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114 Cards in this Set

  • Front
  • Back
  • 3rd side (hint)
Key Const. Amendments in Crim Pro and # of corresponding rights
4th Amend (1)
5th Amend (2)
6th Amend (6)
8th Amend (1)
Fourth Amend right
Prohibition against unreasonable searches and seizures
Fifth Amend rights
1. Privilege against compulsory self-incrimination
2. Prohibition against double jeopardy
Sixth Amend rights
1. Right to speedy trial
2. Right to a public trial
3. Right to trial by jury
4. Right to confront witnesses
5. Right to compulsory process for obtaining witnesses
6. Right to assistance of counsel
Eighth amend right
Prohibition against cruel and unusual punishment
Exclusionary rule, definition
A rule prohibiting introduction of evidence obtained in violation of a defendant's 4th, 5th and 6th Amend rights
Fruit of the poisonous tree doctrine, definition
A doctrine that prohibits evidence obtained from exploitation inadmissible evidence
Fruit of the poisonous tree doctrine, exceptions/breaking the chain
(Mnemonic: the three I's)
1. Evidence obtained from an independent source
2. An intervening act of free will
3. Inevitable discovery

Side 3 question: Two Police violations that may not lead to fruit of the poisonous tree exclusion
1. Statements obtained in violation of Miranda (if:
a. the failure to give Miranda warnings was not purposeful AND
b. D's statements led to non-testimonial evidence/fruits
2. Violation of the knock and announce rule (viol. of this rule does not result in suppression of evidence o/w properly obtained)
Limitations on the exclusionary rule (5)
1. It doesn't apply to grand jury proceedings
2. Or civil proceedings
3. Or parole revocation proceedings
4. Impeachment purposes - all illegally obtained evid. can be used to impeach D's testimony (but not other witnesses)
5. It doesn't apply to knock-and-announce rule violations
Hypo: D is illegally arrested on Friday night. On Saturday, he gets out on bail. On Monday he hires and consults an atty. On Tuesday, he voluntarily returns to the police station and confesses. Will his confession be fruit of the illegal Friday night arrest.
No, b/c D's intervening act of free will broke the chain from the illegal arrest to the confession
Harmless Error Test
If illegal evidence is admitted, the resulting conviction should be overturned on appeal, unless the gov't can show beyond a reasonable doubt that the error was harmless.

Side 3 question: One error at trial is never harmless
The denial of the right to counsel at trial is never harmless.
Procedure for enforcing the exclusionary rule, 3 reqs.
1. D is entitled to judge deciding admissibility of evidence outside presence of jury
2. Prosecution has burden to establish admissibility by a preponderance
3. D has the right to testify at the suppression hearing w/o his testimony being admitted against him at trial on the issue of guilt
Fourth Amendment, Arrests, Warrant req.
Generally, warrants are not req. to arrest someone in a public place (only need probable cause)

[Side 3 question: what constitutes PC for an arrest?]

A non-emergency arrest of a person in his home does req. a warrant
PC for an arrest = trustworthy facts or knowledge sufficient for a reasonable person to believe the suspect has committed or is committing a serious crime.
Are arrests w/in the 4th Amend./why?
Fourth Amend covers seizures of persons, so arrests are w/in scope of 4th Amend.
What constitutes a seizure of persons?
When a reasonable person would believe that she is not free to leave or terminate the encounter w/the gov't
5 steps for answering a 4th Amend/Search & Seizure question
1. Gov't conduct?
2. Reas. expectation of privacy/standing?
3. Valid warrant?
4. If warrant is invalid, good faith defense?
5. If warrant is invalid & no good faith defense, 6 exceptions to warrant req.?
(5 steps for Fourth Amend question)
Step one, Gov't conduct incl.:
1. Publicly paid police, on or off-duty;
2. Any private individual acting at the direction of the public police

Side 3 question: do actions of store security guards, campus police etc. constitute gov't conduct?
No, unless they are deputized w/the power to arrest
(5 steps for Fouth Amend question)
Step two, Reasonable expectation of privacy/Standing

3 Automatic categories of standing:
1. If you own the premises searched
2. If you live on the premises searched, whether you have an ownership interest or not
3. Overnight guests have standing to challenge searches of the place where they are staying
(5 steps of Fourth Amend questions)
Step 2, Reas. expectation of privacy/standing

2 categories which sometimes give standing
1. If you own the property seized, but only if you have a reasonable expectation of privacy in the item or the area searched
2. If you are a passenger in a car, you don't have standing to challenge the search just b/c you are legitimately present in the vehicle (wtf?)
(5 Steps for Fourth Amend questions)
Step Two: Reas expectxn/Standing

No reasonable expectation to privacy (9 categories)
1. Sound of your voice
2. Your handwriting
3. Paint on the outside of your car (?)
4. Account records held by a bank
5. Monitoring your car on public roads or in a driveway
6. Curtilage - areas outside home & related buildings such as a barn
7. Garbage put out for collection
8. Land visible from a public place (open fields) or even from a plane or helicopter
9. Smell of one's car or luggage (sniff-test)
(5 steps for Fourth)
Step three: Valid search warrant?, two reqs.
1. Probable cause
2. Particularity (must state w/particularity the place to be searched and things to be seized)
PC for a search warrant, std
Police affidavit must set forth facts showing a fair probability that the contraband or evidence of a crime will be found in the area searched

*Note: Police can rely on hearsay in the affidavit and on informants' tips even if the informant is anonymous (if it meets the test)
Informants' tips, test
An affidavit based on an informant's tip must meet the "totality of the circumstances" test

Enough reliability/credibility of informant or basis of knowledge
Challenging affidavit for a search warrant
D must establish 3 things:
1. Affidavit contained a false stmt
2. The affiant intentionally or recklessly incl. the false stmt; AND
3. False stmt was material to finding PC
(5 steps for 4th Amend questions)
Step Four, Good faith defense, rule
Evidence obtained by police in reasonable reliance on a search warrant is admissible
(5 steps)
Step Four, Good faith defense, Two exceptions
1. Affidavit underlying affidavit is so lacking in probable cause or particularity that no reas. police officer would rely on it
2. Magistrate was biased (must be neutral and detached, e.g. can't be involved in investigation/prosecution)
Hypo: Homer & Marge are walking down the street, Homer sees cops walking toward them. He takes drugs out of his pocket and stuffs them in Marge's purse. He later admits the drugs belonged to him. Does he have standing to object to the search of Marge's purse?
No, b/c he does not have a reasonable expectxn of privacy in Marge's purse even if he claims he owns the items seized
Knock and announce rule, & 3 exceptions
In executing a warrant, police must knock & announce their purpose unless the police have reas. suspicion that announcing would be:
1. dangerous
2. futile; OR
3. would inhibit the investigation
Executing a search warrant, persons inside the premises
Police executing a search warrant can detain persons inside the premises, but cannot search them if they are not named in the warrant
(5 steps)
Step Five, 6 exceptions to warrant req.
1. Search incident to a lawful arrest
[Side 3 question 1: what's "incident"]
2. The automobile exception
3. Plain view
4. Consent
5. Terry stops
6. Hot pursuit and evanescent evidence
(5 steps)
Step Five, Exceptions, Searches incident to arrest, three reqs.
1. Arrest must be lawful
2. Arrest and search must be contemporaneous in time and place
3. Police can search only the person and the areas where he can reach to get a weapon or destroy evidence (his wingspan)

Side 3 question 1: How does the wingspan rule apply when D is arrested in a car?
Question 2: Reqs. to search car incident to arrest
Q1. When a person is arrested in a car, wingspan includes the entire interior compartment of car, but not the trunk.
Q2.a) Arrestee is unsecured and can gain access to interior of car; OR
b) police reas. believe evid. of the offense for which D is arrested may be found in the vehicle
Hypo: D is lawfully arrested in Philly at noon and police search him in Pittsburgh at 5 pm. Search incident to arrest?
No, b/c it's not contemporaneous in time & place
Hypo: Police arrest D for driving on a suspended license shortly after he stepped out of his car. D was handcuffed and placed in a squad car. Police then searched the interior of his car and found cocaine in a jacket. Valid search incident to arrest?
No, to search interior of car:
1. Arrestee must be unsecured and still be able to gain access to the interior of the car; --> D is secured
OR
2. Police must reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle. --> he's arrested for driving on suspended license, not drugs

Therefore, search of interior of car was invalid
(5 steps)
Step 5, Exceptions, Searches incident to arrest

Arrestee's belongings or impounded vehicle
Inventory of arrestee's belongings or inventory search of impounded vehicle are ok
(5 steps)
Step Five, Exceptions, Automobile Exception, Req.
To search anything or anyone under auto exception, police must have PC (same std for getting a search warr.)
**NOTE: PC can arise after the car is stopped. BUT the PC must arise before anything or anyone is searched.

Side 3 question: Scope of Auto exception search
If police have PC, they can search the entire car, incl. the interior compartment AND trunk. They can also open ANY container which could reasonably contain the item which they had PC to look for.
Hypo: DC police have over 30 reports that drugs are being sold out of the back of a car. Police know everything about the car, but nothing about the dealer. A cop, aware of the 30 reports, sees the car drive by at a lawful speed. He has no reason to arrest the person driving the car, but knows for sure that's the car. He stops the car, but does not arrest the driver. He searches the entire car, finds a box inside, opens it and it contains drugs. Valid seizure?
Yes, b/c PC existed (30 reports and car description), & the box could reas. contain drugs.
Hypo: A cop pulls over a car to give a speeding ticket. Car was stopped when cop noticed that the car, driver and its passengers matched a description broadcast of people involved in a theft of auto parts. He looks in the backseat and sees other things suggesting the theft of auto parts (lug nuts, wrenches etc.) He seizes the parts and arrests the occupants. Valid seizure?
Yes, the PC can arise after the car is stopped and the items giving rise to PC were in plain view.
(5 steps)
Step Five, Exceptions, Plain View
Key to good plain view seizure is officer must be legitimately present where he or she does the viewing
Hypo: Cop runs through the front door of an apt for no reason and sees a big pile of pot. Valid warrantless search?
No, b/c he wasn't legitimately present when he did the viewing.
(5 steps)
Step Five, Exceptions, Consent, 2 reqs.
For consent to be valid it must be: voluntary and intelligent.
Hypo: Cops come to your house and say "we have a warrant. Can we look around?" You say okay. They find drugs. Valid search?
No, b/c police saying they have a warrant negates consent (BUT police do NOT have to tell you that you have a right not to consent)
(5 steps)
Step Five, Exceptions, Consent, Third-party consent, Rule
Where two or more people have an equal right to use a piece of property, either can consent to its warrantless search. However, if both people are present and one person consents to the search and the other does not, then the one who does not consent controls.
(5 steps)
Step Five, Exceptions, Terry stops, definition
Terry stop = brief detention for the purpose of investigating suspicious conduct
(5 steps)
Step Five, Exceptions, Terry stops, std
Police need a reasonable suspicion (less than PC)
(5 steps)
Step Five, Exceptions, Terry frisk, definition
Pat down of outer clothing and body to check for weapons
(5 steps)
Step Five, Exceptions, Terry frisk, req.
Officer must reas. think the suspect has a weapon
Hypo: A cop observes 2 teenage boys pushing a baby carriage down the street at midnight and notice that where the baby was supposed to be, there was a computer. Can police stop and frisk?
They can stop b/c they have reas. suspicion that criminal activity was occurring.

They can do a pat-down if they reas. believe boys were armed.
(5 steps)
Step Five, Exceptions, Terry frisk, taking evidence during a patdown
If during patdown, cop feels something he reasonably believes based on its plain feel is a weapon or contraband, cop can reach into suspect's clothing and seize the item.
Hypo: Police have a reas. suspicion to stop & frisk suspects. They pat them down and feel something they believe is a weapon. They reach inside and pull out the evidence, which is not a weapon, but evidence of a previous crime reported in the neighborhood. Admissible?
Yes, even though they believed it was a weapon and it turned out not to be, the evidence is still admissible.
(5 steps)
Step Five, Exceptions, Hot Pursuit, rule
Police in hot pursuit of a fleeing felon may make a warrantless search or seizure and even pursue into a private dwelling

Side 3, MBE question, rule of thumb for time limit on "hot pursuit"
If cops are not w/in 15 mins. of the fleeing felon, it's not hot pursuit.
(5 steps)
Step Five, Exceptions, Evanescent Evidence, rule
Police may seize w/o warrant evidence that is likely to disappear before a warrant can be obtained

(e.g. DNA under D's fingernails, b/c D might wash hands)
Hypo: A cabbie w/a CB hears the broadcast of a fleeing felon over the radio. He sees the person run into a house. He calls police who arrive about 8 mins. later. Police enter house w/o warrant and find a gun and bloody clothes all linking D to the crime. Admissible?
Yes, police entered the house under the hot pursuit theory, which is an exception to the search warr. req.
Exceptions permitting warrantless searches
Generally, areas where there is pervasive gov't regulation may give rise to permission of warrantless searches.

(E.g. Areas where warrantless searches have been upheld:

Businesses w/in highly regulated industry

Searches to seize spoiled or contaminated food

Airline passengers prior to boarding

Searches of parolees and their homes

Gov't e'e desks and files

Drug tests of public school students involved in school activities)
Searches of public school students, req.
Doesn't req. PC, just reasonable grounds for the search.

Reas. grounds =
1. moderate chance of finding evid
2. method of search is reasonably related to objectives of the search; AND
3. the search is not excessively intrusive in light of the age & sex of the student & nature of the infraction
Wiretapping and Eavesdropping searches, general rule & exception
General rule: Warrant req.

Exception: "Unreliable ear"
If D speaks to someone else, he assumes the risk that the person will consent to gov't monitoring or be wired.
Confessions, 4 Implicated Const. Amendments & Analysis
1. Fourth - Possible unreas. search
2. Fifth - Miranda warnings & Invoking right to counsel or to remain silent
3. Sixth - Right to counsel
4. Fourteenth - Voluntariness
(Confessions, 5th Amend. analysis)
Miranda warnings, 4 reqs.
1. Rt to remain silent
2. Anything you say can be used against you
3. Rt to an atty; appointed
4. Rt to terminate the investigation at any time
(Confessions, 5th Amend. analysis)
Miranda warnings, when required
Custodial interrogation

Custody - When D is not free to leave (objective std)

[Side 3 question, 2 specific situations that are NOT custody]

Interrogation - Any conduct where police knew or should have known they might elicit an incriminating response from the suspect
Probation interviews and
Routine traffic stops
(Confessions, 5th Amend. analysis)
Miranda warnings, when NOT required
When D gives a spontaneous statement
(Confessions, 5th Amend. analysis)
Miranda, waiver requirements
Miranda waiver must be knowing, voluntary and intelligent
Hypo: D is detained and read Miranda warnings. At the end of the warnings, police ask if he would like to waive his rights and he shrugs. Waiver?
No, silence or shoulder-shrugging do not constitute waiver.
Miranda warnings and jailhouse confessions
Generally, Miranda warnings are necessary only if D knows he is being interrogated by a gov't agent
Effect of Miranda invocation of
1. Rt to remain silent
2. Rt to counsel
1. If D invokes right to remain silent, questioning must cease, but SCt has allowed later questioning after a break on an unrelated crime

2. If D invokes rt to counsel, police cannot question D on any topic (NOT offense specific) w/o counsel present, unless D later waives rt to counsel
Public safety exception to Miranda
SCt has allowed interrogation w/o Miranda warnings where it was reasonably prompted by a concern for public safety (e.g. to locate a hidden gun)
Fifth Amend. - Rt to counsel, effect of D's invocation
Once D requests an atty, reinitiation of the interrogation by police w/o his atty present violates the Fifth Amend rt to counsel
Fifth Amend - Rt to counsel, when it arises
When a suspect on hearing the Miranda warnings says he wants a lawyer, suspect has invoked 5th Amend rt to counsel and police may not reinitiate interrogation on any topic w/o his atty present

**NOTE: Fifth Amend rt to counsel is NOT offense specific (unlike Sixth)

Side 3 question, when does a suspect invoke his Sixth Amend rt to counsel?
All other times other than hearing Miranda warnings, a suspect getting a lawyer invokes his Sixth Amend rt to counsel which IS offense specific (i.e. atty only has to be present when D is being asked about the case the atty represents him on)
Hypo: (Based on McNeil case) Defendant McNeil is arrested and charged w/burglary. His is appt'ed an atty. He cannot make bail, so he remains in jail for 2 weeks. After 2 weeks, police give him Miranda warnings, he waives his rts and they ask him questions about an unrelated murder. He makes damaging stmts. Are the stmts admissible?
Yes, D didn't request an atty after hearing Miranda warnings, he waived them.

His Sixth Amend. rt to counsel is offense specific, so his atty only needed to be present if police questioned him about the burglary case.
Sixth Amend - Rt to counsel, scope/stages at which applicable
The right applies to all criminal proceedings AFTER formal charges have been filed. Police cannot question D outside presence of counsel once he has been charged unless he has waived his right to counsel.

**NOTE: Fifth Amend rt to counsel exists before formal proceedings have begun
Pretrial identification, two ways to attack
1. Denial of 6th Amend. right to counsel
Suspect has right to an atty at a. any post-charge line-up; or
b. any showup (one on one)

**NOTE: No rt to counsel when they show the victim or witness photos

Side 3, second method of attack
2. Denial of Due Process
D can attack an identification as denying DP if it is
a. unnecessarily suggestive; AND
b. substantially likely to produce a misidentification
Pretrial Identification, Remedy
The remedy for unconstitutional identifications is exclusion of the in-court identification. The witness or victim will not be allowed to testify.

Side 3, exception
V or witness may still be allowed to testify if the gov't can show an independent source (independent of the bad line-up).

The most common indep. source is: ample opportunity to observe D at the time of the crime (witness viewed D close up for 40 mins. during commission of the crime).
Pretrial Procedures, Bail, General rules
[1. Bail should be set no higher than to secure D's appearance at trial.]
2. Refusal to grant bail is appealable immediately (don't have to wait until trial is over).
3. Arrestees can be constitutionally held w/o bail if they pose a danger or would fail to appear at trial.

Side 3, tips for MBE
If a state provides for bail (which most do) and arbitrarily denies bail to D, it will violate DP; arrestees have to be given a chance to prove eligibility.
Pretrial Procedures, Grand Juries, D's access
Grand jury proceedings are secret. D has no right to notice of a grand jury considering an indictment against him, to be present, to confront witnesses or introduce evidence.

**Note: not all states use GJs, in some, the prosecutor just prepares an "information" (lists the charge against D) and has discretion about whether to charge
Pretrial Procedures, Grand Juries, Witness's rights
A witness subpoenaed to testify before the grand jury does not have a right to Miranda warnings, to be told that he is a potential defendant, or to have an atty present

**Note: But the "witness" (potential defendant) can refuse to answer questions at the GJ on grounds that they may incriminate him.
Pretrial Procedures, Grand Juries, Admissible Evid.
A grand jury may base its indictment on evid. that would be inadmissible at trial
The only limit on prosecutor's discretion/power for GJs is that they can't exclude minorities from the grand jury. O/w automatic reversal of indictment.
Sixth Amend - Rt to speedy trial, general rules
1. Attached when D has been arrested or charged
2. Totality of circ. test.
Factors:
a. Length of delay (duh)
b. Reason for delay
c. Whether D has asserted his right
d. Prejudice to D
3. Remedy is dismissal w/prejudice
Trial - Prosecutor's Duty to Disclose
Gov't has to disclose material, exculpatory evid. Failure to do so (willful or inadvertent) violates DP and may be grounds for reversal (if D can show it's exculpatory and prejudice has resulted)
Trial - D's Duty to give notice
D has to give notice if he is going to use an alibi or insanity defense
Trial - D's competency
D lacks competency if he doesn't understand the trial or charges
Or if he can't reasonably help his atty
Trial - Reqs. for Judge
D has the right (a DP right) to an unbiased judge, which means the judge does not have
a. A financial int in the outcome; or
b. Actual malice against D
Hypo: Judge Judy told D when she sentenced him last time, "if you come back thrrough my court again this year, I'll give you the maximum." Bias?
No, she doesn't have actual malice.
Trial - Other DP rights
General fairness

(e.g. can't make D wear prison clothing to trial

can't make D appear visibly shackled (unless there's some compelling reason)

can't expose jury to influence favorable to prosecution
Trial - Right to Jury Trial, When it applies
Right to jury trial attaches any time:
1. 6 mos. - D is charged with a crime for which the maximum sentence exceeds 6 mos.
2. Contempt (maybe) - If it's a criminal contempt TRIAL and the cumulative penalties exceed 6 mos. (but if judge imposes contempt penalty during another trial, penalties can aggregate for more than 6 mos. & no rt to jury trial)
Trial - Right to Jury Trial, Number and Unanimity of Jurors
Minimum # of jurors is 6. If there are only 6, verdict has to be unanimous.

No constitutional right to unanimous 12 juror verdict; SCt has approved 10 to 2 and 9 to 3 verdicts.
Trial - Right to Jury Trial, Cross-Sectional Req.
D has the right to have the jury POOL reflect a fair cross-section of the community, but no right to have the empaneled jury reflect a fair cross-section of the community.
Trial - Peremptory Challenges
Peremptory challenges can generally be used for any reason, but EP cl. forbids use to exclude potential jurors on account of race or gender
Trial - Right to Counsel, When it applies
D has a right to counsel at trial for all felony cases and for misdemeanors only if imprisonment is actually imposed.
Trial - Right to Counsel, Effective Assistance, std
6th Amend. rt to counsel incl. right to effective assistance. To show ineffective assistance, burden is on D to prove:
a. counsel was deficient; and
b. result would have been different w/effective counsel

Tough std for D to meet, usu. not successful
Trial - Rt to Counsel, Joint representation
D has no right to joint rep w/co-defendants if gov't can show a potential conflict of int.
Trial - Rt to Confront Witnesses, Confessions and Co-Defendants
If 2 Ds are tried together an one has confessed implicating both himself and the other D, inamissible, unless:
1. All references to D can be eliminated
2. Confessing D takes the stand and is subject to cross-exam; OR
3. Confession is being used to rebut non-confessing D's claim that his own stmts were obtained coercively (very specific...)
Trial - Rt to Confront Witnesses, Unavailable Witnesses
Stmts of witnesses who aren't testifying at trial are inadmiss, unless:
1. Declarant is unavailable; AND
2. D had an opportunity to cross-exam at the time the stmt was made
Guilty Pleas and Plea Bargaining, Reqs.
Judge must determine that D's plea is voluntary and intelligent, making sure D knows (MNOP):
1. The max penalty and any mandatory minimum
2. The nature of the charge
3. judge's decision must be On the record
4. That D has a right to Plead not guilty and demand a trial
Guilty Pleas and Plea Bargaining, 4 Bases for withdrawing a guilty plea
1. Plea was involuntary
[Side 3, Note on involuntariness]
2. Lack of jurisdiction
3. Ineffective assistance of counsel
4. Failure of prosecutor to keep agreed upon plea bargain
A plea bargain is not involuntary merely b/c prosecution threatened to charge D w/more serious crime if he did not accept the plea bargain.
Hypo: Smith agrees to plead guilty in exchange for prosecutor's promise to consolidate all charges and make no sentence recommendation. Smith pleads guilty, judge accepts, pros. recommends the maximum sentence. Can D withdraw his plea?
Yes, b/c the prosecutor breached an agreed upon plea bargain.
Punishment, Death Penalty, For Murder
1. Judge or jury must have reasonable discretion,
2. Full information concerning Ds (including all mitigating evidence), and
3. The statute providing for the death penalty cannot be vague.
Punishment, Death Penalty, Rape or Felony Murder
8th Amend. prohibits punishment grossly disprop. to crime, so if D did not intend to kill V, death penalty is prohib.
Punishment, Death Penalty, Competency req.
8th Amend prohibits executing D if insane at time of execution, even if he was sane at the time the crime was committed

Can't execute mentally retarded D

Can't execute D if under 18 when crime was committed
Appeal - Rt to an appeal, rule
No federal constitutional right to an appeal
Appeal - Rt to Counsel on Appeal
If D has an avenue of post-conviction appeal, D has right to counsel on first appeal (and indigents must be appointed attys)

For discretionary appeals (second appeal), indigents need not be provided w/counsel.
Double Jeopardy, When it Applies
Jeopardy attaches in a jury trial when the jury is sworn in. It does not generally attach in civil proceedings other than juvenile proceedings.
Double Jeopardy, Exceptions Permitting Retrial
1. Hung jury
2. Mistrials for manifest necessity (e.g. D gets ill and it doesn't make sense to keep jury together while he's in the hospital)
3. A retrial after a successful appeal (unless reversal was b/c of insufficient evid. to support a guilty verdict)
4. D breaches a plea bargain.
Double Jeopardy, Same Offense, General rule
Two crimes are the same offense unless each crime req. proof of an add'l element that the other does not require, even though the some of the same facts may be necessary to prove both.
Double Jeopardy, Same Offense, Multiple punishments
Even if 2 crimes constitute the same offense, D can receive multiple punishments if the statute so provides
Double Jeopardy, Lesser Included Offenses
Being put in jeopardy for a greater offense bars retrial for any lesser included offense (and vice versa)

Side 3 question, Exception
If D is charged w/battery and V subsequently dies, he can be charged w/murder.
Double Jeopardy, Lesser Included Offenses, Exception
An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense
1. has not occurred at the time of the prosecution of the lesser offense, or
2. has not been discovered despite due diligence
Double Jeopardy, Separate Sovereigns
Double Jeopardy bar does not prohibit prosecution by separate sovereigns, so a person can be tried for the same conduct by both the state and fed gov'ts or by two states
(but not a state and its municipalities)
Hypo: Thelma and Louise are charged w/murder. Thelma takes a deal in exchange for her testimony against Louise. Louise is convicted, but successfully appeals her conviction (on grounds other than Thelma's testimony) and is granted a new trial. Thelma refuses to testify. Does double jeopardy prevent the prosecutor from recharging Thelma?
No, b/c when D breaches a plea bargain agreement, it's an exception to double jeopardy. Charges can be withdrawn and reinstated.

The agreement to testify applies to the original trial and any subsequent retrial.
Hypo: Homer falls asleep at the wheel, hits and kills two people, then flees the scene. He is tried in separate trials for manslaughter and hit-and-run. Does double jeopardy prohibit prosecution for both?
No, b/c manslaughter and hit-and-run are not the same offense. They both req. proof of an add'l element
(manslaughter - dead V
hit-and-run - driving away)
Privilege against self-incrimination, who may assert
Any person in any type of case (but not corporations or partnerships).

The privilege is personal and can only be asserted when a person's responses might tend to incriminate him, not others.
Privilege against self-incrimination, Terry stops
Being req. to furnish one's name during a Terry stop doesn't viol. Fifth Amend, b/c that info does not incriminate a person.
Privilege against self-incrimination, invocation
D must assert the privilege the first time the question is asked, or he has waived the privilege for all subsequent criminal prosecutions.
Privilege against self-incrimination, scope of protection
It applies to testimonial, but not physical evidence (gov't can take hair or blood samples).

Can't invoke Fifth for being compelled to produce documents, b/c that doesn't involve testimony.
Hypo: D is required to appear in a line-up and read the phrase "Your money or your life!" Violation of self-incrimination clause?
No, only testimonial evidence is protected, and the words were used only for identification, not as testimony.
Privilege against self-incrimination, effect of waiver in civil proceedings
The privilege must be claimed in civil proceedings to prevent waiver for a later criminal prosecution. If D responds to questions during a civil proceeding, he cannot later bar that evid. on Fifth Amend. grounds.
Privilege against self-incrimination, Three ways to eliminate
1. Grant of immunity
2. No possibility of incrimination (e.g. statute of limitations has run on the underlying crime D committed)
3. Waiver - if D takes the witness stand, he has waived the privilege for all legitimate subjects of cross