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41 Cards in this Set

  • Front
  • Back
Sources of law that create legal rights for criminal defendants and regulate criminal procedure
US Constitution (95%)
Fed. Code of Criminal Pro (1%)
State Constitutions (3%)
Common law supervisory powers (1%)
What is the line between felony and misdemeanor?
Rule of thumb is that felonies can bring more then 6 months in prison whereas misdemeanors bring less then 6 months in jail (not prison)
Criminal Justice System: Step One
Report or Investigation: The majority of criminals are caught when someone reports a crime. Key at this stage is discretion (whether or not police arrest).
Criminal Justice System: Step Two
Arrest: A form of seizure under the 4th Amend. You need probable cause. Most are for drug violations.
Criminal Justice System: Step Three
Booking: Booked into jail and searched. Police will try to get you to give a statement. Miranda rights figure in here.
Criminal Justice System: Step Four
Decision to Prosecute: Political decisions made. Once decided, a complaint is filed by prosecutor.
Criminal Justice System: Step Five
Appearance Before Magistrate: Typically called a presentment. Must be prompt (SC says within 48 hours). No express right to counsel at this stage. You will be told what charges, your basic rights, and will discuss bond (if applicable).
Criminal Justice System: Step Six
Preliminary Hearing: Hearing to determine if there is probable cause to hold you (right to counsel kicks in). Government has to establish probable cause that a crime was committed and that you did it. If yes, you are bound over for court and judge files an information. Primary discovery tool for the defense. Each side has to turn over statements defendant made and any evidence that would produce reasonable doubt.
Criminal Justice System: Step Seven
Grand Jury (fed. version of prelim. hearing): Usually 12-23 people. Grad juries are secret (defendant and defense counsel not present). The result is an indictment.
Criminal Justice System: Step Eight
Arraignment: Defendant is called into court and told the specifics of the charges and the defendant enters a plea (guilty, not guilty, no contest, stand mute).
Criminal Justice System: Step Nine
Pre-Trial Motions: The key is the motion to suppress (initiates exclusionary rule). Often triggers plea bargaining. Most cases are settled before trial.
Criminal Justice System: Step Ten
Trial: If offense is punishable by ore then 6 months (right to jury). All facts necessary for conviction must be proved beyond a reasonable doubt.
Criminal Justice System: Step Eleven
Sentencing: Two types: Flat time is that you get a certain number of years for a certain crime. Guideline sentencing means that a crime gets a value and there are associated ranges of sentencing available (determined by mitigating and aggravating factors).
Criminal Justice System: Step Twelve
Direct Appeal: No constitutional right, but every jurisdiction has created the right. Appellate court will affirm if it was possible for a reasonable jury to reach that conclusion.
Criminal Justice System: Step Thirteen
Post Conviction Remedies: Habeas Corpus (defendant claims that the state government seized them unconstitutionally and the federal government should get involved.
Post Conviction Relief Act - cases like when DNA evidence has become available (in the state system).
Incorporation of Bill of Rights: Fundamental Rights Approach
What state practices are so shocking to the conscience that they are inconsistent with the concept of ordered liberty. Example: Sixth Amendment right to counsel was not considered fundamental under this approach.
Incorporation of Bill of Rights: Total Incorporation
All of the Bill of Rights should be applied to the states (never caught on).
Incorporation of Bill of Rights: Total Incorporation Plus
All of the Bill of Rights apply plus substantive due process. The Plus portion won. Example: 14th amendment right to privacy.
Incorporation of Bill of Rights: Selective Incorporation
Hybrid method now used. To determine if a right applies look to the entirety of the right not just how it applies to specific facts, and whether the provision is fundamental to Anglo-American jurisprudence. With this approach when a right applies they typically get the package of cases that interpret the rule.
Sixth Amendment: Right to Jury Trial
Right to a jury trial for serious crimes defined by potential of more then 6 months incarceration.
Sixth Amendment: Jury size
Constitutional minimum of 6 person juries - Ballew

State juries do not have to have 12 people - Williams
Sixth Amendment: Unanimous juries
Federal criminal juries - yes
State criminal juries - no, unless it is a 6 person jury.
Sixth Amendment: Right to Counsel BEFORE Selective Incorporation
Betts - 6th Amendment right does not apply to states because the SC wanted flexibility. They were concerned with parade of horribles (attorney for traffic offenses) especially related to expense.
Sixth Amendment: Right to Counsel AFTER Selective Incorporation
Gideon - The Betts flexibility approach failed. There now is a right to counsel applied to states. You cannot be looking at one day in jail if you weren't appointed counsel and didn't waive the right.
When does right to counsel attach?
Kirby - (1) at any critical stage of the criminal prosecution, (2) after the initiation of adversary judicial criminal proceedings, (3) whether by way of formal charge, prelim. hearing, indictment, information or arraignment.
Can a defendant be forced to have appointed counsel?
Faretta - No, you have a constitutional right to conduct your own defense (Pro Se). This is part of package of rights incorporated.
Requirements for Valid Waiver of Sixth Amendment Right to Counsel
Waiver must be knowing and intelligent and defendant must be competent to make the decision. Standard of proof is same for competency to stand trial (he knows he is on trial and can communicate with his attorney). Some states require a greater showing.
Requirements to Plead Guilty Without Counsel
Informed of nature of charges, told of right to counsel regarding plea, and the range of allowable punishments upon entry of guilty plea
Right to Counsel includes Right to "Effective" assitance of counsel. Pre-1984 tests
Farce and Mockery - Did the attorney's actions make the trial a farce and mockery of 14th Amendment due process?

Checklist Approach: If you have a 6th Amend. right to counsel there should be some basic things every attorney should do (like investigation).
Right to "Effective" Assistance of Counsel - Modern Test
Defendant must show (1) performance was deficient (more then extrinsic things, reasonable under the circumstances under the prevailing professional norms. AND (2) prejudice - but for the unprofessional errors, the result would have been different. Must be a reasonable probablity sufficient to undermine the outcome. If conflict of interest, prejudice is presumed.
What rights to indigent defendants have (beside counsel)?
Griffin-Douglas Doctrine
(1) right to transcript
(2) right to counsel for direct appeal only
(3) right to basic tools to build effective defense
How do you determine if something is a basic tool?
(1) private interest effected
(2) government interest affected if safeguard is provided
(3) probable value of additional or substitute procedural safeguards that are sought and the risk of erroneus deprivation of the affected interest if safeguard is not provided.
Primary reason for exclusionary rule
Deter government agents in engaging in unconstitutional conduct (other things don't work)
Good Faith Exception and Warrants: What is the test?
What are the exceptions?
Would a reasonably well trained officer have known that the search was invalid despite the magistrate's authorization? Exceptions: affidavit was intentionally misleading or reckless disregard for the truth, magistrate abandoned role, warrant was facially deficient that officers couldn't have possibly though it was okay, affidavit so lacked probable cause that reliance on it was unreasonable.
Purpose for limiting the exclusionary rule
Balance the costs of losing evidence and letting criminals go free with the benefits of deterring police.
What other situations has the good faith exception been applied to?
(1) objective reasonable reliance on a statute when the statute was ultimately found to be unconstitutional.
(2) faulty (but reasonable) computer systemt that showed outstanding warrant erroneously.
Standing Exception - What's the rule?
You are not permitted to vicariously raise constitutional violations of other people's rights.
How do you determine if you have standing?
You must have a legitimate expectation of privacy or a property right. Examples: overnight guest-yes, passenger in a car with no possessory right-no, temporary visitor-no (maybe if social guest), no automatic standing for possession offenses.
Fruits Doctrine: Basic rule
When the exclusionary rule is applied, it prohibits the prosecution from using evidence directly obtained from the constituional violation.
Fruits Doctrine: Exceptions
(1) independent source - the police would have gotten the information some other way (police would have been in same position without the misconduct) (2) attenuation - connection between misconduct and evidence is so indirect that it should not be excluded. (3) inevitable discovery - can show by a preponderance of the evidence that police would have found evidence anyway (hypothetical independent source).
Why can evidence obtained unconstitutionally be used to impeach a defendant?
Not allowing the information to refute something the defendant says on the stand would not result in any more deterrence.