The ABCs of: Criminal Procedure
Here is a collection of 26 important concepts, from A to Z, you need to know about Criminal Procedure for the bar exam:
A – Arrests: An arrest occurs when a person is taken into custody by law enforcement for the purpose of prosecution or interrogation. Probable cause is required, meaning there is a reasonable belief that the individual has committed a crime.
BONUS: A – Appeal: Appeals in criminal cases focus on claims of legal error, such as improper jury instructions, evidentiary rulings, or constitutional violations. To succeed, the appellant must generally demonstrate that the error was prejudicial and affected the trial's outcome. Harmless errors, which do not impact the verdict, will not result in reversal.
BONUS: A – Arrest Warrants: While a warrant is generally not required for public arrests, arrests in a suspect’s home require a warrant unless exigent circumstances or consent are present. Arrest warrants must be issued by a neutral magistrate and supported by probable cause.
B – Bail: A defendant has a right to be free from excessive bail under the Eighth Amendment. However, there is no absolute right to bail, and it may be denied if necessary to ensure the defendant's appearance or public safety.
BONUS: B – Burden: The concept of burden in criminal procedure encompasses both the burden of proof and the burden of persuasion. In criminal trials, the prosecution bears the burden of proof to establish the defendant's guilt beyond a reasonable doubt, ensuring a high standard of certainty before conviction. The burden of persuasion remains on the prosecution throughout the trial.
C – Custody: The Fifth Amendment’s Miranda protections apply only when a suspect is in custody. Custody is determined by whether a reasonable person would feel they were not free to leave under the circumstances.
BONUS: C – Confessions: Confessions are admissible only if they are voluntary and not coerced. Under the Fifth Amendment, involuntary confessions violate the Due Process Clause, while the Sixth Amendment prohibits deliberate elicitation of incriminating statements after the right to counsel has attached, unless waived.
D – Detention: Investigatory detentions (stop and frisks) require reasonable suspicion, which is less than probable cause but more than a mere hunch. The detention must be temporary and no longer than necessary to verify or dispel the officer’s suspicions.
BONUS: D – Double Jeopardy: The Fifth Amendment protects against being tried twice for the same offense. This includes multiple prosecutions and punishments for the same criminal act.
E – Exclusionary Rule: Evidence obtained in violation of the Constitution (e.g., Fourth, Fifth, or Sixth Amendments) is generally inadmissible in court. Exceptions include the good faith exception and inevitable discovery.
F – Fruit of the Poisonous Tree: Derivative evidence obtained from an unconstitutional search, seizure, or interrogation is inadmissible unless an exception applies, such as independent source or attenuation.
G – Grand Jury: The Fifth Amendment requires a grand jury indictment for federal felony charges. Grand jury proceedings are secret, and the defendant has no right to counsel or to present evidence during the proceedings.
BONUS: G – Government Conduct (State Action): The protections of the Fourth, Fifth, and Sixth Amendments apply only to actions by the government or its agents. Private individuals are generally not bound by these constitutional requirements unless they are acting under the direction or authority of the government. Fifth Amendment requires a grand jury indictment for federal felony charges. Grand jury proceedings are secret, and the defendant has no right to counsel or to present evidence during the proceedings.
H – Hot Pursuit: The hot pursuit exception to the Fourth Amendment allows police to enter a suspect’s home without a warrant when they are in immediate and continuous pursuit of a fleeing suspect. The pursuit must be for a serious offense, and the entry must be necessary to prevent the suspect’s escape or harm to others.
BONUS: H – Habeas Corpus: A writ of habeas corpus challenges the legality of a person’s detention. It is a crucial remedy for unlawful imprisonment, particularly in post–conviction settings.
I – Interrogation: Interrogation refers to express questioning or its functional equivalent, designed to elicit an incriminating response. Miranda warnings are required only when interrogation occurs while the suspect is in custody. The functional equivalent includes any words or actions by law enforcement that they should know are reasonably likely to elicit an incriminating response.
BONUS: I – Identification Procedures: Lineups, showups, and photo arrays must not be unnecessarily suggestive, as they could violate due process. The Sixth Amendment also requires counsel to be present at post–indictment lineups.
J – Judicial Warrant Requirement: Searches and seizures in most contexts require a warrant issued by a neutral magistrate based on probable cause, unless an exception applies (e.g., consent, exigent circumstances).
K – Knock and Announce: Police must knock, announce their presence, and wait a reasonable time before entering a home to execute a warrant, unless doing so would be dangerous or futile. Evidence obtained after a violation of the knock–and–announce rule is not subject to the exclusionary rule and is typically admissible in court. must knock, announce their presence, and wait a reasonable time before entering a home to execute a warrant, unless doing so would be dangerous or futile.
L – Lineups: A post–indictment lineup requires the presence of counsel under the Sixth Amendment. However, there is no right to counsel at pre–indictment identification procedures.
M – Miranda Warnings: Miranda rights are required when a suspect is in custody and subject to interrogation. Both custody and interrogation must be present for Miranda to apply. Custody occurs when a person is not free to leave, and interrogation refers to express questioning or its functional equivalent, designed to elicit an incriminating response.
N – Neutral and Detached Magistrate: A valid warrant must be issued by a magistrate who is neutral and detached from law enforcement activities.
O – Open Fields Doctrine: Under the Fourth Amendment, there is no reasonable expectation of privacy in open fields, even if fenced. Thus, law enforcement may search open fields without a warrant.
P – Plain View Doctrine: Evidence in plain view may be seized without a warrant if the officer is lawfully present, the incriminating nature of the evidence is immediately apparent, and the officer has lawful access.
BONUS: P – Particularity: A valid warrant must describe with particularity the place to be searched and the items to be seized. Particularity ensures that the search is not overly broad and prevents general searches that violate the Fourth Amendment. in plain view may be seized without a warrant if the officer is lawfully present, the incriminating nature of the evidence is immediately apparent, and the officer has lawful access.
BONUS: P – Public Safety Exception: Miranda warnings are not required when police interrogation is reasonably prompted by an immediate concern for public safety.
Q – Questioning: For Fifth Amendment purposes, questioning must stop if a suspect clearly and unequivocally invokes their right to remain silent or requests an attorney. For Sixth Amendment purposes, questioning must cease after formal charges if the suspect invokes their right to counsel, which is offense–specific.
R – Reasonable Suspicion: Reasonable suspicion is required for stops and frisks. It is based on specific, articulable facts that criminal activity is afoot.
BONUS: R – Right to Counsel: The right to counsel applies differently under the Fifth and Sixth Amendments. Under the Fifth Amendment, the right to counsel is invoked during custodial interrogation and protects against self–incrimination. It must be affirmatively invoked by the suspect. Under the Sixth Amendment, the right to counsel automatically attaches upon initiation of formal charges and applies to all critical stages of the prosecution, including post–indictment interrogations, regardless of whether the suspect has explicitly requested counsel.
S – Search Incident to Arrest: Police may conduct a search incident to a lawful arrest to ensure officer safety or prevent the destruction of evidence. This includes the area within the arrestee’s immediate control.
T – Terry Stop: A Terry stop is a brief detention for investigatory purposes based on reasonable suspicion of criminal activity. Officers may also frisk for weapons if there is reasonable suspicion the person is armed.
BONUS: T – Testimonial: The Fifth Amendment privilege against self–incrimination applies only to testimonial evidence, which is any communication that explicitly or implicitly relates a factual assertion or discloses information. Physical evidence, such as fingerprints or handwriting samples, is not protected. detention for investigatory purposes based on reasonable suspicion of criminal activity. Officers may also frisk for weapons if there is reasonable suspicion the person is armed.
U – Undercover Agents: Statements made to undercover agents or informants do not implicate Miranda rights under the Fifth Amendment, as there is no official custodial interrogation. However, the Sixth Amendment right to counsel differs. After formal charges have been filed, any deliberate elicitation of information by undercover agents regarding the charged offense violates the defendant’s Sixth Amendment rights. This distinction hinges on whether the right to counsel has attached (Sixth Amendment) or whether custodial interrogation is present (Fifth Amendment).
V – Voluntariness: Confessions must be voluntary and not coerced. Coercion violates the Due Process Clause, and involuntary confessions are inadmissible.
W – Warrantless Searches: Exceptions to the warrant requirement include consent, exigent circumstances, search incident to arrest, automobile exception, and plain view.
BONUS: W – Waiver: A waiver of constitutional rights, such as the right to counsel or the right against self–incrimination, must be made knowingly, voluntarily, and intelligently. For example, a suspect can waive Miranda rights by explicitly stating their intent to do so or through actions that indicate a clear and unequivocal waiver. to the warrant requirement include consent, exigent circumstances, search incident to arrest, automobile exception, and plain view.
X – Exigent Circumstances: Police may conduct a warrantless search when immediate action is necessary to prevent the destruction of evidence, protect public safety, or pursue a fleeing suspect.
Y – Young Offenders: Special protections apply to juveniles during interrogations, including the presence of a parent or guardian in some jurisdictions.
Z – Zones of Privacy: The Fourth Amendment protects areas where individuals have a reasonable expectation of privacy, such as homes, personal effects, and communications. This includes scenarios like being an overnight guest, as well as private spaces where one has been granted temporary or permanent access, unless an exception applies.
