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103 Cards in this Set
- Front
- Back
- 3rd side (hint)
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Does the exclusionary rule apply to HIPAA violations?
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No
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Can I search someone's trash?
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Not if they've left it in an area not accessible to the public and w/in their curtilage
Still has a reasonable expectation of privacy, even if contracted w/ 3d party to haul it away |
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Do I have an expectation of privacy in my DNA?
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Not after it's been lawfully obtained by the police
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How long does a warrant last?
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96 hours
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Can I execute a warrant in the middle of the night?
What force can I use to execute a warrant? |
Day or night
All reasonable force necessary to execute warrant |
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I smell ether emanating from a house or car, can I search?
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Not without more, even though ether is used to make meth.
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I smell pot coming from a car, can I search?
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Yes
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I've found a driver, unconscious, and suspect she was driving drunk, can I do a blood test?
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Yes, officer with reasonable grounds to believe DUI can order blood, breath, urine, or other test, even if driver unconscious.
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Officer wants me to take a blood test, can I consult an attorney before hand?
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Nope
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Does an officer have to give me any warnings before a sobriety (blood/breath/etc) test?
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Must warn you that refusing test can result in license suspension and that test can be used against you in court
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I've submitted to the sobriety test, does the officer have to give me any new warnings?
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Yes - must advise that you can consult with an attorney AFTER THE TESTING and may secure additional testing at your expense to contest results
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Can an officer pull over a car that has a bouncy tire?
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Yes - officer is allowed to conduct a PUBLIC SAFETY STOP on a vehicle if SPECIFIC AND ARTICULABLE facts support a safety inquiry
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;Can I ask about a weapon before Mirandizing a suspect?
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KS recognizes a police safety exception - officer may ask about location of weapon before giving Miranda
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How do I challenge the admissibility of a confession?
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1. Move, in writing, before trial or at preliminary hearing
2. Determination made outside jury's hearing 3. Prosecution has burden to show confession voluntary 4. To preserve for appeal - object when confession entered into evidence |
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How does KS view bail?
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Defendants SHOULD be released on bail.
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What discretion are judges given in setting bail?
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May impose additional conditions on D in order to assure defendants appearance and public safety.
Ex: restrictions on travel, abode and association |
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I've been arrested, can I test the charges against me?
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Unless arrested on a grand jury indictment (rare) any D charged w/ felony, as well as state, has right to a preliminary hearing to determine probable cause.
w/in 10 days (not fatal if heard outside 10 days) |
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How are most felonies charged in KS?
What does that consist of? |
An "information" filed by the prosecution
Consists of: 1. Plain and concise statement of essential facts of crime 2. Names of all witnesses known to the prosecution (add'l witnesses may be added later assuming no prejudice to D) |
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I need help developing the facts for an information, can I get some help from the court?
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Yes - a county atty or AG may conduct an investigatory "inquisition" which is a one-person grand jury.
Testimony is recorded, but no findings are made. No defense counsel may be present. |
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What are my speedy trial rights?
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If in jail, must be tried w/in 90 days.
If on bail, must be tried w/in 180 days. |
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What are some of the reasons the speedy trial rights might be extended beyond the statutory period?
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Delays caused by D
D not competent Court docket full |
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The initial charge was dismissed and now the state has recharged me. Can I tack these two together for my speedy trial rights?
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Generally no, as long as adequate showing of necessity for dismissal and the state was not attempting to manipulate the speedy trial requirements
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ICE sends a notice that they're going to take me into custody in the future and asking to be kept informed of my trial. Does this change any speedy trial computation?
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No - the speedy trial right applies to anyone held in jail SOLELY for the charges at issue in trial.
ICE request in this case does not constitute a hold for changing the 90 rule. |
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What do the two sides have to turn over in discovery?
Is it automatic, like in the Federal courts? |
Prosecution - ALL material evidence
Defense - only evidence planned to be used at trial Not automatic, must be requested by either side |
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I've got an alibi, can I spring it on the prosecution?
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No, must give them at least 7 days notice prior to trial.
State then has 7 days to provide rebuttal witnesses. Court can prevent use of untimely noticed alibi evidence. |
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I'm crazy, can I spring that on the prosecution? Any special rules for applying the "insanity defense?"
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No.
First, there's no insanity defense in KS, you can only use it to negate an element of the offense charged. Must give notice of intent to use mental illness evidence w/in 30 days after arraignment |
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It's a media circus, can I change venue?
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Courts have discretion to grant a change of venue if D cannot receive a fair trial because of media publicity.
Media publicity alone isn't enough to require venue change. Other, lesser remedies for media publicity: jury sequestration, continuance. |
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Are misdemeanor cases tried to a judge or jury?
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Generally, judge, unless D requests jury
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How many jurors?
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Felony = 12, less ONLY with court, prosecution and defense approval
Misdemeanor = 6 |
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Can the court make concessions to make a child's testimony easier?
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May allow a child victim to testify by closed-circuit TV if court finds by clear and convincing evidence that testifying in open court would traumatize child to point where he would be unable to reasonably communicate w/ jury.
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The feds try me for a crime. Can KS try me for the same crime? What about MO?
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KS - no, doesn't follow separate sovereigns rule
MO - follows separate sovereigns rule |
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How bad do improper closing arguments have to be to get reversal?
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So gross and flagrant as to prejudice the jury against the D and deny him a fair trial.
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Prosecution uses closing arguments that are so gross and flagrant as to prejudice the jury against the D and deny him a fair trial. My counsel doesn't object. It's reversible error, right?
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Not for the closing argument, no. Must object during closing to preserve that as reversible error.
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I want to move to vacate the judgment, what's that called, and what's it like in the Federal system?
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Called "motion to vacate judgment"
Like habeas corpus |
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Where is the motion to vacate judgment filed? How is that different than than Feds?
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In sentencing court - unlike Feds, filed where moving party is detained.
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What can I get vacated judgment from?
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1. Violation of US Const., fed law or KS Const.
2. Lack of jurisdiction 3. Fact that sentence exceeds statute |
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When does jeopardy attach?
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1. D was formerly prosecuted for same crime, based on same facts.
2. Former prosecution resulted in either conviction or acquittal, OR 3. prior trial resulted in a determination that the evidence was insufficient to warrant a conviction |
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Requirement for guilty/nolo contendre plea?
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Court must find a factual basis for plea
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Drunk driving plea?
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Cannot avoid mandatory penalties.
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What is motion for judgment of acquital?
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Tests sufficiency of evidence to support conviction.
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What is standard for motion for judgment of acquital?
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Whether after reviewing all evidence, in light most favorable to prosecution, could rational factfinder find D guilty beyond a reasonable doubt.
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Can state appeal from judgment of acquittal?
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No
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There's a really bad error in the charging document, can I use that in my appeal?
If so, what's it called? |
Generally, no, defects are waived unless raised BEFORE trial.
Exceptions: 1. Charging document didn't charge a crime 2. Court didn't have jurisdiction Called "Arrest of Judgment" |
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Time frame for arrest of judgment?
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10 days after conviction
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What does arrest of judgment look at?
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Not sufficiency of evidence, only sufficiency of charging instrument
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Is it better to challenge bad charging documents before or after trial? Is there some incentive to do it before?
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Before
After, then instrument liberally construed in favor of validity. |
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When is a charging document sufficient?
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When, taken as a whole, it
1. alleges the elements of the offense charged 2. Fully informs defendant of the charge Common sense prevails over technicalities |
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Rule for jury instructions?
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Proposed jury instructions only allowed when some evidence presented at trial supports them.
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An eyewitness is critical to the prosecution's case, is there a special instruction?
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If there is a serious question about the reliability of the identification, must give cautionary instruction telling jury of factors to consider
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Eyewitness is critical part of prosecution's case and there is a serious question about the reliability of the identification. Jury is to be instructed on the factors to consider in weighing the credibility of the eyewitness, what are those factors?
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1. W's opportunity to view accused at time of crime.
2. W's degree of attention at time of crime. 3. Accuracy of the W's prior descriptions of the D 4. W's level of certainty 5. Length of time b/w crime and ID 6. W's capacity to observe event 7. ID product of suggestion? 8. Nature of event observed and likelihood W would perceive/remember it correctly |
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I disagree w/ jury charge, what should I do? Consequences?
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Object, otherwise, issue generally waived.
If failure to object, jury instruction upheld unless CLEARLY ERRONEOUS and BUT FOR THE ERROR there's a real possibility jury would have cleared D |
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Got some really old evidence, can I exclude it as non-probative?
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Nope, age goes to weight of evidence.
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Can I use tax appraisal of land to prove its value in court?
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No, not admissible for land's value for other purposes
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Can I Perry Mason the other side?
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Court can exclude relevant evidence if probative value is substantially outweighed by danger of unfair or harmful surprise.
So, no, no surprise witnesses! |
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Can I introduce admissions made during negotiations to settle?
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Yes, only offers to compromise are excluded - express admissions of liability and statements of fact made during settlement negotiations are admissible.
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What happens when there are more than one D and a settlement with less than all of them - who has to be informed?
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Court and all parties must be informed of terms of settlement.
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I withdraw my guilty plea - can that withdrawal be introduced in evidence?
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Yes
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What about communications during dispute resolutions - admissible?
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No
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What about communications during dispute resolutions - discoverable?
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No
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Can I subpoena a neutral (the mediator in a dispute resolution)?
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No
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When does the statute protecting neutrals not apply?
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1. Information reasonably necessary to allow investigation of neutral or for defense of neutral in action AGAINST neutral
2. Info neutral required to report by law or court order 3. Info reasonably necessary to prevent comm. of crime or fraud or stop ongoing crime/fraud 4. Report to court that a party has threatened violence v. party (family), mediator, employee of court - IF APPARENT INTENDS TO CARRY OUT 5 Info concerning child abuse/neglect |
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When does the statute protecting neutrals not apply?
Short version |
1. Against neutral
2. Court order 3. Crime/fraud 4. Violence 5. Child abuse |
ACC VC
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I want to prove character, what can I use in Fed, KS court?
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Fed: Opinion, reputation
KS: Also prior convictions |
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When is character evidence admissible?
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Generally admissible in civil cases and criminal cases, to prove conduct in accord w/ character, except when trait is for care/skill offered to prove P was not negligent
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How can prosecution rebut crim. def.'s bad character evidence of victim?
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Only w/ evidence of victim's good character for same trait.
Prosecution may not rebut w/ evidence of bad character for the same trait |
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Can I impeach the sexual character of a rape victim?
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Not in criminal case
In civil case, can introduce sexual behavior only if probative value outweighs harm/unfair prejudice |
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Am I limited in KS to the standard reasons for introducing prior bad acts?
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No - can introduce for other purposes w/ limiting instruction
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Can I introduce evidence that D is a drug addict and that led him to robbery?
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Maybe - CAN introduce it to show a connection to robbery, cannot introduce it to show as a class meth heads commit crimes
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Prior acts of sex assault or child molestation admissible?
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No, only to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or accident
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Judicial notice, conclusive or rebuttable?
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Conclusive
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Judicial notice, usable in criminal or civil?
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Both - conclusive in both
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How old is ancient in KS for ancient document exception to hearsay?
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30 years
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What are copies for best evidence rule?
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Carbon copies and microfilmed business records
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Can I prove the contents of a lost original with the admissions of a party?
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No - neither fed or state allows
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Past recollection recorded - does that go to the jury as an exhibit?
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Fed - no, just read to jury
KS - yes |
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Can a witness give her opinion about the credibility or truthfulness of another witness?
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No
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What test for scientific evidence in KS?
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Frye - generally accepted
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Besides standard experts, who must be "qualified" as an "expert?"
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"Skilled" witnesses like bankers, landowners testifying about land values
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Can an expert rely on inadmissible evidence in KS?
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No
Fed - yes |
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Can an expert testify about the mental state of the D?
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Yes, can testify that D had requisite mental state at issue when mental state is an element of crime charged or defense
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Can an expert testify hypothetically about common behaviors of sexually abused children?
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Yes - and can say whether child in question is behaving consistently w/ behaviors.
Cannot testify whether he believes child is telling truth. |
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Can I impeach a criminal defendant with prior convictions involving dishonesty or false statement?
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Fed - Yes
KS - No, unless D first offers evidence in support of credibility |
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Can I use felony convictions not involving dishonesty?
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Fed - Yes with balancing
KS - no |
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What about juvenile adjudications, can I use those against the defendant?
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Treat like a prior conviction - involving dishonest, only if D opens door, not involving dishonesty - no
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Can I use extrinsic evidence of bad acts?
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KS - yes
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If I want legal advice on how to commit a crime or tort, is that privileged?
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Fed - not applicable for future crime planning
KS - not applicable for either crime OR tort |
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Does KS recognize psychotherapist patient privilege?
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No. but recognizes doctor-patient and psychologist-patient privileges
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Can a spouse be required to testify against other spouse in criminal trial?
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Yes, as long as no confidential communications
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I've divorced my wife, can she be made to reveal communications during our marriage in my criminal trial?
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No, spousal communication privilege survives divorce in criminal cases.
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I've divorced my wife, can she be made to reveal communications during our marriage in my civil trial?
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Yes
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Can I introduce prior inconsistent statements?
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Fed - only if under oath
KS - yes |
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How do we classify party admissions for hearsay?
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Fed - nonhearsay
KS - exception |
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When are conspirator statements vicarious admissions in KS?
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While plan was in existence and before its complete execution or other termination
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I want to use the testimonial admissions of a conspirator against defendant, any special rules before I can?
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Must be able to confront (cross-examine) the declarant.
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Can I use former testimony against someone who wasn't at the prior trial?
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Civil - as long as some prior party had a similar motive to examine witness
Criminal - no |
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When are dying declarations admissible?
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KS - Any case, need to relate to cause or circumstance of death
Fed - only prosecution for homicide or civil action, and must concern cause or circumstance of death |
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Statements against interest, declarant unavailable?
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Fed - yes
KS - no |
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What interest must statement be to be against interest?
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Fed - pecuniary, proprietary, or penal
KS - same plus SOCIAL |
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I've employed a doctor to testify on my behalf, can statements of past bodily condition survive hearsay challenge?
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Fed - Yes
KS - no, only treating physicians are allowed this exception |
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Medical records as business record exception - does that include the medical diagnosis or treatment?
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Fed - Yes
KS - no, only extends to records of acts, conditions or events |
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Is there a KS exception for official writings?
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No, all documents must satisfy business records exception or some special statute (Vital Statistics Act)
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How do I introduce a learned treatise in KS?
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Can be admitted (even absent expert testimony) if judge finds it reliable authority.
Fed - must be in conjunction w/ expert testimony and must be read to jury |
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Is there a catch-all hearsay exception in KS?
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Generally no, but for reliable statements of child victims. (Apply confrontation clause)
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