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92 Cards in this Set

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  • Back
When does the right to a jury kick in? (fed + IL)
Feds: if potential sentence is greater than 6 months.
IL: if punishable by 1 day in jail.
Do juveniles have a right to a jury?
no, b/c
1. it’s not civil or crim ct., 2. not interested in punishment, but rehabilitation; 3. can’t get bail.
What are the requirements on a waiver of right to jury?
it must be in writing. must be: knowing, voluntary, intelligent. (Schneckloth)
Why do state ct. D’s not want jury trial?
jury tax, not as prone to stick to elements, easier to get good judge, horrific nature of crimes.
What is a lawyer’s role in voir dire? (state)
-lawyer may submit additional questions, or conduct the voir dire.
What is a lawyer’s role in voir dire (fed.)
-judges almost always do voir dire. If done by lawyers, D should try to agree with judge on questions in writing.
What must a judge ask about during voir dire?
If they agree with presumption of innocence, D doesn't need to put on case, reasonable doubt, can't hold it against D for not testifying.
How many jurors are needed?
At least 6 [6 ok for non-DP-Williams], don't need 12 all the time.
When can a D get a bench trial?
When he can convince the judge in IL, and when he can convince judge and prox. in Fed.
What is the 3 step Batson process?
1. D has to show a prima facie case for discrimination (pattern, cognizable, recognizable groups) 2. Prox. gives neutral explanations. 3. Dox. gets chance to say why they're pretextual.
Do you need to be from the excluded group to raise a batson challenge?
No, [powers]
In capital cases, what questions can the D make the judge ask?
racial bias ones
In a high publicity case, does the judge have to ask the jurors about what they've seen/heard
What do you need for a for-cause dismissal?
Actual bias in the case-at-bar.
What does the venire require?
A fair, auto-inclusive cross-section of the community.
When can you witherspoon a jury?
at either the guilt or sentencing stage.
What do you do with someone who says they will always apply the death penalty?
No case law that says they must be excluded.
What must be shown for error in opening arguments?
1. deliberate misconduct. 2. prejudice to the D.
What if there's just one?
If it's limited to opening, nothing. (Trass=prej. but not delib.) Kliner= delib. but not prejud.
What if the opening statement is one of many prejudicial things?
Then you look at the cumulative effect, and don't need to prove bad faith. (Tenny)
What about when you say stuff you won't be able to prove up?
It's error; Leonard. shoudln't bring up stuff that will take jury's eyes away from ultimate issue.
What's the deal with Brady?
Prox. must give over evidence that mitigates and is material to guilt or punishment. otherwise, violation of 14th DPC
Does good faith matter in Brady?
No, no it doesn't.
What does material mean?
There's a reasonable probability that had the material been turned over, the outcome would have been different [bagley]
what does reasonable probability mean?
Confidence in the verdict is undermined. [kyles]
When do you get discovery in IL?
Starting at arraignment.
What duties are there regarding witneses?
In IL, Prox. and Dox. have ongoing duty to inform other side of witnesses (and their info). Also, the Dox. has to give the prox. notice of defense.
How should materiality be looked at?
Cumulatively, not piece-by-piece. Kyles
For materiality, do you have to show that the verdict would have been different?
No, you merely have to undermine the confidence in the verdict. Don't have to mention discounting inculpatory evidence, either.
What did Bagley add to Brady?
Impeachment materials.
What kind of standard of review do Brady violations get?
If there's a brady violation, there's a reversal. No such thing as harmless error, viewed as structural problem
Do you have to disclose material that is inadmissible? what about admissible stuff you don't end up using?
No/Yes. [wood]
Fed rule 16?
You don't get gov. witness statements in advance. have to ask for them as 3500 material after gov. W has testified.
When do the discovery rules apply in IL?
SC Rule 411: only to felonies.
What does 412 require?
witness names, address, info. Also, D gets substantially verbatim report of witness oral statements.
What makes IL discovery rules different than feds?
Stuff doesn't have to be 'material' in order for Prox. to have to turn it over.
Do you have to disclose an informer's identity?
Disclosure of an informant's identity shall not be required where his identity is a prosecution secret and a failure to disclose will not infringe the constitutional rights of the accused.
What does the D have to give the Prox. when asked?
All non-testimonial evidence. (hair, blood, voice,etc.)
What does Giglio make Prox.s do?
Prox. is responsible for all offers made by any law enforcement official. Has a duty to research this.
Does the Dox. have to request discovery material?
No, under agurs, it's mandatory.
Does impeachment material need to be material to be discoverable?
What's required to get a motion to suppress granted for destruction of evidence?
Have to show bad faith in the destruction, that the D has no other way of getting the info, and that the destroyed stuff probably would have been exculpatory.
On appeal, does failure to preserve evidence reverse the case?
Not unless there was bad faith, no other way, and probable exculpatory evidence. [Youngblood].
What wins, the state's desire to keep a juvenile's crim record sealed, or the Confrontation Clause?
Confrontation Clause. [Davis v. Alaska].
What happens when discoverable material also includes a gov. lawyer's notes?
You redact the work product (mental impressions) and turn it over [hickman]. [goldberg for work product].
When does the confrontation clause attach?
At trial. So, pre-trial fishing expeditions for priveleged impeachment materials won't work; at best, you can get an in camera review at trial. Best bet is to know what you're looking for.
What are the four main points of the confrontation clause?
1. physical presence. 2. oath. 3. cross-examination. 4. observation of demeanor by trier of fact. [MD v. Craig.]
Is face-to-face contact req'd by Confrontation clause?
no. md v. craig.
What should you do when impermissible stuff gets in accidently during witness testimony?
The judge should issue a curative instruction. SHould work, unless really prejudicial. It get's harmless error analysis.
Where does the right to confront and cross come from? what happens if they're denied?
Pointer. if denied, get harmless error [delaware]
When does the Dox. get subpoena power?
at trial.
When can Dox. make a motion for directed verdict?
At end of prox. case, at end of his case, and after deliberations. Has to be allowed to do this [withers]. Also, isn't all or nothing.
What should a Dox. do when a 3rd party gives him evidence?
It depends: If he thinks it would be destroyed, he should turn it over to Prox. and be prepared to withdraw and testify to chain of custody. Otherwise, give back to W and inform of laws of conceal/desstroying evidence.
What does a Dox. need in order to have a legit Nix. problem?
"actual proof" that his client will perjure himself.
IS there a difference between "real evidence" and "fruits of crime" when it comes to Dox's obligation to turn stuff over to the Prox.?
NO! Morrell
What happens if the D gives the Dox. fruits of crime evidencce?
the Dox. must turn it over to the Prox., although privilege will allow him to not testify as to where he got it. [anderson]
What if the Dox. destroys/alters the evidence?
Then he will have to testify as to where he got it. [meredith]
What happens if a Dox. gets his hands on evidence in his capacity as D's lawyer?
Has to turn it over, as not protected by privilege. Olwell.
What kind of test is used to determine if making the D testify in the narrative is too prejudicial?
A good faith, discretionary test. Trombetta
IF there is no duty to disclose to prox., what should a Dox. do when someones brings them something?
Return it to the giving party, and make sure they know about concealment/destruction.
If you have the D testify in the narrative, what are the consequences?
You can't mention what they said in closing.
What should a ct. do when surprise witnesses keep getting added?
Use the least powerful appropriate sanction. Preclusion should be last resort.
What happens if Dox. puts wrong address for a witness?
See if state prejudiced (did they investigate?)
Is it appropriate for a judge to not allow Dox. to impeach state witness with stuff they didn't give over in discovery?
Yes, yes it is. Trice.
What should a court do when a Dox. fucks up?
If appropriate, sanction Dox. before hurting D. Foster
What should the court do when the D's actions make it D v. D, as opposed to state v. ds?
He should sever trials. Spain.
What's the 2 step bruton analysis?
1. Is there a bruton error? 2. Was the D prejudiced?
Can the Judge or Prox. comment on the D not taking the stand?
No, Griffon.
What do you do when offenses can be joined?
IL: you have to.
Fed: you can.
Can you try a D in absentia?
Feds: No. Even if he escapes (crosby)
IL: yes. have to show that defendant is willfully avoiding trial. Also, clerk must have sent certified mail. Failure to appear is waiver of right to confront.
What's the standard of review for Prox. mis in close?
Take the comments as whole, in light of the whole trial. see if D prejudiced. Gets harmless error analysis.
What standard are objections to jury instructions reviewed with?
Plain error.
What do you need to show to get a lesser included instruction?
The elements test. (schmuck)
What happens when the jury asks about sentences?
Don't tell'em nothing, except in capital cases: tell'em that it's either death or life.
Must the D be present when judge answers jury questions?
What do you do when the jury is deadlocked?
Give them an Allen instruction, or Prim in IL.
When should you raise issues of juror misconduct?
At trial, otherwise might fall under deliberations.
What do you have to have in IL to get a D shackled?
A boos hearing
What does an external influence on the jury have to reach to be reversible error?
It must materially prejudice the D. parker
What admonitions does a judge need to give a D who is pleading guilty?
1. nature of charge.
2. min/max sentence
3. right to plead NG
4. D is waiving right to trial.
What must a judge find to accept an Alford plea?
Knowing, intelligent, strong factual basis.
When must a mistrial be given?
When there is a manifest necessity (prejudice so severe it can't be cured.)
When can the gov. reprosecute?
after a nolle, or if prosecuted by different sovereign.
When can the Prox. appeal?
after nolle, after dismissal on matter of law, and when D moves to have case terminated and there hasn't been a finding on guilt/innocence.
what is collateral estoppel?
When there's already been a finding of fact on the ultimate issue. [ashe]
What gets considered at sentencing?
Agg: anything D has been arrested for that can be proved by preponderance, victim impact.
What rights does D have at sentencing?
Can make a statement (allocution). Has to answer all of judge's q's that aren't 5th protected.
What must a judge show to sentence someone beyonod stat. max?
a jury needs to have made a finding on anything that needs to be proved beyond a reasonable doubt.
In IL, what is one of the main alternatives to jail time?
What qualifies as a structural error?
total deprivation of right to trial counsel, right to self-representation, public trial, biased judge, Batson, const. deficient jury instructions
What is the test to see if an error is harmless?
It must be proven harmless beyond a reasonable doubt. The court will determine this by looking at the entire record de novo.
Can the D get a harsher sentence on retrial?
Yes, as long as it's not vindictiveness on the prox.'s part. the sentence must be based upon an objective finding "identifiable conduct on the part of the defendant occurring after to time of the original sentencing"