must be allowed to present mitigating facts and circumstances (If DP statute does not give D this chance → unconst)

      3. Jury must be allowed to consider all relevant mitigating evidence (state may not limit mitigating factors)

      4. Categorical imposition of death penalty by statute is unconstitutional.

      5. Only jury may determine the aggravating factors justifying DP, not judge

      6. Jury may consider impact on family of victim.

      7. May NOT be imposed on mentally retarded and minors (<16)

      8. Must be sane at time of execution (not when crime committed)

      9. Cannot be imposed for raping an adult woman or for felony murder unless felony murderer’s participation was major.

  6. 14th Amendment

    1. Confessions must be voluntarily made under totality of circumstances.

      1. Involuntary if official compulsion.

      2. Harmless error test applies if involuntary confession admitted.

    2. Pre-trial Identifications – violates due process if unnecessarily suggestive and there is substantial likelihood of misidentification.

    3. Burden of Proof – the P bears the burden of proving each element of the case beyond a reasonable doubt

    4. Right to an unbiased judge – no finance interest in outcome, no malice toward D

  7. Pretrial Process

    1. Bail – immediately appealable, preventative detention allowed.

      1. Bail can be set no higher than necessary to assure D’s appearance at trial.

      2. Can be held w/o bail if pose danger or fail to appear at trial.

    2. Grand Juries

      1. States do NOT have to use GJ as part of charging process.

      2. Secrecy allowed.

      3. D has no right to notice that GJ is considering indictment;

      4. No Miranda warnings, no right to be present and confront witnesses, or have counsel present.

      5. No right to have evidence excluded or to introduce E

      6. No right to challenge subpoena.

      7. Racial discrimination reversible error.

    3. Duty to disclose exculpatory evidence

      1. Govt has duty to disclose material, exculpatory E, otherwise violation of due process and grounds for reversing conviction if D can prove: (1) E is favorable to him and (2) prejudice has resulted (i.e. reasonable prob that result would’ve been diff)

    4. Notice of alibi or intent to use insanity defense – must notify P.

  8. Sentencing

    1. Right to counsel during sentencing (6th amendment)

    2. May be based on hearsay and uncross-examined reports.

    3. If greater punishment imposed on D reconvicted after successful appeal, judge must put in record reasons for the harsher sentence.

  9. Collateral Attacks Upon Conviction – Habeas Corpus

    1. After appeal no longer avail or unsuccessful, D may attack collaterally.

    2. D has burden to show by preponderance of evidence that the detention is unlawful – State may appeal grant of writ of habeas corpus or retry.

  10. Prisoner Rights

    1. Due process, Right to access courts, 1st Amend Rt limited by RB test, Right to adequate medical treatment.

    2. No 4th A protection – No reasonable expectation of privacy in prison cells

    3. 1st A rights – prisoners 1st A rights of freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests (i.e. running a safe and secure prison).

    4. Incoming mail can be regulated, not outgoing

  11. Juvenile Court Proceedings

    1. Right to: written notice of charges, assist of counsel, opp to confront Ws, right not to testify, right to have guilt est. by proof beyond RD, No right to: jury trial

  12. Forfeiture Actions – quasi-criminal: (1) Personal Prop – not entitled to pre-notice/hearing b4 prop is seized – hearing req. b4 final forfeiture; (2) Real Prop – pre-notice/hearing req. b4 seizure

    1. 8th A – applies to penal forfeitures – cannot be grossly disproportionate

    2. No Protection for “Innocent Owner” req. if he voluntary entrusted prop

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