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87 Cards in this Set
- Front
- Back
fourth amendment
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prohibition against unreasonable search and seizure
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Fruit of the poisonous tree doctrine
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All evidence obtained or derived from exploitation of illegaly obtained evidence
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Exception to the scope of the fruit of the poisonous tree doctrine
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Does not apply where police illegality is a violation of knock and announce rule
- evidence can be admitted |
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fifth amendment
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1. privilege against self-incrimination
2. prohibition against double jeopardy |
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sixth amendment
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1. right to a speedy trial
2. right to a trial by jury 3. right to confront witness 4. right to an attorney |
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eighth amendment
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prohibition against cruel and unusual punishment
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Harmless error test
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- A conviction can be upheld if the conviction would have resulted despite the improper evidence
- govt. must show harmless beyond a reasonable doubt |
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exclusionary rule
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the product of the illegal search or coerced statement is excluded from criminal prosecution
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What constitutes a seizure of the person
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- When a reasonable person would believe that he is not free to leave
- Requires a physical application of force or a submission to threat of force |
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An arrest must be based on
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Probable cause
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breaking the chain of the fruit of the poisonous tree doctrine
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1. independent source for that evidence
2. inevitable discovery 3. intervening act of free will of the defendant |
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Effect of an invalid arrest on subsequent criminal prosecution
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By itself, no impact; look for fruit of the poisonous tree
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result of improperly obtained evidence admitted at trial
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appellate court will apply the harmless error test
conviction will be upheld if the conviction would have resulted despite the improper evidence |
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Source of reasonable suspicion
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Need not arise from officer's personal knowledge
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Informant's tip as basis for reasonable suspicion
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Must be accompanied by indicia of reliability
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permitted arrests without a warrant
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1. emergency arrest in a home
2. arrest in a public place |
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Authority to use roadblocks
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1. Must stop cars on the basis of some neutral, articulable standard (every third car)
AND 2. Be designed to serve purpose closely related to a particular problem related to autos and their mobility |
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terry stop
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police may briefly detain a person, without probable cause to arrest, if they have
1. reasonable suspicion supported by 2. articulable facts of criminal activity |
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Does the D have a Fourth Amendment right
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1. Was there govt. conduct
2. Did D have a reasonable expectation of privacy 3. Did police have a valid warrant 4. No valid warrant - did police make a valid warrantless search/seizure (6 possibilities) |
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automobile stops
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reasonable suspicion that the law has been violated
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Dog sniffs at traffic stops
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Okay so long as does not extend beyond time to issue ticket and conduct ordinary inquiries incident to stop
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Technologically enhanced search of homes
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if the technology is not available to the general public then it is unlawful
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government conduct
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1. publicly paid police
2. private individual acting at the direction of the police 3. private police deputized with the power to arrest |
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Requirements of a Warrant
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1. Issued by a Neutral and Detached Magistrate
2. Based on Probable Cause 3. Describes with particularity the place to be searched and items to be seized 4. Limited in duration |
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reasonable expectation of privacy
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1. if you own the premises searched
2. live on the premises searched 3. overnight guests 4. property seized if you have a reasonable expectation of privacy in the item |
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Use of informers to establish probable cause - sufficiency established by
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- Totality of the circumstances
- Reliability/credibility NOT a prerequisite |
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Identity of informer
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May remain anonymous
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probable cause
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fair probability that contraband or evidence will be found
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particularity
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1. place to be searched
2. the things to be seized |
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"Knock and Announce" Rule
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15-20 second delay UNLESS it would be dangerous/futile/would inhibit the investigation
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Exceptions to the warrant requirement
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1. Search incident to a lawful arrest
2. Automobile exception 3. Plain view 4. Consent 5. Stop and Frisk 6. Hot Pursuit, Evanescent evidence, and other Emergencies |
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exceptions to the good faith defense for a warrant
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1. so lacking in probable cause
2. so lacking in particularity 3. police officer lied to or misled the magistrate 4. the magistrate is biased |
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Scope of search of auto incident to lawful arrest
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Passenger compartment (including containers) but NOT the trunk (must be contemporaneous in time and place)
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Automobile exception
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Probable cause it contains contraband or evidence of a crime (same level as needed to get a search warrant)
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search incident to arrest requirements
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1. arrest must be lawful
2. the arrest and the search must be contemporaneous in time and place 3. can search the person's wingspan |
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Plain View Doctrine
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1. Legitimately on the premises
2. Such evidence is in plain view 3. Have probable cause the item is contraband or evidence |
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Consent to false announcement of a warrant
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Negates the consent - no authority to search
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when may the police search an automobile incident to arrest
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1. the arrestee is unsecured and can still gain access to the car, OR
2. the police reasonably believe the evidence of the offense for which the person was arrested may be found in the car |
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Who may consent to a search
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Any person with an apparent equal right to use or occupy the property
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the automobile exception to warrantless search
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1. probable cause
2. search the entire car 3. can open any package that could reasonably contain the item they had probable cause to look for |
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Scope of search based on consent
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Limited to those areas to which a reasonable person under the circumstances would believe it extends
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Scope of search incident to Stop and Frisk
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Pat down of outer clothing
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Scope of search of auto incident to a properly stopped traffic violation
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- May remove driver from car and
- IF reasonable believe person is dangerous - May search area limited to those in which a weapon may be placed or hidden |
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Seizure based on Plain Feel
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Incident to a Terry stop, officer may seize any item he reasonably believes is a weapon or contraband based on its "plain feel"
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Hot pursuit
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Officers in hot pursuit of a fleeing felon may make a warrantless search and seizure (even into a dwelling)
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valid consent
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voluntary and intelligent
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Evanescent Evidence Exception
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police may seize without a warrant evidence likely to disappear before a warrant can be obtained
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stop and frisk warrantless search
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can frisk after a terry stop only if there is a reasonable belief that the person is armed and dangerous (almost always met with proper terry stop)
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inventory searches
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before incarceration, may search
1. personal belongings 2. arrestee's vehicle |
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public school searches
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must have reasonable grounds for the search
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Right to counsel applies to what parts of a criminal prosecution
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All critical stages - adversarial judicial proceedings
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reasonable public school search
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1. moderate chance of finding evidence
2. measures adopted are reasonably related to the objectives of the search 3. search is not excessively intrusive |
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Right to counsel is offense
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Specific
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miranda warnings are required when
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custodial interrogation
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Waiver of Miranda Rights
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Must be knowing, voluntary, and intelligent; look at totality of circumstances; will not be presumed from silence
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what constitutes an interrogation
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questioning or acts that the police know or should know might have an incriminating response
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Differentiate between Right to Remain Silent and Right to Counsel
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- Silent: all questioning related to the particular crime must stop
- Counsel: all questioning must cease (not offense specific) |
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invoking the right to remain silent or to counsel
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must be unambiguous
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Involuntary confessions
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Never admissible for any purpose
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Public safety exception to Miranda
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If police interrogation is reasonably prompted by concern for public safety, questions obtained in violation of Miranda may be used in court (scope unclear, probably limited)
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police may re-initiate questioning after defendant has invoked the right to remain silent when
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1. defendant is remirandized
2. questions are limited to a crime that was not the subject of the earlier questioning |
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questioning after defendant has requested counsel
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all questioning must cease until
1. the defendant is given an attorney, or 2. the defendant initiates further questioning |
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violation of due process relating to identification
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- Unnecessarily suggestive
AND - Substantial likelihood of misidentification (a difficult test to meet) |
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Refusal to grant bail or the setting of excessive bail appealable when
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Immediately
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remedy for denial of pretrial due process
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exclude the in-court identification- the witness will not be permitted to identify the person in court
state can rebut by showing an adequate independent opportunity |
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Right to unbiased judge
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Violation of due process where judge shown to have
- Actual Malice OR - Financial Interest |
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defendant's rights in a grand jury proceeding
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no right to appear or send a witness
can be based on illegally obtained evidence |
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duty to disclose exculpatory evidence
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failure to disclose, willful or inadvertently, violates due process and may be grounds for reversal if:
1. evidence is favorable to the defendant and, 2. there is a reasonable probability that the result would have been different |
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Jury pool must be selected from
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A representative cross-section of the community
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Effective assistance of counsel right extends to
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First right of appeal
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Circumstances constituting ineffective assistance of counsel
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1. Deficient performance
AND 2. Result of the proceeding would have been different |
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right to trial by jury
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when tried for an offense with a maximum sentence is MORE than 6 months
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Basis for an attack on a guilty plea after sentence (4)
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1. Plea involuntary
2. Lack of jurisdiction 3. Ineffective assitance of counsel 4. Failure to keep the plea bargain |
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number and unanimity of jurors
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must be at least 6- must be unanimous
larger juries do not necessarily need to be unanimous |
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Any automatic category for imposition of death penalty is
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Unconstitutional
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peremptory challenges
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can use for any reason except to exclude on basis of race or gender
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Trier of fact to determine aggravating factors justifying imposition of death must be
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Jury (not a judge)
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Jeopardy attaches for jury trials
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Empaneling and swearing in of the jury
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Jeopardy attaches for bench trials
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When the first witness is sworn
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Jeopardy in civil proceedings
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Generally does NOT attach
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Exceptions permitting retrial
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1. Hung jury
2. Mistrial for manifest necessity 3. Retrial after succesful appeal 4. Breach of plea bargaining |
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Breach of plea bargain by D allows prosecutor to
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Reinstate original charges
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right to self-representation
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waiver of counsel must be knowing, intelligent, and defendant is competent to proceed pro se
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Effect in criminal proceeding of failure to claim privilege against self incrimination in civil matter
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Privilege waived
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right to confront witness exception
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1. defendant is disruptive and is removed
2. when preventing such confrontation serves an important public policy and witness reliability is otherwise assured |
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Scope of protection against self incrimination limited to
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Testimonial evidence; physical evidence not protected
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Elimination of the privilege against self-incrimination
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1. Grant of immunity
2. No possibility of incrimination (statute of limitations has run) |