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341 Cards in this Set
- Front
- Back
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Con requirements binding on fed govt.
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1st 8As apply to fed govt. Most are binding on states through Due Process Clause of 14thA.
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Crim Pro Con rights binding on on states through 14thA
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1. 4thA proh/n against unreasonable searches & seizures & exclusionary rule.
2-3. 5thA privi against compulsory self-incrimination & proh/n against double jeopardy. 4-9. 6thA rights to speedy trial, pub trial, jury trial, to confront wits, to compulsory process for obtaining wits., to counsel for felony cases & in misdeams involv/g imprisonment. 10. 8thA proh/n against cruel & unusual punishment. |
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Con rights not binding on states
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1. 8thA right to indictment by grand jury for cap & infamous crimes
2. 8thA prohib/n against excessive bail. |
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Exclusionary Rule
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Doc that prohibits intro of evid obtained in violation of D's 4th, 5th & 6th A rights. Under the rule, unCon obtained evid is inadmissiable and all "fruits of the poisonous tree" must also be excluded.
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Fruits of the Poisonous Tree
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Generally, not only must illegally obtained evid be excluded but also all evid derived from exploitation of that evid.
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Exceptions to fruits of poisonous tree doc include
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1. fruits derived from Miranda violations
2. ind source 3. D's intervening act of free will 4. inevitable discovery 5. violation of knock & announce rule |
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Exclusionary rule does not apply to
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1. grand juries, civil cases & parole hearings
2. Good faith reliance on law or clerical error 3. Some "fruits" can still be used for impeachment of D when D takes stand at trial. Vol confession taken in violation of Mir & evidence obtained from an illegal search may be used to impeach D but not other wit stmts. 4. knock & announce rule violations |
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Harmless error test
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If illegal evid is admitted, a resulting convic/n should be overturned on appeal unless the govt can show beyond reasonable doubt the error was harmless.
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In habeas corpus proceeding in which D claims Con error, what must D show to be released?
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that the error had a substantial & injurious effect on jury's verdict. Petititon must be granted if judge is in grave doubt as to the harm.
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4th A provides
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people should be free from unreasonable searches & seizures by the govt.
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What constitutes seizure?
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occurs when reasonable person would believe that she is not free to leave or terminate an encounter w/ govt
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Arrest occurs
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when police take a person into custody against her will for purposes of crim prosecution or interrogation.
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Arrest must be based on
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probable cause.
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Probable cause for arrest consists of
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reasonable grounds to suspect that a person has committed or is commiting a crime. Amounts to more than a bare suspicion but less than evid that would jusitify a conviction. Must be shown before an arrest warrant can be issued.
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Is arrest warrant required before police make felony arrest in public place?
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No police may make felony arrest w/o warrant if reasonable grounds to believe felony has been committed & person did it
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Is arrest warrant required before police make misdemeanor arrest?
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Not if misdemeanor occurred in police presence
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Warrant requirement for home arrest
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Nonemergency arrests in D's home require a warrant.
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For investigatory detentions (stop & frisk) to stop police must have
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reasonable suspicion of crim activity supported by articulable facts (i.e. not merely a hunch or vague suspicion)
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When may govt frisk?
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when police have reasonable suspcion the detainee is armed & dangerous
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Duration & scope of Terry stop
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1. relatively brief
2. no longer than necessary to conduct limited investigation 3. police can require ID 4. if reasonable suspicion, brief prop seizures valid |
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Can an investigatory detention develop into an arrest
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Yes, if officer develops probable cause
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Auto stops
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Stopping an auto is a sezure under 4thA. Gen. police may not stop a car unless they have at least reasonable suspicion that law has been violated
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Roadblocks can be set up w/o ind. suspicion if
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1. meets certain law enforcement needs
2. stops are based on some neutral & articulable stand 3. designed to search purposes closely re/d to automobiles & their mobility. (e.g. road block to test for drunk drivers b/e of pervasiveness of drunk driving prob) |
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Can police set up a checkpoint to look for direct evid of ordinary crim wrongdoing e.g. look for evid of illegal drugs?
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No. B/e purpose is not closely enough re/d to a prob w/ people driving cars.
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When may police use deadly force to apprehend a suspect?
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Only if deadly force is reasonable under the circumstances (e.g. where a suspect poses a danger to his own life or the lives of thers)
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Does the 4thA prevent govt from seizing (by subpoena) a person to testify before a grand jury?
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No grand jury appearance is not w/in 4th A protection
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Under what circumstances may police bring a suspect to the station for ?ing & fingerprinting?
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full probable cause for arrest
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If police have a valid warrant to search for contraband, may they detain the occupants of the premises during the search?
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Yes, the search warrant for contraband allows the police to detain occupants during the search.
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Can police detain a suspect preventing him from going home while they get a search warrant to search his home?
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Yes if they have probable cause to belief has has contraband hidden at home, police may detain suspect for a reasonable time to prevent him from destroying the evid while they obtain a search warrant.
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Can police stop a vehicle based on a reasonable belief a traffic law has been violated even if their ulterior motive is to investigate whether some other law has been violated--for wh they lack reasonable suspicion?
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Yes
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During an auto stop, under what circumstances may an officer frisk the occupants?
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to search for weapons if he reasonable believes they are armed & he may also search the passenger compartment for weapons
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During an auto stop, may police order the occupants to get out the car?
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Yes
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Does an auto stop consist of seizure of the passenger as well as the driver?
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Yes wh means passengers have standing to raise a wrongful stop as a reason to exclude evid found during the stop.
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Gen approach to evid search & seizure
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Was search by govt?
If so, did search violate D's REP? If so, did police have a warrant? If not, was search w/in a warrantless search exception? |
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What is the threshold requirement for a search to be analyzed under the 4th A?
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govt ac/n
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Can a search carried out by someone other than the police be given 4th A status?
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yes, searches by govt agencies such of public health inspectors but not searches by private persons--including private security guards.
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Standing
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D cannot challenge a government search and seizure unless it violates his own reasonable expectations of privacy. A person has standing to object to a search or seizure when he has a reasonable expectation of privacy in the area to be searched or the items seized. A person has a reasonable expectation of privacy in things which he owns or has a right to possession. Determination of this is made on the totality of the circumstances.
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Person has REP any item
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1. He owned or had a right to possession of the place searched
2. Place was in fact his home 3. He was overnight guest of owner of place searched |
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Does person have REP in things held out to the public?
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No
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Things held out to the public include:
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sound of one's voice
handwriting smell of one's lugguge areas outside home & curtilage garbage left for collection |
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Does it violate a person's REP for police to use technology not available to most people to enhance info obtained from someone's home?
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Yes.
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What is curtilage?
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Building & surrounding areas close in proximity to a dwelling
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4 factors to determine curtilage
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1. how close to residene
2. ? enclosure or fence 3. use of the area 4. if resident tried to prevent observation of area |
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Open fields doc
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areas outside of the curtilage are held out to public
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In order for the police to conduct a search (violate person's REP) they must
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have a search warrant unless it falls w/in one of 6 exceptions to the warrant requirement.
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Under what cond/ns will a search warrant be issued?
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only if probable cause exists to believe that seizable evid will be found on the person or premises at the time the warrant is executed.
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Probable cause for a search means
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reasonable ground to suspect that a place contains specific items connected w/ a crime--amounts to more than a bare suspicion but less evid required to justify a conviction.
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Requirements of a warrant
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1. issued by neutral & detached magistrate
2. who has made an ind assessment that probable cause exists that seizable evid will be found on the person or premises at the time the warrant is executed. 3. Officers must submit to a magistrate an affadavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officer's conclusion 4. describe w/ particularity the place to be searched & items seized |
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Affadavit based on use of informers must
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meet totality of circumstances test under wh the affidavit may be sufficient even though the reliability & credibility of the informer or basis for knowledge are not established.
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If informer's tip is used to establish probable cause, must the informer's identity be revealed?
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No. Under the totality of the circumstances test, the informer's identity does not need to be revealed.
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D can invalidate search warrant by establising
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false stmt, intentionally or recklessly included in affadavit AND which was material to probable cause. ALL THREE MUST BE PRESENT!
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Good faith exception
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Evid obtained in reasonable reliance on a facially valid warrant may be used in spite of ultimate finding it was not supported by probable cause.
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How must a warrant describe the place to be searched & items to be seized?
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w/ reasonable precision on the face of the warrant. Otherwise, the warrant is unCon.
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May a warrant be obtained to search premises belonging to nonsuspects?
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Yes as long as there is probable cause to believe that evid will be found there.
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Explain requirements for a magistrate who issues a search warrant
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govt or judicial official who is neutral & detached--meaning 3rd party objective status, not an arm of the police dept. i.e. the state attorney gen is not detched.
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Execution of warrant
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1. only by police
2. w/o unreasonable delay 3. knock & announce (unless dangerous or futile) 4. police may seize contraband not specified |
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W/ valid search warrant for premises, can police search persons found there who were not named in the warrant?
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No. Police can detain persons during a proper search but search warrant does not authorize them to search persons found there who were not named.
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Valid Warrantless Searches
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1. Search incident to arrest
2. Auto exception 3. Plain View 4. Consent 5. Stop & Frisk 6. Hot Pursuit |
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Threshold requirement for warrantless search incident to arrest
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Arrest must be constitutional; based on probable cause to believe law has been violated & that it meets other consitutional requirements. If arrest is unconstitutional, any search incident is also unconstitutional.
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3 types of searches incident to arrest wh do not require a warrant
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1. compartment of auto incident to arrest
2. search incident to incarceration 3. search incident to impoundment |
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Police may search the passenger compartment of an auto incident to arrest only if at time of search
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1. arrestee is unsecured & still may gain access to the interior of the car
2. police reasonably believe that evid of the offense for wh the person was arrested may be found in the vehicle |
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In a search incident to lawful custodial arrest, what may police search?
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To protect officers and prevent destruction of evid, police may search a suspect's person and area w/in his immediate control, usu. re: to as wingspan.
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Search incident to incarcertaion means
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police can make inventory search of arrestee's belonging pursuant to established procedure.
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Under "auto exception" to warrant rule
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police may search a vehicle if they have probable cause to believe the vehicle contain frutis, evid or instrumentalities of crime.
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Under auto exception to the warrant requirement, what parts of the vehicle may the police search?
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the whole vehicle & any container that might reasonable contain the item for wh they have probable cause to search.
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If police have probable cause to search an auto, can they tow the vehicle to station & search later?
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yes
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Under the auto exception to the warrant requirement, may police search the inside a small suitcase w/in the car?
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Depends on what they have probable cause to believe the auto contains. Yes, if they are looking for illegal drugs. No if they are looking for illegal alliens.
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Under the auto exception to the warrant requirement, may police search extend to a passengers belongings?
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yes
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If police have probable cause only to search a container in a vehicle, may they search other parts of the auto?
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no.
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Under auto exception to warrant requirement, what is permissible scope of search of an impounded vehicle?
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police may search entire car--including closed containers
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Plain view: Police may make a warrantless seizure when they:
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1. Are legitimately on the premises
2. Discover evid, fruits or instumentalities of crime or contraband 3. See such evid in plain view AND 4. have probable cause to believe (immediately apparent) item is contraband |
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Threshhold requirement for police making a warrantless seizure under the plain view exception
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Police must be where the officer has a lawful right to be--i.e. public sidewalk or in a home executing a warrant.
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Consent exception to warrant requirement requires
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Vol & Intelligent consent
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Under the consent exception to a warrantless search, must the person giving it have to know they have a right to w/ hold consent
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No
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Under consent exception to the warrant requirement, what is the scope of the search
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Scope is limited to the scope of the consent; but generally scope extends to all areas to wh a reasonable person under the circumstances would believe it extends.
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Consent exception & authority to consent
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Any person with apparent equal right to use or occupy the property
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Stop & Frisk exception to warrant requirement
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Police can stop a person w/o probable cause if police has ARTICULABLE & REASONABLE SUSPICION of crim activity. If officer also reasonable believes that the person may be armed & presently dangerous, police may conduct a protective frisk.
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Scope of intrution of stop & frisk
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1. frist limited to outer clothing.
2. person can be ordered out of car & police can search area of car where weapon may be found. 3. Based on plain feel, police can reach into person's clothing & seize item if a weapon or contraband is detected & such items are admissible as evid. |
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Hot pursuit exception to warrant requirement means
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police in hot purusit of a fleeing felon may make a warrantless search & seizure & may even pursue the suspect into a private dwelling.
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Evanescent evid exception of warrant requirement means
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police may seize w/o a warrant evid likely to disappear before a warrant can be obtained.
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"Other emergencies" exception to warrant requirement means
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police can enter premises w/o a warrant to address emergencies that could affect health or safety.
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List some admin inspections which do not require a warrant
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1. seizure of contaiminated food
2. highly reg industries like booze, guns, strip mining 3. inventory searches of arrestees 4. airline passengers prior to boarding 5. searches of parolees & their homes--even w/o grounds for the search--at least if stat authorizes it 6. searches of govt employees' desks & file cabinents where scope is reasonable & there is work re/d need 7. drug testing for RR employees involved in accidents, applicants for customs jobs wh involve drug interdic/n, pub school students who participate in extra circular activies. |
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Public school searches
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Warrant or probable cause not required--only reasonable grounds.
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Criteria to find pub school search reasonable
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1. if moderate chance of finding evid of wrongdoing
2. if methods are reasonably re/d to objs of search 3. if search is not excessively intrusive |
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Does 4thA apply to searches in foreign countries?
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No & involving an alien at least where alien has no connec/n to US. 4thA did not bar admission of evid found in warrantless police search of alien's home in Mex.
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Does 4thA apply to searches at the border?
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No warrant is necessary for border searches. Neither citizens nor noncitizens have 4thA rights at the border.
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Under what circumstances may roving border patrols inside the US border stop a vehicle?
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If officer reasonably suspects vehicle contains illegal alliens.
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May border officals stop venicles at fixed checkpoints inside the border?
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Yes & can disassemble the vehicle even w/o reasonable suspicion.
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May border searches include opening of international mail?
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yes when postal authorities have reasonable cause to suspect the mail cotnains contraband.
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Immigration enforcement ac/ns may include
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1. "factory survey" of a work force to determine citizenship
2. evid obtaining in violation of 4thA may be used in a civil deportation hearing. |
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Can officials detain a traveler if they suspect the person is carrying contraband in his stomach?
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yes if officials have reasonable suspcion
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Wiretap--4th A search
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Yes, because it violates REP
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Requirements for warrant auhorizing wiretap (7)
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1. prob cause of cime
2. suspects to be heard named 3. conversations to be listened to particularized 4. specific time frame 5. for renewal, cont prob cause 6. end when conversation sought heard 7, return made to court |
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What are exceptions to rule that wiretapping constitutes a search under the 4th A?
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1. speaker assumes the risk person to whom he is talking is an informer wired for sound or taping the conversation.
2. Speaker has no 4th A claim if he makes no attempt to keep a conversation private. |
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What are pen registers?
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devices that record only phone numbers that are dialed from a phone
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Do search of pen registers falls under 4thA?
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No but by stat, mudicial approval is required before a pen register may be used.
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Issue: evid obtained by methods wh offend a sense of justice or shock the conscience
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inamissible under the Due Process Clause. Reasonableness of searches w/in person's body is determined by balancing society's need against the magnitude of the intrusion.
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Under what Con. As are D' confessions or incriminating stmts analyzed?
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4th--searches & seizures
5th--testimonials self incrimination 6th--right re: assistance of counsel 14th--protections against invol confessions |
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14thA & analysis of confessions
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Under Due Process Clause, confessions must be vol--assessed by totality of circumstances
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14th A & ? voluntariness
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1. must be official complusion
2. harmless error test applies |
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6th A & D's right to counsel
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1. at all critical stages of crim prosecution
2. after adversary judicial proceedings have begun |
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Stages when 6th A right to counsel applicable
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Custodial police interrogation, Post Indictment interrogation, Pre hearing to deter prob cause to prosecute, Arraignment, Post charge line up, Guilty Pleas & Sentencing, Felony trials, Misdem trials imposing imprisonment, Overnight trial recesses, Appeals as a matter of right
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Stages at which 6th A right to counsel does not apply
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Blood sampling, Taking voice or handwriting samples, Precharge lineups, Photo ID, Prelim hearings to det prob cause to detain, Brief recesses during trial, Discrim appeals, Parole & probation revocation hearings, Post convic proeceedings
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Waiver of 6th A right to counsel must be
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vol, knowing, intelligent
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If 6th A right to counsel has attached re: one charge, can he be ?ed w/o counsel re: another charge?
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Yes, offenses must be unrel/d & uncharged
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Test for diff offense re: right to counsel
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2 crimes considered diff if each requires proof of an additional element that the other does not require.
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Remedy for violation of 6th A right to counsel
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Nontrial proceedings--harmless error
Trial--auto reversal of conviction |
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5th A (applicable to state through 14thA provided
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no person shall be compelled to be wit against himself
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Under what Con Am does a failure to give Miranda warnings apply?
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5th A privilege against compelled self incrimination
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Miranda warning
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1. right to remain silent
2. anything you say may be used against you in court 3. you have the right to the presence of an attorney 4. if you can't afford an attorney, one will be appointed for you if you desire. |
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When is Miranda warning applicable?
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when police take anyone into custody, accusing person of crime; Miranda warnings must be given prior to interrogation by the police.
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Can Miranda warning purge the taint of an illegal arrest?
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No not by themselves. SC has held that the Mir warnings could not automatically nor by themselves protect an accused's 4thA rights. Whether a confession was freely given or improperly coerced has to be determined on case by case basis looking at factors such as confession's proximity in time to arrest; intervening circumstances, and, particularly, the purpose and flagrancy of the official misconduct.
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Are Miranda warning necessary if detainee does not know he is being interrogated by a govt agent?
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generally No
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Do Miranda requirements apply to an uncharged wit testifying before a grand jury?
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No even if wit was compelled to be there by subpeona
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What is custody requirement for Miranda warnings?
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when person's freedom of ac/n if denied in a sig way based on objective manifestation of circumstances
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Interrogation requirement
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words or conduct by police likely to elicit a response
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What might outweigh a D'sright to Miranda warnings?
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immediate threats posed to public safety
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Are routine booking questions covered by Miranda rule?
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No
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Are Miranda warnings required before spontaneous stmts are made by detainee?
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No
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Does Miranda apply to ?ing by informant whom suspect does not know is working for police?
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Gen. no, because warning are intended to offset coercive natture of police dominated interrogation.
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Effect of D doing or saying nothing in response to Mir warnings
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Court will presume neither a waiver nor that D has chosen to remain silent or assert right to an attorney. Police may continue to ?
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Effect of D waiving rights in response to Mir
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Govt must show waiver vol, knowing & intelligent assessed by totality of circumstances.
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Effect of D invoking right to remain silent in response to Mir warnings
IS THERE A PARTICULAR TIMING WITHIN WHICH DEF MUST INVOKE HIS MIRANDA RIGHTS? |
To be effective, detainee's indication must be explicit, unambiguous & unequivocal. Police must scupulously honor & not bagger. The SC has allowed later ?ing on an unrel/d crime.
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Effect of D invoking right to counsel in response to Mir warnings
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If detainee UNAMBIGUOUSLY indicates he wishes to speak to counsel, all ?ing must cease.
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After D asserts his right to counsel but then changes his mind, when can police reinstitute ?ing?
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1. When D vol, knowingly & intelligently waives his right to counsel OR
2. detainee is released from custodial interrogation & 14 days have passed |
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Effect of violation of Miranda rules
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Gen, evid obtained in violation of Mir is inadmissible at trial under the exclusionary rules.
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Can confessions made in violation of Mir rules be used in D' trials?
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Only to impeach D's trial testimony but not as evid of guilt
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Public safety exception to Mir warnings
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SC has allowed interrogation w/o Mir where it was reasonably prompted by pub safety concerns.
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Bases for attacking pretrial identifications
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1. 6th A right to counsel
2. Due Process standard |
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Does suspect have a right to counsel at any post charge lineup or showup?
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Yes
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Does suspect have a right to counsel at photo IDs?
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No
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Does suspect have a rights to counsel when police take physical evid (i.e. fingerprints or handwriting)?
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No
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D can attack an identification as denying due process if
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1. unnecessarily suggestive &
2. substantial likelihood of misidentification |
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Remedy for unCon ID
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exclusion of the in-court ID
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When can a wit make an in court identification despite existence of an unCon pretrial identification?
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when the in court identification has an independent source. Most common ind source is opportunity to observe at time of the crime.
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What is the procedure for determining the admissibility of ID evid?
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should be done at a suppression hearing in absence of the jury, but exclusion of jury is not constitutionally required.
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In suppression hearing to determine the admissibility of ID evid, govt bears burden of proving
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1. counsel was present
2. accused waived counsel or 3. there is an ind source for the ID. |
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In suppression hearing, D must prove
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alleged due process violation.
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Can D's freedom be restricted before trial?
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Yes but only upon finding of probable cause.
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If probable cause to detain not already found (e.g. grand jury or arrest pursuant to a warrant), what procedure can be used to detain D before trial?
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preliminary hearing
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When must preliminary hearing be held?
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w/in reasonable time (e.g. 48 hrs) if there are any significant constraints on an arrestee's liberty (jail, bail but not release on recognizance)
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Describe a preliminary hearing
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informal, nonadversarial proceeding
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What is bail?
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security such as cash or bond esp security required by a court for the release of a prisoner who must appear at a future time. Most state constitutions create a right to be released on bail unless charge is a capital one.
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What ConAm provides for bail?
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8th but SC has never held 8thA provision for bail applies to the states
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What arguement does D have against state for denial of bail?
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Since SC has never held 8thA provision for bail applies to the states, 8thA NOT a good argument. Since most states provides for bail, denial of bail will violate due process & detainees must be given an opportunity to prove eligibility
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When can D appeal refusal to grant bail or excessive bail?
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immediately, but SC has upheld portions of fed Bail Reform Act wh allow arrestees to be held w/o bail if they pose a danger or would failt to appear.
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If found incompent to stand trial, how long can state hold D against his will?
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no longer than state's standard for commitment. Otherwise there is a denial of equal protection
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Is there any remedy for denial of a preliminary hearing
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no but evid discovered as result of the unlawful detention can be excluded under the exclusionary rule
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Has 5th A right to grand jury been incorporated through 14th A to states?
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No
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When states do not use grand juries, what process do they use to charge D with crime?
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filing an information--wh is a written accusation of the crime prepared & presented by prosecuter (most Western states)
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Does D have a right to notice of grand jury proceedings?
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no; they are conducted in secret
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Does D have a right to confront wits against him in a grand jury proceeding?
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no
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Does D have a right to present evid before a grand jury?
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no
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Does a wit subpoenaed to testify before a grand jury have the right to receive Miranda warnings?
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no
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Does wit before a grand jury have a right to receive warnings that he is a potential D?
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no
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Do wits have a right to an attorney at a grand jury proceeding?
|
no
|
|
|
May grand jury base its indictment on evid that would be inadmissible at trial?
|
yes
|
|
|
May D have the indictment quashed on ground that it is based on illegally obtained evid?
|
no
|
|
|
Does D have a right to challenge a subpoena on 4thA grounds that grand jury lacked probable cause to call a wit for ?ing
|
no
|
|
|
Can D challenge a conviction resulting from an indictment hand down by a grand jury from wh members of a minority ground were excluded?
|
yes, conviction will be reversed w/o regard to harmlessness
|
|
|
Major diffs b/n grand juries & crime trials
|
1. D has no right to have counsel present during his grand jury testimony
2. Grand jury can consider evid that would be inadmissible at trial 3.D must appear if called but he can refuse to ans on grounds it might incriminate him. |
|
|
About the only defect sufficient to quash a grand jury indictment is
|
exclusion of minorities from grand jury
|
|
|
What ConA guarantees D right to a speedy trial?
|
6thA
|
|
|
Determination of whether D's 6thA right to speedy trial has been violated is made by
|
evaluating the totality of the circumstances
|
|
|
Factors considered when evaluating totality of circumstances around delay denial of speedy trial?
|
1. length of delay
2. reason 3. whether D asserted right 4. prejudice to D |
|
|
What is remedy for denial of right to speedy trial?
|
dismissal w/ prejudice
|
|
|
When right to speedy trial attaches
|
when D arrested or charged
|
|
|
Prosecution has duty to
|
disclose exculpatory evid. Failure to do so violates due process & provides grounds for reversing conviction
|
|
|
Does prosecutor's failure to disclose exculpatory evid to D have to be willful?
|
No, whether willful or not, failure to disclose violates D's rights under the Due Process Clause
|
|
|
To reverse conviction for prosecutor's failure to disclose exculpatory evid, D must prove
|
1. evid is favorable to him b/c it either impeaches or is exculpatory &
2. prejudice has resulted (resonable probablity outcome of case would have been diff) |
|
|
Difference b/n incompetency to stand trial & insanity def
|
Insaity is a def to crim charge based on D's mental cond/n at time he committed the crime. Incompetency to stand trial is not a def to charge but a bar to trial--based on D's mental cond/n at the time of trial.
|
|
|
Under due process stand, D is incompetent to stand trial if D
|
1. lacks a rational as well as factual understanding of the charges & proceedings OR
2. lacks PRESENT ability to consult w/ her attorney w/ reasonable degree of understanding |
|
|
If D has successfully asserted insanity def, can state confine him to a mental hospital? How long?
|
yes & term can be longer than incarcertation for the offense. However, D cannot be indefinitely committed after regaining sanity merely b/e he is unable to prove himself not dangerous to others.
|
|
|
Who bears the burden of proving incompentency to stand trial
|
State may place on D burden to prove incompentency by preponderance of evid, but requiring D to show incompetency by "clear & convincing" evid is unCon.
|
|
|
What happens if there is pretrial publicity?
|
Excessive pretrial publicity may be prejudicial to D & require change of venue or retrial
|
|
|
Right to fair trial guaranteed by
|
6thA & 14thA
|
|
|
Right to fair trial includes
|
1. right to public trial
2. right to unbias judge 3 right to have jury free of unfair influences 4. other due process rights such as right ot freedom from trial disruption |
|
|
When will court grant separate trials to co-defendants?
|
6thA affords crim Ds a fair trial. If either co-D is unfairly prejudiced at any stage, a right to severance may be granted. If one confesses and implicates the other, they are entitled to sep trials unless the incriminating parts of the confession can be adequately deleted. The court is more likely to allow severance if the two defendants wage very different, conflicting defenses.
|
|
|
Does D's right to public trial include public pretrial proceedings?
|
yes presumptively so though pre trial suppression hearings may be closed if party seeking closure has overriding interest wh may be prejudiced by disclosure.
|
|
|
Does the press & public have a right to attend the trial itself?
|
yes, under the 1st Am even when def & prosecution agree to close it.
|
|
|
May the state permit televising crim proceedings over D's objection?
|
yes
|
|
|
Example in wh biased judge violates due process
|
if judge is shown to have actual malice against D or $ interest in guilty verdict.
|
|
|
Must trial judge be a lawyer?
|
Not in a minor misdemeanor prosecution but for serious crimes, judge probably must be law trained.
|
|
|
What other due process violations (besides right to public trial & unbias judge) fall under right to a fair trial?
|
1. trial conducted in way that jury did not give evid reasonable consider/n
2. state compels D to stand trial in prison clothes 3. state compels D to stand trial or attend penalty phase visibly shackled (unless court finds the shackling justified by concerns of security or excape) 4. jury is exposed to influence favorable to prosecution 5. bad faith destruction of esculpatory evid by police |
|
|
Right to trial by jury is guaranteed by
|
6th A applied to states through 14thA
|
|
|
Do juveniles have right to jury trial?
|
No.
|
|
|
When does D have right to trial by jury?
|
for serious offenses for which D can get more than 6 months imprisonment.
|
|
|
In civil contempt proceedings, does D have a right to jury trial?
|
no
|
|
|
In crim contempt proceedings, does D have a right to jury trial?
|
yes if cumulative penalties total more than 6 mos--although for criminal contempt during trial, penalties may aggregate more than 6 mos w/o jury trial
|
|
|
Can judge impose probation for criminal contempt w/o jury trial?
|
yes for up to 5 yrs as long as probation revocation would not result in imprisonment for more than 6 months.
|
|
|
Is there a Con right to jury of 12 persons?
|
No but must be at least 6 to satisfy Con right to trial by jury
|
|
|
Has SC upheld conviction when juries were not unanimous?
|
Yes but probably would not approve an 8-4 verdict. 6 person juries must be unanimous.
|
|
|
What is venire?
|
panel of persons selected for jury duty from where jurors are to be chosen
|
|
|
As for jury selection, what right does D have?
|
to have jury selected from X section of community
|
|
|
In order to prove jury trial right violated by jury selection what must D show?
|
underrepresentation of distinct & numerically sig group in the venire
|
|
|
Does D have a right to proportional representation of all groups on his particular jury?
|
no
|
|
|
Steps to attack preemptory strikes on equal prot/n basis
|
1. D must show facts or circumstances raising inference strike was based on race or gender
2. UPON SUCH SHOWING, prosecutor must come forward w/ race/gender neutral explanation 3. Judge makes determination if prosecutor's explanation was sincere or pretext for purposeful disc/n. |
|
|
Death penalty & right to impartial jury
|
1. D is entitled to voir dire questioning specifically directed towards race if race is bound up in case or if D is accused of an interracial capital offense.
2. Juor's views on death penalty must not impair performance of his duties incl. following instructions re/d to mitigating circumstances. |
|
|
What happens if a death sentence is imposed by a jury from wh a juror was improperly excluded due to opposition to the death penalty?
|
conviction is subj to automatic reversal
|
|
|
If jury is to decide whether D is to be sentenced to death, what must D be allowed to ask potential jurors?
|
if they would automatically give the death penalty upon a guilty verdict.
|
|
|
What if a juror says he would automatically give the death penalty upon conviction?
|
He must be excluded, b/e he is deemed unable to perform his duties in accordance w/ instructions as to mitigating circumstances.
|
|
|
Is there a Con violation when D uses a peremptory challenge to exclude a juror whom the court should have excluded for cause but did not?
|
no
|
|
|
Are inconsistent verdicts (e.g. finding D guilty & co-D innocent on same evid) reviewable?
|
no
|
|
|
When must a decision about sentence enhancement be submitted to the jury?
|
if law provides sentence may be enhanced beyond statuory max if additional facts (other than prior conviction) are proved beyond reasonable doubt.
|
|
|
What test is used to decide whether to overturn a sentence for failure to submit a sentencing factor to the jury?
|
the harmless error test is applied.
|
|
|
May judges rather than juries decide whether sentences for multiple crimes are to run consecutively or concurrently?
|
yes, state legislature may give these decisions to judges rather than juries but decisions must be based on facts of the case.
|
|
|
Right to counsel guaranteed under
|
5thA & 6thA
|
|
|
Remedy for denial of right to counsel at trial
|
reversal of conviction
|
|
|
Test used to determine remedy for denial of right to counsel for nontrial denials
|
harmless error test applied
|
|
|
Whether right to counsel has been denied in misdem cases depends on
|
whether D's conviction involved any jail time.
|
|
|
D has right to defend himself if
|
1. judge determines waiver of counsel is knowing & int.
2. judge determines D's emotional & psychological state render D competent to proceed pro se 3. but not on appeal |
|
|
May state seek reimbursement from those convicted Ds who later become able to pay?
|
yes
|
|
|
To prove ineffective assit of counsel, D must prove
|
1. deficient performance by counsel AND
2. but for deficiency, result of proceeding would have been diff. 3. D must point out specific deficiencies--not just claim of inexperience or lack of time, etc. |
|
|
Examples of circumstances not constituting ineffective assistance of counsel
|
trial tactics & failure to raise Con defense that is later invalidated.
|
|
|
Is joint representation of crim Ds invalid?
|
No not per se.
|
|
|
What result if attorney advises court of conflict of interest in representing 2 Ds and court refuses to assign separate counsel?
|
D is entitled to automatic reveral
|
|
|
Does a D have a right to joint representation w/ his co-D?
|
no, not if govt can show a potential conflict of interest
|
|
|
When D has made a preliminary showing that he plans on using the insanity defense, must the court provide a psychiatrist to help w/ prep of defense?
|
yes
|
|
|
Does the right to counsel prohibit seizure of drug $ where D was going to use such $ to pay an attorney?
|
no seizure of funds Con.
|
|
|
May D be sequestered from attorney during short breaks?
|
yes (15 mins as opposed to overnight)
|
|
|
Does D have a right to consult w/ attorney while testifying?
|
no
|
|
|
Right to D to confront wits against him guaranteed by
|
6th A
|
|
|
Is 6th A right of crim D to confront adverse wits absolute?
|
No. Face to face not required when preventing such confrontation serves an impt pub purpose (e.g. protecting child wits from trauma)
|
|
|
May judge remove a disruptive D if it prevents D from exercising his right to confront wits against him?
|
Yes, right not absolute
|
|
|
May D voluntarily leave courtroom during trial if it prevents him from confronting wits against him?
|
Yes, right not absolute.
|
|
|
If 2 Ds tried together, can one D's confession implicating the other be used?
|
No, right of confrontation prohibits use.
|
|
|
Exceptions to rule that co-D's confession cannot be used
|
1. if all portions about other D can be eliminated OR
2. Confessing D takes the stand OR 3. Confession is being used to rebut D's claim that his confession was obtained by coercion. |
|
|
What is testimonial Evid?
|
in or out of court stmts made to prove the truth of the matter asserted--to prove past acts. Stmts made in response to police ?s re: emergency are nontestimonial.
|
|
|
What Con amendment contains the confrontation clause?
|
6th
|
|
|
What does confrontation clause provide?
|
All crim Ds shall enjoy the right to be confronted with the wits against him. Gen. this right is face-to-face with wits who are offering testimonial evidence against the accused in the form of cross-examination during a trial. 14thA makes the right to applicable to the states.
|
|
|
Under Confrontation Clause, prior testimonial stmt of wit
|
may not be admitted unless
1. declarant unavail 3. D had opportunity to X examine D at time stmt made |
|
|
Are results of forensic lab testing testimonial?
|
Yes so lab result is not admissible at trial under the Confrontation Clause unless the tech who produced the test report is unavailable & D had opportunity to Xexam.
|
|
|
How can D forfeit a Confrontation Clause claim?
|
by a wrongdoing intended to keep the wit from testifying (e.g. stmt to police by victim later killed by D cannot be admitted absent evid that D murdered the victim to keep her from testifying)
|
|
|
Burden of proof required of prosecution in all crim cases
|
Due process clause requires state prove guilt beyond a reasonable doubt.
|
|
|
May state impose burden of proof on D re: affirmative def such as self def or insanity
|
yes
|
|
|
Presumptions that shift burden of proof to D violate
|
14thA requirement that state prove every element of crime beyond a reasonable doubt.
|
|
|
Standards for taking D's plea
|
Judge must determine plea vol & intelligent--includes assurance that D understands:
1. charge & elements of crime 2. max penality & stat min 3. he has right not to plead guilty 4. in pleaing guilty, D waives his right to trial |
|
|
Must judge personally explain the elements of ea charge to D on the record?
|
No it is suffcient that the record reflects the nature of the charge & elements were explained to D by his own attorney
|
|
|
What is remedy for failure to meet the standards for taking a plea?
|
W/drawal of plea & pleading anew.
|
|
|
Bases for attack on guilty plea after sentence
|
1. plea invol
2. lack of juris/n 3. ineffective counsel |
|
|
Plea bargain is
|
a negotiated agreement b/n prosecutor & D wherby D pleads guilty to lesser offense or to one of multiple charges in exchange for some concession by prosecutor or more lenient sentence or dismissal of other charges
|
|
|
Enforcement of plea bargain
|
trend toward K view. Will be enforced against D & prosecutor but not judge
|
|
|
What are collateral effect of guilty pleas?
|
1. may be used as a conviction in other proceedings when relevant (e.g. as basis for sentence enhancement)
2. neither admits the legality of incriminating evid nor waives 4thA claims in a subsequent civil damages ac/n |
|
|
Does D have right to counsel during sentencing?
|
yes.
|
|
|
Does D have a right to confrontation or xexam during sentencing?
|
not for the usual sentence, but where magnified sentence is based on a statute that requires new finding of fact to be made (e.g. D is mentally ill) those facts must be found in a context that grants a right to confrontation & Xexamination.
|
|
|
Issue: D's right during capital sentencing
|
D in dealth penalty case must have more opportunity for confrontation than need be given a D in other sentence proceedings.
|
|
|
Where a greater punishment is imposed on D who has been reconvicted after a successful appeal than was imposed at the 1st trial, the judge must
|
set forth in the record the reasons for the harsher sentence--to ensure D is not vindictively penalized for exercising his right to appeal.
|
|
|
Does the judge need to give reasons for a greater sentence if it was imposed upon a de novo trial?
|
no
|
|
|
Does the judge need to give reasons for a greater sentence on appeal if it was imposed by jury sentencing?
|
no unless 2nd jury was told of 1st jury's sentence.
|
|
|
Prohibition against cruel & unusual punishment guaranteed by
|
8th A
|
|
|
Included in cruel & unusual punishment is one wh
|
is grossly disproportionate to seriousness of offense.
|
|
|
Do state appeallate courts have to compare the death sentence imposed in a case under appeal w/ other penalties imposed in similar cases?
|
No
|
|
|
Rule re: statutory scheme giving death penalty for murder
|
1. must give judge or jury gives reasonable discretion, full info re Ds & guidance in making decision
2. must not be vague 3. must allow consider/n of all mitigating evid |
|
|
If death penalty for murder is based on aggravating factor of D's prior conviction, what happens if the prior conviction is invalidated?
|
Sentence must be reversed.
|
|
|
What is standard of review for death sentence if affected by a vague or otherwise unCon factor?
|
Death sentence can still be upheld but only if all aggravating & mitigating factos involved are reweighed & death is still found to be appropriate
|
|
|
Rule re: death penalty for rape
|
8thA prohibits imposition of the death penalty for rape of an adult woman or a child if the rape was neither intended to nor did cause death.
|
|
|
Rationale for not imposing the death penalty for rape
|
penalty is disproportionate to the offense.
|
|
|
Rule re: death penalty for felony murder
|
Unless the felony murderer's participation was major & he acted w/ reckless indifference to the value of human life, it is unCon to impose death penalty
|
|
|
Can the death penalty be imposed if prisoner insane at time of execution?
|
No 8th A prohibits even if he was sane at time of crime
|
|
|
Can the death penalty be imposed for a prisoner who is mentally retarded?
|
No 8thA prohibits death penalty of someone who is mentally retarded.
|
|
|
Can the death penalty be imposed for a person who was under 18 y/o at time of crime?
|
No 8th A prohibits death penalty for someone who was a minor at time of crime.
|
|
|
Does the possibility the lethal injection protocol MIGHT be administered improperly, causing the condemed pain make the punishment cruel & unusual?
|
No. It would be cruel & unusual only if condemned can prove there is a serious risk of inflicting unnecessary pain or that an alternative procedure is feasible & reduces the risks of pain, etc.
|
|
|
Does a statute making it a crime to have a given "status" violate the 8thA prohibition against cruel & unusual punishment?
|
Yes, b/e it punishes mere propensity to engage in dangerous behavior. But it is permissible to make criminal specific behavior (e.g. driving while intoxicated).
|
|
|
While determining a sentence, can the judge take into account a belief that D committed perjury while testifying on his own behalf?
|
yes
|
|
|
Issue: aggregate imprisonment exceeds max period fixed by statute & results directly from invol nonpymt of fine or court costs
|
impermissible discrimination is created, and it violates the Equal Protection Clause
|
|
|
Is thee a fed Con right to appeal?
|
No
|
|
|
Issue: an ave of post conviction review is provided by stat under cond/ns that make it more accessible to rich than poor
|
violates equal protection. Therefore, indigents must be given counsel at state expense during a first appeal granted to all AS A MATTER OF RIGHT & for appeals of guilty please & pleas of nolo contendere.
|
|
|
Must an indigent D be provided w/ counsel during the 2nd discretionary appeal in a two tier system?
|
No
|
|
|
If SC announces a new rule of crim procedure in a case on direct review, the rule must be applied to
|
all other cases on direct review.
|
|
|
Colalteral attack is
|
an attack on judgment entered in a diff proceeding (writ of habeas corpus is one type)
|
|
|
Does an indegent have a right to counsel at a habeas corpus proceeding?
|
no
|
|
|
What is petitioner's burden of proof at a habeas corpus proceeding?
|
preponderance of evid to show unlawful detention
|
|
|
May state appeal the grant of a writ of habeas corpus?
|
yes
|
|
|
Does D have right to counsel at probation revocation hearings?
|
yes if it involves imposition of a new sentence, D is entitled to lawyer in all cases in wh she is entitled to counsel at trial.
|
|
|
Does D have right to counsel after probation revocation when already imposed sentence springs into application?
|
no, unless right to counsel is necessary for a fair hearing (i.e. D denies commission of acts)
|
|
|
Does D have a right to counsel when hearing involves parole revocation?
|
yes, IF representation is necessary for a fair hearing (i.e. issues difficult to present arise)
|
|
|
What rules are impt to prisoner rights?
|
1. due process if prison regulations impose atypical & sig hardship"
2. no REP in cells 3. right of reasonable access to courts. 4. prisoner's 1st A rights CAN be burdened by regulations 5. adequate medical care |
|
|
Can prison officials regulate inmates' mail
|
yes incoming mail can be broadly regulated but outgoing mail generally cannot be.
|
|
|
Does prisoner have a right to be free from disabilities upon completion of sentence?
|
no (e.g. prohibitting released convicted felon from voting Con)
|
|
|
Prohibition against double jeopardy guaranteed by
|
5th A
|
|
|
Double jeopardy is
|
reprosecution for substantially same offense
|
|
|
For jury trials, when does jeopardy attach?
|
At empaneling & swearing of jury
|
|
|
For bench trials, when does jeopardy attach?
|
When 1st wit sworn
|
|
|
For juvenile proceedings, when does jeopardy attach?
|
commencement of JV proceeding
|
|
|
Does jeopardy attach in civil proceedings?
|
No except juv proceedings
|
|
|
May state retry a D if 1st trial ends in a hung jury?
|
yes
|
|
|
May state retry a D when 1st trail was terminated b/e of a MANIFEST NECESSITY to abort?
|
yes
|
|
|
Generally why may state retry a D
|
if 1st trial terminated on any other grounds besides aquital on the merits.
|
|
|
May a state retry a D who has successfully appealed a conviction?
|
yes unless the ground for reversal was insufficient evid to support a guilty verdict. Retrial permitted when reversal based on weight rather than sufficiency of the evid.
|
|
|
May charges be reinstated after D breaches her plea bargain?
|
yes
|
|
|
On retrial, can D be tried for a greater offense?
|
no
|
|
|
When are 2 crimes the same offense?
|
2 crimes are the same offense unless each crime requires proof of an additional element that the other does not require
|
|
|
Even if 2 crimes constitute the same offense (require proof of the same elements) are multiple punishments permissible?
|
yes if the legislative intent was to have cumulative punishments
|
|
|
Does attachment for a greater offense bar retrial for a lesser included offense?
|
yes except retrial for murder is permitted if victim dies after attachment of jeopardy for battery.
|
|
|
Exceptions to bar of retrial for a lesser included offense
|
1. retrial for murder permitted if victim dies after attachment of jeopardy for battery
2. state may continue to prosecute for charged offense despite D's guilty plea to a lesser offense 3. new evid: subsequent conduct used to prove greater offense had not occurred at time of trial for lesser offense 4. new evid wh had not been discovered despite due diligence. |
|
|
On retrial, may a harsher sentence be imposed?
|
yes but reasons have to be other than vindictiveness for taking appeal.
|
|
|
Is double jeopardy clause violated when same conduct used to enhance sentence for a 2nd crime that was used to enhance sentence for 1st
|
no
|
|
|
Method for invoking priv against compelled self incrim.
|
Crim D has right not to take wit stand. Otherwise, priv does not prevent person from being sworn in as wit. Person must specifically invoke priv in ans to specific ?
|
|
|
On retrial, may death penalty be imposed if 1st jury did not find it appropriate?
|
no
|
|
|
Approach to "same offense" under double jeopardy clause
|
1. Is D charged w/ 2 crimes based on same conduct?
2. If so, did leg. clearly intend conviction of both crimes? 3. If yes, double jeopardy prohibition not violated 4. If no, does each crime require proof of an additional fact not required by other? 5. If no, double jeo has been violated. |
|
|
Can sep sovereigns try D for same offense?
|
Con prohibition against double jeo does not apply to trials by sep sovereigns--i.e feds & state or 2 states (but municipalities are considered part of state).
|
|
|
Does Double Jeopardy Clasue prohibit a civil ac/n against D even if D has already been criminally tried for same conduct?
|
No.
|
|
|
Can prosecution appeal a dismissal?
|
yes prosecution can appeal any dismissal on D's motion that does not consitute an acquittal on the merits.
|
|
|
Does double jeopardy prohibit govt from trying D criminally for same conduct in wh D was tried in civil case?
|
no
|
|
|
Can prosecution appeal if a successful appeal would not require a new trial?
|
yes
|
|
|
Can govt appeal a sentence?
|
yes, if state stat permits a review.
|
|
|
May prosecution appeal a jury decision not to impose the death penalty?
|
no
|
|
|
What is rule about collateral estoppel in crim procedure?
|
D may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determin/n inconsistent w/ one required for conviction.
|
|
|
Who may assert privilege against compelled self incrimination?
|
Only natural persons--not corps or partnerships. Applies to anyone testifying--D, wit or party only if the answer to ? may tend to incriminate him.
|
|
|
When may priv against compelled self incrim be asserted?
|
whenever person's response might furnish a link in chain of evid needed to prosecute him. Priv must be claimed in civl proceeding to prevent waiver for later crim case.
|
|
|
Scope of 5th A protection against compelled self incrim
|
1. limited to compelled testimonial (not physical) evid.
2. does not apply to documents 3. no violation until stmts used against D in crim trial |
|
|
Does crim D have a right not to take wit stand at trial?
|
yes, part of the priv against compelled self incrimination. Includes right not to be asked to testify.
|
|
|
What prohibitions against burdening an assertion of the priv against self incrimination does law provide?
|
1. prosecutor may not comment on D's silence after being arrested & receiving Miranda warnings
2. prosecutor may not comment on D's decision not to testify at trial 3. D or judge may sua sponte instruct jury that they may not draw an adverse inference fom D's failure to testify |
|
|
Besides crim D, can the priv against self incrimination prevent person from being sworn in as a wit?
|
no
|
|
|
Most impt things to remember about 5thA priv against self incrimination
|
1. only testimonial evid is protected
2. only compelled testimonial evid is privileged |
|
|
Exception to prosecutor not being allowed to comment on D's failure to testify
|
prosecutor can respond to D's counsel's assertion that D was not allowed to explain his side of the story,
|
|
|
Excessive fines clause
|
8th A prohibits unreasonably high & disproportionate fines Civil in rem forfeitures not subject of 8th A.
|
|
|
May state impose penalties for failure to testify
|
no state may not chill exercise of the 5th A privilege against compelled self incrimination
|
|
|
What test is used when prosecutor impermissiby comments on D's silence?
|
harmless error
|
|
|
Immunity in crim law
|
Wit gets freedom from prosecution in exchange for person's testimony. Govt gets ability to compel testimony because it can no longer incriminate the wit.
|
|
|
When may wit be compelled to ans ?s against him?
|
If given adequate immunity from prosecution
|
|
|
What does use & derivative use of immunity means?
|
means of testimony will not be used against wit; but evid derive from an ind source can still be used against the wit.
|
|
|
Is immunized testimony considered voluntary?
|
No, it is considered coerced. Therefore mmunized testimony cannot be used for impeachment of D’s testimony at trial.
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Can immunized stmts be used in a trial for perjury?
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yes
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Does person have priv against self incrimination if there is no possibility of incrimination? (ie Sol has run)
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no
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If granted, what is scope of immunity from prosecution?
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Extends only to re/d offense—does not protect against perjury during immunized testimony.
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If state grants immunity, may Fed use evid & vice versa?
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No, another sovereign may not use testimony gained by a grant of immunity
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Does D waive the priv against self incrim if he testifies?
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yes
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When does a wit waive the priv against self incrim?
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when wit discloses the incriminating evid
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What rights must be given a child during a juvi trial?
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1. Written notice of charges 2. Asst of counsel
3. Opportunity to xexam wits 4. Right not to testify 5. Right to have proof established beyond a reasonable doubt. |
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Does child have right to trial by jury?
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SC has held no
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When is pretrial detention allowed in juvi?
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When juvenile poses a “serious risk” to soc. Must be for a limited time.
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What is rule about double jeopardy for juvi?
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If juvi court adjudicates a child a delinquent, jeopardy has attached & he cannot be tried for the same beh as an adult.
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Forfeiture ac/ns are
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Ac/ns against prop regarded quasi crim in nature. Certain Con rights may exist for persons whose interest in prop would be lost
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Do owners (& others w/ interest) have a right to notice & hearing before seizure of prop?
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Personal prop, no. Real prop, yes unless govt can show exigent circumstances justifying immediate search.
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What is gen rule Con rule about fines?
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Excessive Fines Clause of 8thA applies only to fines imposed as punishment—not civil fines.
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Are forfeitures covered by the Excessive Fines Clause of 8th A?
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Penal forfeitures, yes. Civil forfeitures, no
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What kind of fines are considered excessive under the Excessive Fines Clause?
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those grossly disproportionate to offense
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Are Civil in rem forfeitures subj to Excessive Fines Clause?
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no
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Are monetary forfeitures brought in civil ac/ns subj to Excessive Fines Clause?
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no
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Does the Due Process Clause require forfeiture statutes to provide a defense for an “innocent owner” when innocent owner entrusted prop to wrongdoer? (e.g. innocent owner took all reasonable steps to avoid having prop used illegally)?
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no
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