Legal: 5Th And 6Th Amendment

Front 1

4 broad themes of 5th Amendment

Back 1

-Self incrimination
-Double Jeopardy
-Due Process
-Miranda Rights

Front 2

"No Person"

Back 2

Any person, in US or overseas, subject to US law and facing prosecution in US court, 5th Amendment still applies no matter where they are located

Front 3

Capital Crime

Back 3

-One where subject may face death penalty

Front 4

Infamous crime

Back 4

Felony, punished by one or more years in prison

Front 5

Double Jeopardy

Back 5

Can never be tried in the same jurisdiction for the same offense if found not guilty. A VERDICT defines double jeopardy (so once acquitted or found guilty)
-Can be tried in both civil and criminal courts for same crime

Front 6

"Nor shall be compelled in any criminal case to be a witness against himself"

Back 6

-If charged with a crime you NEVER have to testify against yourself in court, but can if you want. By volunteering to testify, you waive your right not to be compelled to be a witness against yourself (5th Amendment)

Front 7

"nor be deprived of life, liberty or property without due process of law"

Back 7

Notice: charges must be explained to you
Have right to have opportunity to be heard

Front 8

"nor shall private property be taken for public use without just compensation"

Back 8

Eminent Domain: When a state takes private land for public use it must compensate the property holder based on fair market value

Front 9

Purpose of GJ

Back 9

To determine if enough evidence for case to continue through process and proceed to trial. Process can be waived by defendant in lesser crimes and move to trial, but can't be waived for capital punishment case.

Front 10

Composition of GJ

Back 10

Body of "folks" up to 23, varies by state, always odd #

Front 11

GJ selection

Back 11

From jury pool, taken from registered voters

Front 12

GJ subpoenas

Back 12

How GJ evaluates information

Front 13

Duces tecum

Back 13

GJ asking for documents to review

Front 14

Ad testifancum

Back 14

Witness called on to testify in front of GJ

Front 15

2 Outcomes of GJ proceedings

Back 15

1) True Bill: When signed by US Attorney, this is an indictment
2) No Tue Bill: GJ did not make any indictments and case is dismissed w/o prejudice -- allows gov't to bring case up after proceedings are completed

Front 16

Proceedings are closed pursuant to FRCP Rule 6E -- why?

Back 16

Secrecy in order to protect witness
-Defendant gets protection in event of no true bil
-States' case is protected if it wants to go to trial
-Jury pool protected in event of a trial

Front 17

You must be on the 6E list to see GJ information, who can put you on?

Back 17

Only USA...have to go thru chain of command and establish need to know

Front 18

One exception to prohibition of 6e material distribution

Back 18

National security information is the only thing that trumps secrecy of GJ info, assuming one has clearance and a need to know, not dependent on GJ outcome

Front 19

5th Amendment: Self-Incrimination

Back 19

Can not be compelled to be a witness against yourself

Front 20

Miranda v. Arizona

Back 20

LANDMARK case: Miranda couldn't afford attorney, police didn't tell him about 5th and 6th Amendment rights

Front 21

Why do we have Miranda?

Back 21

To stop police abuse, notify individuals of their rights, to safeguard against and avoid self-incrimination

Front 22

Effect of failure to administer Miranda

Back 22

Statements defendant made are inadmissible at trial if Miranda rights not read EXCEPT for inevitable discovery (exclusionary rule) established by Brewer v. Williams

Front 23

2 elements that trigger requirement of Miranda rights (BOTH parts)

Back 23

1. Custody: One would feel like they are not free to leave.
2. Interrogation: Confrontational questioning, designed to get admission of guilt

Front 24

3 Burdens for waiving Miranda rights - LEO must prove burden

Back 24

-Voluntary (absence of duress)
-Knowing (Must know rights and know you're waiving them)
-Intelligent (Can't be intoxicated/mentally challenged)

Front 25

3 formats of waiver of Miranda rights

Back 25

-Verbal "I understand and waive"
-Written - signed statement
-Implied waiver..Beghuis v. Thompkins

Front 26

Beghuis v. Thompkins and Miranda

Back 26

-Defendant read rights, didn't want to talk. Police asked "Did you pray for forgiveness in crime you committed? - yes" SC ruled suspect had implied a waiver of Miranda rights

Front 27

Right to silence time limitations

Back 27

If an individual has been mirandized and doesn't want to talk, FBI must cease interrogation for 2 hours. After they can come back, point our rights and he/she refuses then it stops.

Front 28

Right to silence and COUNSEL

Back 28

If suspect stops talking and requests a lawyer, there must be a 14 day break in questioning. If lawyer is present, questioning can continue.

Front 29

Maryland v. Shatzer and Miranda

Back 29

Defendant was in jail and asks for a lawyer. He gets out of jail. 14 days later he talks to police w/o a a lawyer. Does Miranda apply? No, there was a break in custody and 14 days passed.

Front 30

Extraterritorial application of 5th Amendment

Back 30

If defendant is outside the US but may be prosecuted upon his return to the US, the defendant still has Miranda rights and 5th Amendment DOES apply

Front 31

Interrogation limits: leniency and misleading the suspect

Back 31

Can promise lenience, but can be misleading. Misleading the suspect and then resulting in confession "your friend has just confessed" this is Ok as long as Miranda rights have been read and 5th Amendment not violated

Front 32

Is Miranda rights crime specific? What about 5th Amendment?

Back 32

No, Miranda is not crime specific, nor are 5th Amendment warnings. 6th Amendment right to counsel IS crime specific.

Front 33

"Police are questioning a suspect about a rape and he confesses to a murder" US v. Patane

Back 33

After Miranda, defendant admits to police that he had a gun and fired it. However, he was being charged with restraining order violation. SC ruled that his confession was separate from the crime he was charged with. As long as the suspect is not under duress, the confession is admissable.

Front 34

Does it matter who is doing interrogating vis a vis 5th Amendment?

Back 34

Yes, Miranda = Custody and Interrogation by LEO. LEO can also include a police moonlighting as a private security guard.

Front 35

Miranda Rights Exception: New York v. Quarles

Back 35

If public safety is at issue, Miranda rights do not need to be read. Quarles accused of being a rapist in the middle of the night, man wearing an empty holster and police ask where gun is. Then they arrest him and he tells them where the gun is.

Front 36

Miranda Rights Exception: Routine booking

Back 36

Can ask name, address, and phone before rights have been read

Front 37

Miranda Rights Exception: Jail house informant

Back 37

If an informant is put in jail by the police, and the accused starts talking, accused can't claim 5th Amendment. No appearance of authority and they are not under duress.

Front 38

6th Amendment right to counsel

Back 38

6th Amendment is crime specific (unlike 5th Amendment) and applies when someone is FORMALLY CHARGED and there is DELIBERATE ELICITATION

Front 39

6th Amendment: Gideon. v. Wainwright:

Back 39

LANDMARK CASE. Gideon was denied a lawyer and convicted. SC allowed a retrial w/lawyer and he was convicted.

Front 40

When does 6th Amendment right to counsel apply?

Back 40

-Formally charged AND indicted, arraignment. In other words, first appearance: grand jury or trial.
-Deliberate elicitation: "intentional creation of circumstances by government agents that are likely to produce incriminating information from the defendant"
-Brewer v. Williams: inevitable discovery

Front 41

FRCrim Procedure 16: Discovery

Back 41

defendant is entitled to discovery: includes all police reports, witnesses, and photos of the crime scene. Anything that the prosecutor has in their file must be given to the defendant's attorney

Front 42

Prevention of trial by surprise

Back 42

Discovery prevents this, allows defense to prepare before a trial.

Front 43

What does defense have access to?

Back 43

-Physical evidence, witness lists, and EXCULPATORY information (as established by Brady v. Maryland)

Front 44

EXCULPATORY INFO: Brady v. Maryland

Back 44

-Information that would indicate defendant is not guilty of then crime accused. We must share this information with AUSA.

Front 45

US v. Giglio: Candor

Back 45

US v. Giglio established that if a government witness has something in their background that affects candor within the last 10 years, info must be shared with defendant

Front 46

"Jencks" and documents

Back 46

Jencks established that all versions of documents (rough and final) must be turned over and can't be purged in anticipation of a trial