Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
82 Cards in this Set
- Front
- Back
|
Exclusionary Rule
|
Excludes all evidence illegally obtained in violation of 4A
Standing - you must personally be victim of police's unreasonable conduct - did you have a legit expectation of privacy? Fruit of the poisonous tree - any additional evidence acquired either directly or indirectly from illegal arrest, search, or seizure must be excluded as TAINTED - does NOT work for Miranda stuff Subsequently seized evidence - inadmissible under fruit doctrine, EXCEPT independent evidence, inevitable discovery, intervening act of free will (like subsequent confession after release) Challenge Warrant - D may challenge affidavit upon which a warrant was issued by proving by a PREPONDERANCE OF EVIDENCE the following conditions: substantial showing affidavit contained false statements; statements were made intentionally, knowingly, or in reckless disregard for truth AND magistrate's finding of probable cause could not have been made without false statements (FRANKS) Balancing Approach - exclusionary rule precludes use of bad evidence in case-in-chief, NOT impeachment! Good Faith Exception - evidence obtained purusant to an ivalid warrant will not be excluded if a reasonably well-trained officer would have believed warrant was valid - isolated instance of negligence is okay too (warrant still in computer system) Exclusionary rule NOT extended to grand jury proceedings - evidence may be considered in granting indictment confession obtained without giving Miranda warnings may be used to impeach a D's testimony (unless it was coerced or immunized) Procedural and Enforcement Considerations - D has a right to a suppression hearing, at which time judge, as a matter of law, determines admissibility of the evidence by a PREPONDERANCE D's testimony at suppression hearing may NOT be used against him at trial on substantive issue of guilt Admission of illegally obtained evidence constitutes REVERSIBLE ERROR unless error is harmless - gov't must prove beyond a reasonable doubt that the error did not contribute to a conviction |
|
|
Custody and arrest
|
Custody- when a person is in the presence of a law enforcement officer and is not free to leave
Arrest- when you're taken into custody for purpose of commencing criminal action against you Unlawful arrest is NOT a defense to subsequent conviction of crime charged! |
|
|
Warrant Requirement
|
You generally only need PC for arrest
BUT you need a warrant to arrest someone in their house, absent exigent circumstances Without exigent circumstances, police may not search home of third party without a warrant Without exigent circumstances, police must knock and announce - but violating this rule doesn't necessarily mean evidence is excluded! (exigent circs include reasonable suspicion that announcing would be dangerous, futile, or bad for investigation) |
|
|
Warrantless Arrests at Common Law
|
Both police and private citizens may make arrests for felonies committed in their presence! for private citizens, only valid if they actually committed felony - police officer, reasonable suspicion
Misdemeanors - in presence of office/person AND breach of peace - need a warrant if you didn't actually observe it |
|
|
Probable cause
|
measure of facts and circumstances within police officer's knowledge that would warrant reasonable person to conclude that individual in question has committed a crime (for an arrest) or specific items related to criminal activity can be found at a particular location (search)
need to know it at moment of gov't intrusion We do NOT care about subjective police motives |
|
|
Anticipatory or Conditional Warrants
|
warrants conditioned on an event occurring
To issue a conditional warrant: 1) if triggering condition occurs, there must be a FAIR PROBABILITY that evidence of a crime or contraband will be found at particular location 2) AND there is probable cause that the triggering condition will occur |
|
|
Reasonable Suspicion
|
belief based upon articulable info more than a mere hunch used by a reasonable person or officer that suspect has or is about to engage in criminal activity
RAPS - reasonable, articulable, particularized suspicion Persons present on premises during valid search pursuant to warrant may be detained! |
|
|
To FRISK
|
RAPS that D is armed and dangerous
|
|
|
To STOP
|
RAPS of criminal conduct PLUS some evidence to corroborate it
|
|
|
Flight
|
not enough for PC, but enough for RAPS
|
|
|
Informant's tip
|
Police need other objective evidence than just what the guy says - predictive information to test the tip!
|
|
|
Car passengers
|
no standing to challenge SEARCH of car, BUT standing to challenge STOP - if stop is invalid they can challenge search as fruit of wrongful stop
|
|
|
Reasonable expectation of privacy
|
must be had for standing to challenge a search or seizure - substantial nexus between D and place searched
|
|
|
Reasonable searches
|
must be made pursuant to a warrant OR under an exception - unlike arrests, which can generally be made without a warrant!
Warrant must describe with particularity item to be searched for and place to be searched - need PC! Only police may execute a serach warrant - needs to be promptly, when PC exists - absent exigent circumstances, police must knock and announce |
|
|
Consent
|
consent to waive your 4A rights- police need to show:
1) voluntariness (determined by totality of circumstances - police don't have to tell you you don't have to consent) - sometimes assumed by specific behavior, like flying or engaging in regulated business - consent may be revoked at any time, and search must cease 2) proper scope - any conduct exceeding scope of consent is unlawful - defined by terms of consent 3) third party consent - actual or apparent authority |
|
|
Informants and 6th Amendment
|
D must demonstrate that police and their informant took some action, beyond merely listening, that was designed to deliberately elicit incriminating remarks to show 6th amendment violated
|
|
|
5th amendment and non-custodial questioning
|
Purpose of questioning determines whether individual's failure to affirmatively invoke 5A constitutes a valid waiver:
the more criminally investigative the gov't's purpose, the more likley the court will be to require a KNOWING, INTELLIGENT, and VOLUNTARY waiver from individual questioned D's silence may be used as an adoptive admission in a precustodial situation |
|
|
Immunized testimony
|
CANNOT be used to impeach - but CAN be used to prove perjury
|
|
|
When an interrogation occurs
|
when police know or should know that their actions or inquiries are REASONABLY LIKELY TO ELICIT INCRIMINATING RESPONSE from suspect
Miranda bars only official interrogation - informant questioning in jail does NOT require Miranda - Miranda also does not apply to questioning by private security guards |
|
|
Custody for Miranda purposes
|
following objective factors to tell if D is in custody (did he suffer a significant deprivation of freedom of movement?):
when and where it occurred; how long it lasted; how many police officers were present; what the officers and D said and did; presence of physical restraint or the equivalent, such as a drawn weapon or guard stationed at the door; and whether D was being questioned as a suspect or a witness Subjective factors are NOT considered - don't care about subjective beliefs of police or D |
|
|
Are Terry stops custodial for Miranda purposes?
|
NO
|
|
|
Statements made before a grand jury investigation?
|
not the products of custodial interrogation
|
|
|
Miranda does NOT apply to:
|
questions by police about preliminary and background matters (slurred response when answering a question is admissible in a drunk driving case)
Also, questioning by a parole officer when D was free to lave station Right to receive Miranda warning may in some cases be outweighed by immediate threat posed to public safety! |
|
|
Admissibility of statements obtained in violation of Miranda
|
Not for prosecution's case in chief - okay for impeaching D's testimony at trial!
If you admit evidence in violation of Miranda, NOT automatic reversal if gov't can prove it was harmless error |
|
|
Co-Conspirators and standing
|
Co-conspirator does NOT have automatic standing to challenge the seizure of illegally obtained evidence from another co-conspirator - your PERSONAL privacy right needs to have been invaded!
|
|
|
Can waiver of Miranda rights be presumed from D's silence?
|
Ordinarily no
|
|
|
Identification
|
can't be suggestive and unnecessary - if it IS though, can still be admissible based on totality of the circumstances:
opportunity to view criminal at the scene; witness's degree of attention; accuracy of witness's description; degree of certainty of the witness; and time interval between crime and ID |
|
|
Bad out-of-court ID and then in-court ID
|
if it's bad because of suggestiveness or unreliability, subsequent in-court ID will NOT be allowed
if it was because you had right to counsel and they weren't there, prosecution can still have the witness make an in-court ID if they can clearly and convincingly show that the subsequent ID stemmed from an independent, purging source Improper admission of an ID will result in overturning a conviction, UNLESS prosecution can show harmless error |
|
|
indictment
|
written accusation of charges against D issued by a grand jury after it reviews prosecution's evidence
|
|
|
5A right to grand jury
|
ONLY in federal felony cases
accused can waive grand jury hearing except in capital offenses composed of between 16 and 23 persons, 12 of whom must agree to issue indictment accused has NO right to be present at grand jury, or even know that it is considering evidence against him, or confront witnesses or introduce evidence has power to subpoena evidence or testimony it wishes to consider No Miranda warnings needed for potential Ds testifying at grand jury proceedings |
|
|
Information
|
written accusation of charges filed in name of state by prosecutor based on info submitted by police or private citizens
information is an alternative to indictment, used when grand jury indictment is not required or has been waived - almost ALWAYS used in misdemeanors! preliminary judicial hearing on probable cause prior to filing an information is afforded in most states, but is NOT a const right |
|
|
Booking
|
booking procedures, photographs, and inventory searches that compel only physical evidence are NOT protected by 5A
D accused of driving drunk can be forced to submit to blood alcohol test without 5A implications, and his refusal may be used against him at trial |
|
|
Bail Hearing
|
NOT a critical stage where you have a right to counsel
no explicit const right to bail |
|
|
Preliminary Hearing
|
adversarial procedure used to determine probable cause to prosecute - no const right for this exists unless D is arrested without warrant or prior indictment, you need one under 4A (FRANKS)
you may waive your right to this |
|
|
Arraignment
|
D is given formal notice of the charges against him and advised by the court of his rights
D has a right to counsel here! If D pleads not guilty, or is silent, preliminary motion and trial dates are set - but if D pleads nolo contendere (no contest), D can forgo a trial without admitting guilt - but this plea IS admissible to prove guilt in subsequent criminal and civil cases If D pleads guilty and thus waives jury trial, judge then determines whether plea was voluntarily and intelligently made (plea taken on record and judge must be personally certain that D understands nature of charge against him, maximum and minimum possible sentences, fact that he has a right not to plead guilty; and that by pleading guilty, right to a jury trial is waived) D MUST be advised of his right to counsel here D may withdraw his guilty plea and plead again when any form of error occurs during the taking of the plea - withdrawn guilty plea is inadmissible in subsequent civil trial |
|
|
Motions
|
following formal indictment, D may raise motions to dismiss, motions to suppress evidence, or motions to compel discovery
D's chief remedy for enforcing 4A, 5A, or 6A rights is to bring motion to suppress evidence, generally pursuant to either exclusionary rule or fruit of poisonous tree doctrine motions can be filed to compel the prosecution to provide discovery that D believes is relevant and available to P before trial, motions can be filed to keep prosecution from presenting evidence that, although obtained legally, may not be admissible because of evidentiary rules |
|
|
Plea Bargaining
|
D may agree to plead guilty in return for prosecutor's recommendation of less sentence or dismissal of charge
D has a right to enforce his plea bargain once court accepts the plea - you can get specific performance of plea OR withdrawal of guilty plea Plea bargain is enforceable against PROSECUTOR, but not the judge Prosecutor can threaten D with a more serious charge if he doesn't plead guilty! Prosecutor doesn't need to tell D about info that may tend to impeach credibility of prosecution witness before D enters into plea agreement |
|
|
Collateral attacks on guilty pleas after sentencing
|
if D knew the risks involved before choosing to waive a jury trial, D does not have right to collaterally attack guilty plea for prior constitutional violations
However, D who pleads guilty IS allowed to file a collateral attack: when prosecutor fails to keep his promise; when ct lacks jx; or when ineffective assistance of counsel occurs |
|
|
Right to speedy trial
|
6A guarantees criminal D right to speedy trial in BOTH fed and state court
Violation of this right results in COMPLETE dismissal of charges against D Right attaches once D is ACCUSED - arrest, or filing of charges (pre-arrest delays may violate due process ONLY if sufficient prejudice is found) Long interval between arrest and indictment raises inference of violation, EVEN IF D was released after the arrest Speedy Trial Act of 1974: requires federal indictment within 30 days of arrest and trial within 70 days of indictment Factors for judge to see if there's been a violation: length of delay, reason for delay (waived if D willfully delays trial to file pretrial motions. If prosecution delays, court evaluates good faith and justifiability of delay); D's assertion of right to speedy trial; and prejudice to D, which may include oppressive incarceration, memory loss by witnesses, loss of evidence, and anxiety to D |
|
|
Rights during Discovery Stage
|
D MUST be informed of charges against him
D must be granted same discovery rights as prosecution Prosecution has a limited right to compel disclosure of some info by D (D may be compelled to notify P in advance of an alibi defense, including names and addresses of any alibi witnesses. Prosecutor may NOT comment on D's failure at trial to either present alibi or produce alibi witness - but D may be impeached when he gave notice of one alibi but testified as to a different one!) Exculpatory info MUST be disclosed when requested by D: that is favorable to the accused; when there is reasonable probability that it is favorable to the accused - BUT prosecution is NOT required to disclose this info to criminal D prior to entering into plea agreement with him! unrequested exculpatory evidence must be disclosed only is situations where it creates a reasonable doubt that did not otherwise exist if prosecution fails to disclose evidence in violation of discovery rules, D is often entitled to a new trial! in order to obtain a reversal, D must show that nonpreserved evidence was actually exculpatory; and he was unable to obtain such evidence on his own |
|
|
Double Jeopardy in general
|
Double Jeopardy clause intended to prevent undue harassment and expense by eliminating the risk of D's being punished twice for the same offense - in 5A!!
Applies to ALL crimes, even ones punishable only by fine |
|
|
When jeopardy attaches
|
in a nonjury trial, jeopardy attaches when the first witness is sworn and the court begins to hear evidence
in a JURY trial, jeopardy attaches when jury is impaneled and sworn if a civil fine is TRULY a punishment, then Double Jeopardy clause is triggered when grand jury fails to indict D, or hands down a no bill or no true bill, D may again be indicted for same offense - Jeopardy has not yet attached! |
|
|
Same Offense
|
Crimes constitute the same offense for double jeopardy IF ONE SET OF FACTS PROVES THEM BOTH
when 2nd offense contains ALL the elements of the first offense, plus additional elements, the first offense is a LESSER INCLUDED OFFENSE of the second once jeopardy has attached for the lesser-included offense, retrial is barred for greater offense likewise, once jopardy has attached for greater offense, retrial is barred for lesser included offense order of trials is irrelevant, as is the determination of whether D was acquitted or convicted for the first offense |
|
|
Exceptions to Lesser-Included Offenses
|
when at the time jeopardy attaches for the first offense all the elements of 2nd offense have NOT occurred, later trial for greater offense permitted!
if prosecution wishes to try closely related charges together, D may make a motion for separate trials - but if request is granted, he has WAIVED double jeopardy separate trials and separate punishments do NOT violate double jeopardy and are proper when one unlawful act produces more than one separate criminal offense Separate offenses: burglary and conspiracy to commit burglary (NOT IN OHIO); driving while intoxicated and involuntary manslaughter; and murder of more than one victim |
|
|
Separate Sovereignties Doctrine
|
double jeopardy prohibition does not prevent dual prosecution by separate sovereigns - SO, D may be prosecuted for SAME criminal conduct by: a FED court and THEN by a STATE court; or vice versa, OR STATE courts in two separate states
inasmuch as a municipality is not considered a separate sovereign, a local conviction WOULD bar a state prosecution for the same offense |
|
|
Retrial after Jeopardy attaches
|
Despite rule against double jeopardy, retrial is permitted IF:
D successfully appeals his conviction because of an error made at trial; OR the appeal was granted because of amount of evidence supporting the conviction (if it was because evidence INSUFFICIENT, barred - if because conviction against teh weight of the evidence, NOT barred) retrial for a greater offense is uconst after a conviction for a lesser-included offense |
|
|
Retrial after a Mistrial
|
retrial is permitted in situation where a mistrial has been granted on D's motion
retrial is NOT permitted when D objects to a mistrial, unless in discretion of ct a manifest necessity exists that justice can only be served by declaring a mistrial (like a jury that fails to agree on a verdict - retrial okay!) If judge grants ACQUITTAL instead of mistrial following hung jury, NO RETRIAL |
|
|
Appeal by Prosecution
|
prosecution's right to appeal an adverse ruling is more limited than D's right to appeal - can only appeal without bar of double jeopardy:
1) when a judge grants an acquittal on an issue not related to guilt or innocence of D - prosecution may appeal dismissal 2) prosecution may appeal whenever appeal can be decided without subjecting D to a second trial |
|
|
Application of Double Jeopardy in Sentencing
|
when D appeals his conviction, receives a new trial, and is then reconvicted for same offense, double jeopardy is NOT an absolute bar to imposition of harsher sentence
BUT, due process requires that more severe sentence can be given upon reconviction ONLY when judge makes affirmative showing of new info on the record Also, double jeopardy clause does apply to capital-sentencing proceedings when such proceedings have the hallmarks of trial on guilt or innocence This limitation preventing more serious punishment upon resentencing is inapplicable following a jury sentence or trial de novo when D is convicted of murder and sentenced to life but successfully appeals, jeopardy has NOT terminated and life sentence initially imposed does NOT raise a double jeopardy bar to a death sentence on retrial = death sentence on retrial okay court can reduce sentence on appeal to the sentence of a non-jeopardy-barred crime |
|
|
Collateral Estoppel
|
precludes relitigation between same parties of issues actually determined at earlier trial - embodied in guarantee of double jeopardy
will only be applicable when the very issue sought to be precluded in later prosecution has been necessarily determined in the earlier trial |
|
|
Right of Severance
|
when 2 Ds are tried together, if either is unfairly prejudiced at any stage of joint trial, right of severance may be granted!
In joint trial where co-D's confession implicates other D, right to confrontation prohibits use of this confession and dictates that Ds are entitled to separate trials tradition approach of giving jury instructions to consider the confession only against confessing D is constitutionally INADEQUATE, UNLESS: incriminating portions of confession can be adequately deleted; co-D takes witness stand after making confession and is subject to cross-examination (even where co-D testifies that he never made the confession); or co-D's statement is subject th harmless error rule |
|
|
Impartiality
|
due process right to an unbiased judge requires D tried before magistrate who is neither prejudiced against D nor financially interested in outcome of the trial
|
|
|
Right to Counsel at Trial
|
6A says you get counsel at fed or state trial
right to counsel means right to EFFECTIVE counsel - law presumes counsel is effective, and it's D's burden to demonstrate otherwise - may be raised in any appeal D making claim must prove both: 1) counsel was ineffective (deviated from reasonably prevailing norms) and 2) there is a reasonable probability that verdict would have been NOT GUILTY had counsel been effective BUT this test does not get used 1) if there is an actual conflict that adversely affects the attorney's performance, reversal is proper or 2) if D's attoreny indicates to court that such a conflict exists, D must be severed |
|
|
Waiver of counsel
|
D can do this if it's knowing and intelligent
D has right to represent himself (but ct can appoint stand-by counsel, although D can't divide representation between the two of them - D can also be deemed incompetent to defend himself BUT still competent to stand trial) although intelligent waiver of right to counsel will generally be recognized and approved, there is NO absolute right to waive counsel at the APPELLATE level |
|
|
Free counsel for indigents
|
indigent must be informed of right to free counsel BEFORE valid waiver can arise
no const standard for indigency - some states require D to repay amount of attorney's fees later if possible attorney must be appointed when there is a colorable issue in controversy, although attorney may withdraw if he feels there are no valid issues in controversy |
|
|
Conflict of interest and 6A
|
violation of 6A to represent more than one D whenever a conflict of interest is shown to exist that jeopardizes rights of any D or adversely affects attorney's performance, although co-Ds may choose to share counsel
Either D or court may raise attorney's conflict of interset to demonstrate that a violation of 6A right to counsel resulted from counsel's conflict of itnerest, D must show that conflict adversely affected counsel's representation |
|
|
Failure to provide counsel at trial
|
results in automatic reversal
BUT harmless error rule applies to denial of counsel at criminal proceedings OTHER than trial |
|
|
Non-Critical stages
|
preliminary identification procedures
pre-indictment lineups nonadversarial detention hearings grand jury proceedings discretionary appelas parole revocations habeas corpus proceedings |
|
|
Competency of D
|
D must be able to understand nature of charges against him and have the capacity to consult with his lawyer in preparing his defense
D must be oriented as to time and place and also must have fair recollection of events surrounding the charge D has a right to a hearing by a judge to determine competency, but it is often determined by jury Competency to stand trial CANNOT be waived (determined by D's mental condition AT THE TIME OF TRIAL, not at time crime (like insanity is), and may be raised after completion of trial D found to be incompetent is generally committed for treatment, but cannot remain indefinitely in a mental hospital - criminal proceedings are suspended until D regains competence gov't may administer antipsychotic drugs to mentally ill D against D's will for purpose of rendering D competent to stand trial on serious criminal charges |
|
|
Jury Trial
|
attaches in any CRIMINAL proceeding where D faces potential sentence for LONGER THAN 6 MONTHS (also criminal contempt cases count - but not civil contempt cases)
D can expressly and intelligently waive right to jury trial |
|
|
Size of Jury
|
6 member jury is upheld in noncapital cases in state courts as long as they are a representative cross-section of community
UNANIMOUS verdict required for 6 person jury FED trials require unanimous verdicts from 12 member juries state criminal trials have 12 member juries do NOT need to be unanimous - even 9-3 has been upheld |
|
|
Makeup of Jury
|
cross-section of community - need not include members of all minority groups
prosecutor generally may exercise peremptory challenges for any rational or irrational reason OTHER than race or gender exclusion of prospective jurors based on race and gender violates EPC (underrepresentation of distinct and significant racial group provides adequate grounds for prima facie showing of discriminatory jury selection - P must rebut) D has standing to challenge jury selection even if he is not a member of excluded group it is reversible error to exclude jurors merely because they have misgivings about imposing capital punishment |
|
|
Right to a Public Trial
|
in all criminal prosecutions under 6A!
D may choose to waive this right and exclude press and public members of press and general public have 6A right to be present at all criminal proceedings except grand jury, unless judge specifically finds some overriding interest to necessitate a closed trial - this right can SUPERSEDE D's WAIVER - trial judge has right to place limitations on public and media - but exclusion must be to protect D's right to fair trial In states that use preliminary hearings instead of grand juries, no general right for media to be present at those proceedings |
|
|
Right of Confrontation
|
Fundamental Right - D may confront all witnesses against him in any CRIMINAL prosecution, fed or state
Does not apply to grand jury proceedings Court may remove disorderly D from court - may NOT place a screen between child-abuse victim and D, but MAY exclude D and transmit child's testimony to him via television Prosecution must demonstrate that witness is unavailable after good faith efforts have been made, and that hearsay statement is trustworthy (it falls into one of recognized hearsay exceptions, or is made under oath, and D had opportunity to cross-examine last time) confrontation clause WINS over excited utterance exception when statement was testimonial in nature NOT absolute - may be waived |
|
|
Right to Compulsory Process
|
right to compulsory process gives D power to present his own witnesses and a fair opportunity to present defense free from intimidation or prejudicial exclusion of material evidence
6A right to compulsory process for obtaining witnesses applies to STATE CRIMINAL proceedings too |
|
|
Procedural Rights for Conviction
|
prosecution must prove BEYOND A REASONABLE DOUBT, but not beyond all doubt, that D is guilty of EACH ELEMENT of the crime charged to satisfy due process requirement of fair trial
D may be required to prove an affirmative defense by PREPONDERANCE OF EVIDENCE - but in insanity cases, after some evidence of insanity is raised, prosecution generally must prove sanity beyond a reasonable doubt because there is NO ABSOLUTE RIGHT TO JURY INSTRUCTION ON PRESUMPTION OF INNOCENCE, failure to so instruct jurors cannot, by itself, amount to a denial of a fair trial mandatory presumption, which jury MUST accept, is unconstitutional in a criminal trial because it violates D's right to due process PERMISSIVE PRESUMPTION, which jury may accept, is allowed in criminal proceedings only when a rational connection exists between prosecution's proof of basic fact and jury's inference of the ultimate fact or element of crime |
|
|
D's rights during sentencing
|
Right to Counsel
Right to Remain Silent - and no adverse inference may be drawn from exercising this right During sentencing, court MAY use hearsay evidence and testimony not subject to cross-examination, or evidence obtained in violation of 4A - but when death penalty is involved, D is given greater confrontation rights Other than fact of prior conviction, ANY fact that INCREASES penalty for crime beyond prescribed statutory max must be submitted to jury and PROVED BEYOND REASONABLE DOUBT (D may waive this right if just being sentenced by judge) Sentencing judge without jury may not find aggravating circumstances necessary for imposition of death penalty Jury must be able to consider and give effect to D's mitigating evidence in imposing sentence D's 6A rights are violated when sentencing judge ENHANCES sentence based on facts neither admitted by D or found by jury with regard to fed sentencing guidelines, sentence outside advisory guidelines range does NOT require extraordinary circumstances and is reviewed under an ABUSE OF DISCRETION standard, regardless of whether sentence falls above or below range Generally, if D wins on appeal and is then reconvicted, a more severe penalty may NOT be imposed on retrial (only if based on new, objective info of D's conduct occurring after first sentence) - but in trial de novo, increased punishment can result because a different court is rendering the sentence |
|
|
Punishment
|
8A - no cruel and unusual punishment (applicable to state via 4A)
Requirement: in order to comply, sentence must be proportional to the crime committed and sentences of other similarly situated criminals having conducted similar crimes Okay to do harsher sentences for repeat offenders NO imposition of death penalty for rape! D cannot be imprisoned because of inability to pay a fine doubling up inmates in one jail cell is fine conviction of individual because he is addicted to narcotics is cruel and unusual mandatory capital punishment for specified crimes is UNCONST - precludes consideration of mitigating factors |
|
|
Death Penalty
|
okay as long as court's review procedure affords procedural safeguards to prevent arbitrary or discriminatory sentencing
procedural safeguards: bifurcated trial (one jury determines guilt and one recommends sentence); evidence concerning aggravating circumstances must be presented BEFORE imposing death penalty; court must review mitigating factors BEFORE imposing death penalty; jury may not impose death sentence unless it is also permitted to return a verdict of guilty to a lesser-included offense supported by evidence; when capital D's future dangerousness is at issue, and only sentencing alternative to death is life imprisonment without possibility of parole, due process entitles D to tell jury he is ineligible for parole; there must be review procedure to prevent imposition of death penalty for arbitrary or discriminatory reasons disproportionate use of capital punishment on one race is okay execution of individuals who were under 18 at time of their crimes is NOT OKAY Execution of mentally retarded Ds is cruel and unusual |
|
|
Jury's role in punishment
|
there is no right to have a jury determine sentence
even death penalty may be imposed by judge acting alone or with jury advisement as to sentence (but judge cannot find fact of aggravating circumstance enough for death penalty by himself) state statute may NOT exclude from a jury all individuals who express some opposition to the death penalty - state MAY exclude all potential jurors who indicate that they would NEVER, under any circumstances impose the death penalty |
|
|
Appeal
|
Constitution does NOT guarantee right to an appeal - states may provide such a right by statute as long as access to appellate review is afforded in a nondiscriminatory manner
where state grants a first appeal to all individuals, such as an appeal as a matter of right, indigents must be provided with counsel because of EPC consequently, indigents are entitled on appeal to be provided free transcripts of trial proceedings recovery of defense costs is constitutional provided it is achieved in a nondiscriminatory manner - can get legal costs from someone who was indigent but can now pay following automatic first appeal, some jxs provide a second discretionary avenue of appeal - there, there is NO right to counsel for indigents OR right for writ of certiorari to SCOTUS following a reversal of a conviction on appeal, D CAN be retried - BUT it is prejudicial error and a violation of both due process AND double jeopardy to be tried for ANY crime MORE serious than crime for which D was convicted |
|
|
Habeas Corpus
|
following unsuccessful appeal, D may, in certain instances, collaterally attack lawfulness of his detention by filing writ of habeas corpus
Procedural considerations: D must prove unlawful detention by PREPONDERANCE OF EVIDENCE indigents have NO right to appointed counsel - this is a civil suit! to bring timely writ, D must be in custody, which includes those out on bail, on probation, or parole Although state prisoner may seek writ in either state or fed ct, following requirements must be satisfied to bring petition in fed ct: must show detention violates US Const - must have followed all state procedural rules at trial or been denied relief, absent a showing of cause for noncompliance and resulting prejudice; all available state remedies must have been exhausted; must show clear and convicing evidence of error; petitioner who had full and fair opportunity to raise 4A violation previously in state court will NOT be permitted to seek writ in fed court based on alleged allegation fed prisoners may bring habeas proceedings ONLY in fed ct - must show both cause as to why an objection was not made at trial to the alleged const violation AND resulting ACTUAL prejudice state may appeal granting of a writ, and D may be retried for same offense without violating double jeopardy! |
|
|
Prisoners' rights
|
test: whether restrictions are reasonably related to legit penological interests
|
|
|
Parole or probation
|
no fed const right to parole or probation exists. However, where state law provides for right to parole, prisoner denied parole must be granted notice of reasons for denial and opportunity to be heard
revocation of probation entitles prisoner to right to counsel if new sentence is imposed - otherwise, right to counsel only on case by case basis due process affords prisoner right to both prerevocation hearing and revocation hearing - at the latter, evidence may be presented and confrontation of witnesses is allowed, subject to discretion of court |
|
|
Other Specific Rights
|
Prisoners must have reasonable access to cts and legal counsel as well as some form of communication with the press
state may not refuse to provide prisoners with medical care prisoner must be given notice of forfeiture of property through certified letter addressed to him through at facility where he is confined |
|
|
Limits on Prisoner Rights
|
prisoners have no right to unionize
mail may be censored subject to strict guidelines, and letters to inmates from attorneys may be OPENED but NOT READ by prison authorities inmates have no right to provide legal services to fellow inmates private corp operating a correctional facility through a K is not subject to suit for allegedly violating a prisoner's const rights visiting regulations are usually viewed as reasonably related to legit penological interests and are, therefore, const |
|
|
Juveniles' Rights
|
juvenile offenders must receive due process under these safeguards:
right to written notice of charges right to counsel right to confront and cross-examine witnesses privilege against self-incrimination right to have guilt proved beyond reasonable doubt right not to be placed in jeopardy twice for same offense once adjudicated a delinquent Rights NOT extended to juvenile proceedings: right to jury trial right to bail right to public trial NO DEATH PENALTY IF YOU WERE UNDER 18 AT TIME OF CRIME |
|
|
Aliens' rights
|
alien's detention is limited to time reasonably necessary to accomplish that alien's removal from US
indefinite detention is NOT allowed |
|
|
Retroactivity of New Decisions
|
SCOTUS case creating a new const right is FULLY RETROACTIVE to ALL Ds whether case is pretrial, at trial, or in process of direct appeal
however, a collateral petitioner using habeas will receive benefit of new decision ONLY if crime itself is decriminalized OR prosecution was fundamentally unfair and new rule maximizes truth-finding function of trial |
|
|
Ex Post Facto Crimes
|
crime must be law at the time of the offense in order to punish D
NO retroactive criminal statutes, increasing punishment after commission of offense, removing defense that was viable at time of the offense; and applying rules of procedure or evidence retroactively if those rules would make it easier to convict D state may not enact statute that extends limitations period for crime when previously applicable limitation period has already expired |
|
|
Independent State Grounds
|
In accordance with 10A, all powers not expressly given to fed gov't by Const resides in states, so state courts, pursuant to own constitutions and cases interpreting their constitutions, can give to criminally accused GREATER procedural protections than are federally required
BUT if they do, they must indicate that such a decision is based on adequate and independent state grounds and must not entangle state and federal bases so in any state prosecution, a competent defense will make a separate set of solely state const args |
|
|
Self-Incrimination
|
criminal D need not be warned of right not to testify - response to question asked by gov't will constitute valid waiver of privilege
D may ask judge to instruct jury not to draw adverse inference from D's failure to testify when D pleads guilty, he does NOT waive 5A rights in the sentencing hearing, and sentencing judge may not draw adverse inferences from D's silence at sentencing testimony regarding acts for which applicable statute of limitations has run is NOT self-incriminating Once D takes stand and permits questioning on direct, he may be cross-examined regarding substance of his testimony - not total waiver, but enough for reasonable scrutiny by P |
