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144 Cards in this Set

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What is the Exclusionary Rule?
The exclusionary rule is a judge-made doctrine that prohibits the introduction of evidence obtained in violation of a defendant's Fourth, Fifth, and Sixth Amendment rights. Under the rule, illegally obtained evidence is inadmissible at trial
What is the Fruit of the Poisonous Tree Doctrine?
Under the "fruit of the poisonous tree" doctrine, all evidence obtained from the exploitation of any illegally obtained evidence in violation of defendant's Constitutional rights must also be excluded at trial.
The doctrine is an extension of the exclusionary rule, which, subject to some exceptions, prevents evidence obtained in violation of the Fourth Amendment from being admitted in a criminal trial.
What are the Exceptions to Fruit of the Poisonous Tree Doctrine?
(3 of them)
(i) The Evidence is obtained from a source independent of the original illegality;
(ii) An intervening act of free will by the defendant and
(iii) Inevitable discovery;
Is the exclusionary rule applicable to grand jury proceedings?
No, unless evidence was obtained in violation of the federal wiretapping statute.
~ The rule is also inapplicable at parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to agency rules.
When will the exclusionary rule not apply when the police are acting in good faith?
The exclusionary rule does not apply when police act in good faith based on:
(i) case law, (ii) a facially valid statute or ordinance, or (iii) a computer report containing clerical errors not made by the police.
Does the Exclusionary Rule apply when the police act in good faith reliance on a defective warrant?
Not Generally, but there are exceptions.
What are the exception to the rule that the Exclusionary Rule does nont apply when the police act in good faith reliance on a defective warrant?
This is true where:
(i) the underlying affidavit was so lacking in probable cause that it could not reasonably be relied on,
(ii) the warrant was defective on its face,
(iii) the affiant lied or misled the magistrate, or
(iv) the magistrate has "wholly abandoned his judicial role."
When is Use of Excluded Evidence for Impeachment Purposes allowed?
Some illegally obtained evidence may still be used to impeach defendant's credibility if he takes the stand at trial.
~ Specifically, an otherwise voluntary confession taken in violation of the Miranda requirements is admissible for impeachment purposes, and evidence obtained from an illegal search may be used by the prosecution to impeach defendant's, but not others's statements.
What is the Harmless Error Test?
If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond a reasonable doubt that the error was harmless.
~ In a habease proceeding where the petitioner claims constitutional error, he should be released if he can show that the error had a substantial and injurious effect or influence in determining the jury's verdict; if the judge is in grave doubt as to the harm, the petition must be granted.
Does the Harmless Error Standard apply to the denial of counsel at trial?
No, this error is never harmless.
How is the admissibility of a confession decided?
A defendant is entitled to have the admissibility of evidence of a confession decided as a matter of law by a judge out of the hearing of the jury.
Who has the burden on admissibility and what is it?
The government bears the burden of establishing the admissibility by a preponderance of the evidence.
May the D's testimony at a suppression hearing be used against him at trial?
The defendant has the right to testify at a suppression hearing without his testimony’s being admitted against him at trial on the issue of guilt.
What does the Fourth Amendment provide?
The Fourth Amendment provides that people should be free from unreasonable searches and seizures.
What Constitutes a seizure?
A seizure occurs when a reasonable person would believe that she is not free to leave or terminate an encounter with the government.
What is an Arrest?
An arrest occurs when the police take a person into custody against her will for purposes of criminal prosecution or interrogation.
~ an arrest must be based on Probable Cause
What is the Probable Cause Requirement?
An arrest must be based on proable cause - i.e., trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime.
When is a Warrant required for an arrest?
A warrant generally is not required before arresting a person in a public place. However, police generally must have a warrant to effect a nonemergency arrest of a person in his home.
What is the standard for an investigatory detention (stop and frisk)?
If police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (not merely a hunch), they may detain a person for investigative purposes.
What is the duration and scope of a stop and frisk?
The detention must be no longer than necessary to conduct a limited investigation to verify the suspicion. If during the detention probable cause arises, the detention becomes an arrest.
What is the rule as to brief property seizures?
Brief property seizures are similarly valid as personal detentions if based on reasonable suspicion.
When may the police frisk for weaopons?
police have the ability to do a limited search for weapons of areas within the suspect’s control based on a reasonable and articulable suspicion that the person stopped was "armed and dangerous" and had been, is, or was about to engage in a criminal act. The type of frisk authorized by this decision has become known as a Terry stop and frisk or simply Terry stop.
When may police conduct an automobile stop?
Generally, police must have at least a reasonable suspicion to believe that a law has been violated.
~ However, if special law enforcement needs are involved, the Supreme Court allows police to set up roadblocks to stop cars without individualized suspicion that the driver violated some law.
What is necessary for a valid roadblock?
To be valid, the roadblock must:
(i) stop cars on the basis of some neutral, articulable standard (e.g., every car); and
(ii) be designed to serve purposes closely related to a particular problem related to automobiles and their mobility
What is a pretextual stop?
If the police reasonably believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate whether some other law - for which the police lack reasonable suspicion - has been violated.
When may the police detain in order to obtain a warrant?
If the police have probable cause to believe that a suspect has hidden drugs in his home, they may, for a reasonable time, prevent him from going into the home unaccompanied so that they can prevent him from destroying the drugs while they obtain a search warrant.
What is the rule as to Occupants of Premises during a search?
A valid warrant to search for contraband (any item which is illegal to be sold, possessed, etc.) allows the police to detain occupants of the premises during a proper search.
What is the standard for police to conduct a Station House Detention?
Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting.
What is the status of Stop and Identify Statutes?
In Hiibel, the Supreme Court held that such laws did not violate the Fourth Amendment prohibition on unreasonable searches and seizures or the Fifth Amendment privilege against self-incrimination.
Is seizure of a person for a grand jury proceeding within the Fourth Amendment's protection?
No, Seizure of a person (by subpoena) for a grand jury appearance is not within the Fourth Amendment's protection.
When may a police officer use deadly force to effectuate an arrest?
A police officer may not use deadly force to apprehend a suspect unless the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury.
~ On the other hand, a mere attempt to arrest that results in the death of a suspect is not necessarily a seizure governed by the Fourth Amendment.
What is required, generally, for evidentiary searches and seizures?
(3 points to approach an evidentiary search and seizure problem)
(i) Does the defendant have a Fourth Amendment right - i.e., a seizure by the government concerning a place or thing in which defendant had a reasonable expectation of privacy?
(ii) Did the government have a valid warrant issued by a neutral and detached magistrate on a showing of probable cause and reasonably precise as to the place to be searched and items to be seized?
(iii) If the police did not have a valid warrant, did they make a valid warrantless search and seizure?
What kind of conduct is required for an individual to be afforded Fourth Amendment protection?
The Fourth Amendment generally protects only against governmental conduct (i.e., police or other government agents), and not against searches by private persons - including private security guards - unless deputized as officers of the public force.
What is the standing requirement relating to protection under the Fourth A?
To have have a Fourth Amendment right, a person must have his own reaonable expectation of privacy with respect to the place searched or the item seized.
What is the reasonable expectation of privacy standard based upon?
The determination is made on the totality of the circumstances, but a person has a legitimate expectation of privacy any time:
1) He owned or had a right of possession of the place searched;
2) The place searched was in fact his home, whether or not he owned or had a right to possession of it; or
3) He was an overnight guest of the owner of the place searched.
What is a person's expectation with things held out to the public?
One does not have a reasonable expectation of privacy in objects held out to the public.
When will a warrant be issue?
A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises to be searched.
~ Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers' conclusions.
What test must an affidavit based on an informer's tip meet?
An affidavit based on an informer's tip must meet the "totality of the circumstances" test.
~ Under this test, the affidavit may be sufficient even though the reliability and credibility of the informer or his basis for knowledge are not established. Note that the informer's identity generally need not be revealed.
When will a search warrant issued on the basis of an affidavit be held invalid?
(3 requirements)
A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all threeof the following:
(i) A false statement was included in the affidavit by the affiant;
(ii) The affiant intentionally or recklessly included the false statememt; and
(iii) the false statement was material to the finding of probable cause.
May police use evidence obtained in reliance on a warrant that was ultimately found to be lacking probable cause?
Yes - Evidence obtained by the police in reasonable reliance on a facially valid warrant may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause
What standard must the warrant meet as to the items to be seized or searched?
A warrant must describe with reasonable precision the place to be searched and items to be seized.
Is searching third-party premises permissible?
Yes, A warrant may be obtained to search premises belonging to nonsuspects, as long as there is probable cause to believe that evidence will be found there.
What must the status of the magistrate be?
The magistrate who issues the warrant must be neutral and detached (e.g., state attorney general is not neutral).
What must the police do, in executing the warrant?
Police must knock and announce their purpose (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation).
What may police seize when executing the warrant?
Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not specified in the warrant.
May the police search persons on the premises during the execution of the warrant?
A warrant founded on probable cause to search for contraband authorizes the police to detain occupants of the premises during a proper search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant.
What are the exceptions to the rule that warrantless searches are unconstitutional?
All warrantless searches are unconstitutional unless they fit into one of the six recognized exceptions to the warrant requirement. They are:
(1) A Search Incident to a Lawful Arrest
(2) "Automobile" Exception
(3) Plain View
(4) Consent
(5) Stop and Frisk
(6) Hot Pursuit, Evanescent Evidence, and Other Emergencies.
What is the Search Incident to a Lawful Arrest Exception to the warrant requirement?
Incident to a lawful arrest, the police may search the person and areas into which he might reach to obtain weapons or destroy evidence (including the entire passenger compartment of a car.)
~ The police may also make a protective sweep of the area if they believe accomplices may be present.
~ The search must be contemporaneous in time and place with the arrest.
What is the Automobile Exception to the warrant requirement?
If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search.
~ If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later.
Under the Automobile Exception to the warrant requirement, may the search extend to passengers's belongings?
Yes - The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.
Under the Automobile Exception to the warrant requirement, may the search extend to Containers Placed in the Vehicle?
If the police have probable cause only to search a container in a vehicle (e.g., luggage recently placed in the trunk), they may search only the container, not other parts of the vehicle.
What is the Plain View exception to the warrant requirement?
The police may make a warrantless seizure when they:
(i) Are legitimately on the premises;
(ii) Discover evidence, fruits or instrumentalities of crime, or contraband;
(iii) See such evidence in plain view; and
(iv) Have probable cause to believe (i.e., it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime.
What is the Consent exception to the warrant requirement?
A warrantless search is valid if the police have a voluntary and intelligent consent.
~ Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary and intelligent consent.
~ The scope of the search may be limited by the scope of the consent, but the scope generally extends to all areas to which a reasonable person under the circumstance would believe it extends.
Who has authority to consent to a warrantless search?
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.
What is the Stop and Frisk exception to the Warrant Requirement?
a police officer may stop a person without probable cause for arrest if she has an articulable and reasonable suspicion of criminal activity. If the officer also reasonably believes that the person may be armed and presently dangerous, she may conduct a protective frisk.
What is the Scope of the Intrusion in a Stop an Frisk?
The scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing. An officer may also search the passenger compartment of an automobile of a detained occupant where there is a reasonable belief that the occupant is dangerous.
What is Plain Feel?
During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence.
What is the Hot Pursuit, Evanescent Evidence exception to the Warrant Requirement?
There is no general “emergency” exception. However, (i) police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling; (ii) police may seize without a warrant evidence likely to disappear before a warrant can be obtained; and (iii) contaminated food or drugs, children in trouble, and burning fires may justify warrantless searches and seizures.
What is the standard for Administrative Inspections and Searches?
Here, the probable cause required to obtain a warrant is more lenient than for other searches: A showing of a general and neutral enforcement plan will justify issuance of a warrant.
When may a warrant authorizing a wiretap be issued?
A valid warrant authorizing a wiretap may be issued if:
(i) there is showing of probable cause,
(ii) the suspected persons involved in the conversations to be overheard are named,
(iii) the warrant describes with particularity the conversations that can be overheard,
(iv) the wiretap is limited to a short period of time,
(v) the wiretap is terminated when the desired information has been obtained, and
(vi) return is made to the court, showing what conversations have been intercepted.
Who assumes the risk that the person he is talking to is an informant?
A speaker assumes the risk that the person to whom he is talking is an informer wired for sound or taping the conversation. A speaker has no Fourth Amdnement claim if he makes no attempt to keep a conversation private.
When is evidence inadmissible under the due process clause?
Evidence obtained in a manner offending a “sense of justice” is inadmissible under the Due Process Clause. The reasonableness of searches within a person’s body is determined by balancing society’s need against the magnitude of the intrusion. Taking of a blood sample is usually upheld, but surgery (e.g., to remove a bullet) requires great need.
What is the standard for a self-incriminating statement under the Fourteenth A?
For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances.
~ A statement will be involuntary only if there is some official compulsion (e.g., a confession is not involuntary merely because it is a product of mental illness).
What is the standard if an involuntary confession is admitted?
If an involuntary confession is admitted into evidence, the harmless error test applies; i.e., the conviction need not be overturned if there is other overwhelming evidence of guilt.
What is the Sixth A Right to Counsel?
The Sixth Amendment guarantees the right to the assistance of counsel in all criminal proceedings, which include all critical stages of a prosecution after judicial proceedings have begun (e.g., formal charges have been filed).
~ It prohibits the police from eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless he has waived his right to counsel.
What does it mean that the Sixth A Right to Counsel is offense specific?
The Sixth Amendment is offense specific.
~ Thus, even though a defendant’s Sixth Amendment rights have attached regarding the charge for which he is being held, he may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda;
~ Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.
What is the Fifth Amendment Privilege Against Compelled Self-Incrimination?
For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, of his rights.
What must a person in custody be informed of (i.e. what are his Miranda rights)?
Prior to interrogation, a person in custody must be:
(i) He has the right to remain silent;
(ii) Anything he says can be used against him in court;
(iii) He has the right to presence of an attorney; and
(iv) If he cannot afford an attorney, one will be appointed for him if he so desires.
When are Miranda Rights required?
Anyone in the custody of the government and accused of a crime must be given Miranda warnings prior to interrogation by the police.
Does a suspect have to know he is being interrogated by a government agent for Miranda purposes?
Yes. Generally, Miranda warnings are necessary only if the defendant knows that he is being interrogated by a government agent.
What is the Custody requirement under the Fifth A Right Against Compelled Self-incrimination?
Whether a person is in custody depends on whether the person’s freedom of action is denied in a significant way based on the objective circumstances (e.g., an arrest constitutes custody; a routine traffic stop does not constitute custody).
What is the Interrogation Requirement under the Fifth A Right Against Self-incrimination?
"Interrogation" includes any words or conduct by the police that they should know would likely elicit a response from the defendant. Thus, Miranda warnings are not required before spontaneous statements are made by a defendant. Note that routine booking questions do not constitute interrogation.
What is necessary for a person to waive his Miranda Rights?
A suspect can waive his Miranda rights, but the prosecution must prove that the waiver was knowing, voluntary, and intelligent.
What types of statements does Miranda apply to?
Miranda applies to both inculpatory statements and exculpatory statements (e.g., "I didn't shoot V, you did")
Do Miranda warnings apply to Grand Jury proceedings?
No, The Miranda requiremens do not apply to a witness testifying before a grand jury, even if he witness was compelled by subpoena to be there.
How may an accused terminate police interrogation?
The accused may terminate police interrogation any time prior to or during the interrogation by invoking either the right to remain silent or the right to counsel.
What must the police do if the suspect invokes his Right to Remain Silent?
If the accused indicates that he wishes to remain silent, the police must scrupulously honor this request by not badgering the accused, although the Supreme Court has allowed later questioning to occur on an unrelated crime.
What must the government do if the suspect invokes his Right to Counsel?
If the accused unambiguously indicates that he wishes to speak to counsel, all questioning must cease until counsel has been provided unless the accused then waives his right to counsel (e.g., by reinitiating questioning).
~ The request must be specific (i.e., indicate that the defendant desires assistance in dealing with interrogation).
~ Allowing defendant to consult with counsel and then resuming interrogation after counsel has left generally does not satisfy the right to counsel - counsel must be present during the interrogation unless defendant has waived the right.
What is the difference between whether the accused invokes his right to remain silent or his right to counsel?
If the defendant indicates that he wishes to remain silent, the police probably may requestion him about a different crime after a break if fresh warnings are administered.
~ If the defendant requests counsel, the police may not resume interrogating the defendant until counsel is provided or the defendant initiates the questioning.]
What is the Effect of a violation of a person's Fifth A Right Against Self-Compelled Incrimination?
Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule.
When may be statements obtained in violation of Miranda be used?
Statements obtained in violation of the Miranda rules may be used to impeach the defendant's trial testimony, but may not be used as evidence of guilt.
What is the Public Safety Exception to Miranda?
The Supreme Court has allowed interrogation without Miranda warnings where it was reasonably prompted by a concern for public safety (e.g., to locate a hidden gun that could have caused injury to innocent persons).
What is the Sixth Amendment Right to Counsel re Pretrial Identifications?
A suspect has a right to the presence of an attorney at any post-charge lineup or showup. An accused does not have a right to counsel at photo identifications or when police take physical evidence, such as handwriting exemplars or fingerprints, from him.
What is the due process standard for attacking a pretrial identification?
A defendant can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification.
What is the remedy for unconstitutional identifications?
The remedy for unconstitutional identifications is exclusion of the in-court identification and is rarely granted.
What is the Independent Source rule?
A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source. The most common independent source is opportunity to observe at the time of the crime.
When must a Preliminary Hearing to Determine Probable Cause to Detain be made?
If probable cause has already been determined (e.g., the arrest was pursuant to a warrant or a grand jury indictment), no preliminary hearing to determine probable cause need be held.
~ If probable cause has not already been determined and there are significant constraints on an arrestee’s liberty, a preliminary hearing to determine probable cause must be held within a reasonable time (e.g., 48 hours).
~ The hearing is an informal, nonadversarial proceeding. There is no real remedy for a denial of the hearing, but evidence discovered as a result of the unlawful detention can be excluded under the exclusionary rule.
When will a conviction resulting from an indictment by a grand jury be reversed?
A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed without regard to harmlessness of error.
How is a determination of whether a ∆’s Sixth Amendment right to a speedy trial has been violated made?
A determination of whether a ∆’s Sixth Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances.
Factors considered are the length of delay, reason for delay, whether ∆ asserted his right, and prejudice to ∆.
What is the remedy for a violation of a D's right to a speedy trial?
The remedy for a violation of the right to speedy trial is dismissal with prejudice (bars the losing party from raising the issue again in another lawsuit; usually considered an adjudication on the merits)
When does the right to a Speedy Trial attach?
The right to speedy trial does not attach until ∆ has been arrested or charged. If ∆ is charged and is incarcerated in another jurisdiction, reasonable efforts must be used to obtain the presence of defendant. Also it is a violation of the right to speedy trial to permit the prosecution to indefinitely suspend charges.
What is the government's duty to disclose evidence?
The government has a duty to disclose material, exculpatory evidence to the defendant. Failure to disclose such evidence - whether willful or inadvertent - violates the Due Process Clause and is grounds for reversing a conviction if the ∆ can prove that:
(i) the evidence is favorable to him because it either impeaches or is exculpatory; and
(ii) prejudice has resulted (i.e., there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented at trial).
What is the difference between insanity and incompetency to stand trial?
Insanity is a defense to a criminal charge based on the ∆'s mental condition at the time he committed the charged crime. A ∆ acquitted by reason of insanity may not be retried and convicted, although he may be hospitalized under some circumstances.
Incompetency to stand trial, on the other hand, is not a defense to the charge, but rather is a bar to trial. It is based on the ∆'s mental condition at the time of trial. if ∆ later regains his competency, he can then be tried and convicted.
What is the Due Process Standard for Incompetency to stand trial?
A ∆ is incompetent to stand trial if he either:
(i) lacks a rational as well as factual understanding of the charges and proceedings, or
(ii) lacks a sufficient present ability to consult with his lawyer with a reasonable degree of understanding.
~ The state may place on the ∆ the burden of proving incompetency by a preponderance of the evidence, but requiring the ∆ to show incompetency by "clear and convincing" evidence is unconstitutional.
What is the Right to a Trial by Jury?
There is no constitutional right to jury trial for petty offenses, but only for serious offenses.
~ An offense is serious if imprisonment for more than six months is authorized.
~ Also, there is no right to jury trial in juvenile delinquency proceedings.
For Criminal Contempt proceedings, when must a jury trail be afforded?
For criminal contempt proceedings, cumulative penalties totaling more than six months cannot be imposed without affording ∆ the right to a jury trial.
~ If a judge summarily imposes punishment for contempt during trial, penalties may aggregate more than six months without a jury trial.
What is the requirement for the number and unanimity of jurors?
There is no constitutional right to a jury of 12, but there must be at least six jurors to satisfy the right to a jury trial.
~ The Supreme Court has upheld convictions that were less than unanimous, but probably would not approve an 8-4 vote for conviction. Six person juries must be unanimous.
What is a D's right re the venire?
A ∆ has a right to have the jury selected from a representative cross-section of the community. He need only show the underrepresentation of a distinct and numerically significant group in the venire to show his jury trial right was violated.
What is the Rule Re Use of Peremptory Challenges for Racial and Gender-Based Discrimination?
Although generally a prosecutor may exercise peremptory challenges for any reason, the Equal Protection Clause forbids the use of peremptory challenges to exclude potential jurors solely on account of their race or gender.
An equal protection-based attack on peremptory strikes involves three steps:
(i) The ∆ must show facts or circumstances that raise an inference that the exclusion was based race or gender.
(ii) Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (even an unreasonable explanation is sufficient, as long as it is race neutral).
(iii) The judge then determines whether the prosecutor's explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination. If the judge believes that the prosecutor was sincere, the strike may be upheld.
What is the rule where a death sentence is imposed by a jury from which a juror was improperly excluded?
The conviction is subject to automatic reversal.
What is the standard for a D representing himself at trial?
A ∆ has a right to defend himself at trial if, in the judgment of the judge, his waiver is knowing and intelligent; he need not be found capable of representing himself effectively.
~ Note that a ∆ does not have a right to self-representation on appeal.
What is the Sixth A Right re Effective Counsel?
The Sixth Amendment right to counsel includes the right to effective counsel. This right extends to the first appeal. Effective assistance of counsel is generally presumed.
What must an ineffective assistance claimant show?
An ineffective assistance claimant must show:
(i) A Deficient performance by counsel; and
(ii) But for the deficiency, the result of the proceeding would have been different
(e.g., ∆ would not have been convicted or his sentence would have been shorter).
What result if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel?
In this case, the ∆ is entitled to automatic reversal.
Does the Right to Counsel apply to Sentencing Hearings?
Yes
Does the Right to Counsel apply to a habeas corpus proceeding?
No
What is the Right to Confront Witnesses?
The Sixth Amendment grants to a ∆ in a criminal prosecution the right to confront adverse witnesses.
~ The right is not absolute: Face to face confrontation is not required when preventing such confrontation serves an important public purpose (e.g., protecting child witnesses from trauma). Also, a judge may remove a disruptive ∆, and a ∆ may voluntarily leave the courtroom during trial.
If two persons are tried together and one has given a confession that implicates the other, may the statement be introduced?
No. If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the ∆'s own confession, which is admitted.
~ However, such a statement may be admitted if:
a. All portions referring to the other defendant can be eliminated.
b. The confessing defendant takes the stand and subjects himself to cross-examination with respect to truth or falsity of what the statement asserts; or
c. The confession of the nontestifying co-defendant is being used to rebut the defendant's claim that his confession was obtained coercively.
If the hearsay consists of statements made at a prior judicial proceeding, when will it be admissible?
"Hearsay," if admitted, could deny a defendant the right to confront the declarant. If the hearsay consists of statements made at a prior judicial proceeding, it will be admissible only if:
(i) the prosecution has made a good faith effort to obtain in-court testimony of the witnesses and has failed, and
(ii) the ∆ has had an opportunity to cross-examine the declarant as to testimony or has otherwise had an opportunity to test its accuracy.
What is the Burden Of Proof required by the Due Process Clause in a criminal case?
The Due Process Clause requires in all criminal cases that the state prove guilt beyond a reasonable doubt.
~ The presumption of innocence is a basic component of a fair trial.
~ However, the state may generally impose the burden of proof upon the ∆ in regard to an affirmative defense such as insanity or self-defense.
What does a mandatory presumption or a presumption that shifts the burden of proof to the ∆ do?
A mandatory presumption or a presumption that shifts the burden of proof to the ∆ violates the Fourteenth Amendment's requirement that the state prove every element of the crime beyond a reasonable doubt.
What is a guilty plea - what does it require?
A guilty plea is a waiver of the Sixth Amendment right to a jury trial. The waiver must be voluntary and intelligent. The judge must advise defendant personally:
(i) Of the nature of the charge to which the plea is offered;
(ii) Of the maximum possible penalty and of any mandatory minimum (but failure to explain a special parole term is not fatal);
(iii) That ∆ has a right not to plead guilty; and
(iv) That by pleading guilty ∆ waives his right to a trial.
What is the remedy for the failure to meet the standards for taking a plea?
The remedy for a failure to meet the standards for taking a plea is withdrawal of the plea and pleading anew.
Collateral Attacks on Guilty Pleas After Sentence - when can a plea be set aside (4 instances)?
Those pleas that are seen as an intelligent choice among ∆'s alternatives are immune from collateral attack. But a plea can be set aside for (i) involuntariness (failure to meet standards for taking a plea),
(ii) lack of jurisdiction,
(iii) ineffective assistance of counsel, or
(iv) failure to keep the plea bargain.
Does a D have a right to counsel during sentencing?
A ∆ has a right to counsel during sentencing. The usual sentence may be based on hearsay and uncross-examined reports (i.e., ∆ has no right to confrontation or cross-examination).
~ Note A ∆ in a death penalty case must have more opportunity for confrontation than need be given a ∆ in other sentencing proceedings.
What must the judge do when a ∆ who has been reconvicted after a successful appeal is given a harsher sentence than was imposed at the first trial?
If a greater punishment is imposed on a ∆ who has been reconvicted after a successful appeal than was imposed at the first trial, the judge must set forth in the record the reasons for the harsher sentence.
~ This ensures that the ∆ is not vindictively penalized for exercising his right to appeal.
~ Note that A judge need not give reasons if the greater sentence was imposed upon a de novo trial or in a state that uses jury sentencing, unless the second jury was told of the first jury's sentence.
What is the standard for Eighth Amendment cruel and unusual punishment?
A penalty that is grossly disproportionate to the seriousness of the offense committed is cruel and unusual. State appellate courts do not have to compare the death sentence imposed in a case under appeal with other penalties imposed in similar cases.
Is there a federal right to appeal?
No - There is no federal constitutional right to an appeal.
What is the rule on Equal Protection And the Right To Counsel On Appeal?
If an avenue of post-conviction review is provided, conditions that make the review less accessible to the poor than to the rich violate equal protection.
~ Thus, indigents must be given counsel at state expense during a first appeal granted to all as a matter of right.
~ In a jurisdiction using a two-tier system of appellate courts with discretionary review by the highest court, an indigent ∆ need not be provided with counsel during the second, discretionary appeal.
What is the rule on Retrial After Reversal On Appeal in regards to retrying a D?
Due process prohibits retrying a ∆ whose conviction has been reversed on appeal for any offense more serious than that for which she was convicted at the first trial.
What is the Standard in a Habeas Corpus proceeding?
~ Petitioner has the burden of proof by a preponderance of the evidence to show an unlawful detention.
~ The state may appeal the grant of a writ of habeas corpus.
~ A ∆ generally may bring a habeas petition only if the ∆ is in custody. Generally, this includes anyone who has not fully served the sentence about which he wishes to complain.
~ Note that an indigent has no right to appointed counsel at a habeas corpus proceeding.
If revocation of probation also involves imposition of a new sentence, does the D have a right to counsel?
Yes - If revocation of probation also involves the imposition of a new sentence, the ∆ is entitled to representation by counsel in all cases in which she is entitled to counsel at trial.
~ If, after probation revocation, an already imposed sentence of imprisonment springs into application, or if the case involves parole revocation, the right to counsel is available only if representation is necessary to a fair hearing (e.g., defendant denies commission of alleged acts or issues are otherwise difficult to present and develop).
What is the standard re Prisoners' First A Rights?
Prisoners' First Amendment rights of freedom of speech, association, and religion may be burdened by regulations reasonably related to penological interests (e.g., running a safe and secure prison). Note that incoming mail can be broadly regulated, but outgoing mail generally cannot be regulated.
What is Double Jeopardy?
Under the Fifth Amendment, a person may not be retried for the same offense once jeopardy has attached.
When does Jeopardy attach?
~ Jeopardy attaches in a jury trial at the empanelling and swearing of the jury.
~ In bench trials jeopardy attaches when the first witness is sworn.
~ Commencement of a juvenile proceedings bars a subsequent criminal trial for the same offense.
~ Jeopardy generally does not attach in civil proceedings other than juvenile proceedings.
What are the main exceptions allowing retrial after Jeopardy has attached?
1. A state may retry a ∆ whose first trial ends in a hung jury.
2. A trial may be discontinued and the ∆ reprosecuted for the same offense when there is manifest necessity to abort the original trial or when termination occurs at the behest of the ∆ on any ground not constituting acquittal on the merits.
3. A state may retry a ∆ who has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict.
~ Retrial is also permitted when reversal is based on the weight (rather than sufficiency) of the evidence.
4. Charges may be reinstated after a ∆ breaches her plea bargain.
When are two crimes not the same offense?
Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.
~ Note also that Even if two crimes constitute the same offense under this test, multiple punishments are permissible if there was a legislative intent to have the cumulative punishments (e.g., a ∆ can be sentenced both for robbery and using a weapon during the commission of a crime if statutes so provide).
What is the rule on Double Jeopardy for Lesser Included Offenses?
Attachment of jeopardy for a greater offense bars retrial for lesser included offenses.
~ Attachment of jeopardy for a lesser included offenses bars retrial for greater offense, except that retrial for murder is permitted if the victim dies after attachment of jeopardy for battery.
~ A state may continue to prosecute a charged offense despite defendant's guilty plea to a lesser included or "allied" offense stemming from the same incident.
What is the Exception re Double Jeopardy re New Evidence?
An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense
(i) has not occurred at the time of prosecution for the lesser offense or
(ii) has not been discovered despite due diligence.
How does Double Jeopardy relate to Subsequent Civil Actions?
The Double Jeopardy Clause prohibits only repetitive criminal prosecutions. Thus, a state generally is free to bring a civil action against a ∆ even if the ∆ has already been criminally tried for the conduct out of which the civil action arises. Similarly, the government may bring a criminal action even though the ∆ has already faced civil trial for the same conduct unless it is clear from the statutory scheme that the purpose or effect of the statute is to impose a criminal penalty.
What is the rule on Double Jeopardy with Separate Sovereigns?
The constitutional prohibition against double jeopardy does not apply to trials by separate sovereigns. Thus, a person may be tried for the same conduct by both the state and federal governments or by two states, but not by a state and its municipalities.
After jeopardy has attached, may the prosecution appeal a dismissal on D's motion?
Even after jeopardy has attached, the prosecution may appeal any dismissal on defendant's motion that does not constitute an acquittal on the merits.
~ Also, the Double Jeopardy Clause does not bar appeals by the prosecution if a successful appeal would not require a retrial. There is no bar to a government appeal of a sentence pursuant to statute permitting such review.
~ However, if the jury fails to impose the death penalty, the prosecution may not seek the death penalty on retrial after successful appeal.
What is the Doctrine of Collateral Estoppel as it relates to Double Jeopardy?
Under the doctrine of collateral estoppel, a ∆ may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in a factual determination inconsistent with one required for conviction.
Who may assert the Privilege Against Self-Compelled Incrimination?
Only natural persons may assert the privilege, not corporations or partnerships. The privilege is personal and so may be asserted by a ∆, witness, or party only if the answer to the question might tend to incriminate him.
When may the Privilege Against Self-Compelled Incrimination be asserted?
A person may refuse to answer a question whenever his response might furnish a link in the chain of evidence needed to prosecute him. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. Thus, if an individual responds to questions instead of claiming the privilege during a civil proceeding, he cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.
What is the Method for Invoking the Privilege Against Self-Compelled Incrimination?
A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so. In any other situation, the privilege does not permit a person to avoid being sworn as a witness or being asked questions. Rather, the person must listen to the questions and specifically invoke the privilege rather than answer the questions.
What is the Scope of Protection as it relates to different types of evidence?
The Fifth Amendment privilege protects only testimonial or communicative evidence and not real or physical evidence. For a suspect's communication to be considered testimonial, it must relate a factual assertion or disclose information.
What is the remedy when a prosecutor impermissibly comments on D's failure to testify?
When a prosecutor impermissibly comments on ∆'s silence, the harmless error test applies (i.e., a conviction will be overturned unless the state can prove beyond a reasonable doubt that the error was harmless - The doctrine of harmless error thus prevents an unnecessary new trial when the error alleged would not have affected the outcome at trial.)
What is "Use and Derivative Use" Immunity?
"Use and Derivative Use" immunity guarantees that the witness's testimony and evidence located by means of the testimony will not be used against the witness.
~ However, the witness may still be prosecuted if the prosecutor shows that the evidence to be used against the witness was derived from a source independent of the immunized testimony.
May immunized testimony be used for impeachment of a defendant's testimony at trial?
No - Testimony obtained by a promise of immunity is coerced and therefore involuntary.
~ Thus, immunized testimony may not be used for impeachment of a defendant's testimony at trial.
~ However, any immunized statements whether true or untrue can be used in a trial for perjury.
Does jeopardy attach If the juvenile court adjudicates a child a delinquent to prohibit him from being tried as an adult for the same behavior?
Yes - If the juvenile court adjudicates a child a delinquent, jeopardy has attached and the prohibition against double jeopardy prevents him from being tried as an adult for the same behavior.
Where real property is seized, what is required before the seizure of the real property?
Where real property is seized, notice and an opportunity to be heard is required before the seizure of the real property unless the government can prove that exigent circumstances justify immediate seizure.
The owner of personal property (and others with an interest in it) is not constitutionally entitled to notice and a hearing before the property is seized for purposes of a forfeiture proceedings.
~ A hearing is, however, required before final forfeiture of the property.
What does the Excessive Fines Clause of the Eighth Amendment apply to?
The Supreme Court has held that the Excessive Fines Clause of the Eighth Amendment applies only to fines imposed as punishment; it does not apply to civil fines.
~ Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not.
~ Even if the Clause applies, the forfeiture will not be "excessive" unless grossly disproportionate to the gravity of the offense.
Does The Due Process Clause require forfeiture statutes to provide an "innocent owner" defense?
No - The Due Process Clause does not require forfeiture statutes to provide an "innocent owner" defense (e.g., a defense that the owner took all reasonable steps to avoid having the property used by another for illegal purposes), at least where the innocent owner voluntarily entrusted the property to the wrongdoer.