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144 Cards in this Set
- Front
- Back
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To issue an arrest warrant:
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enough information + under oath + can make indep decision + probable cause + crime committed by person
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How to show the information for probable cause:
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affidavit OR oral testimony in front of the official OR oral testimony by law enfocement through video conferencing
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Different standards for analyzing search and seizure btw NC and Fed?
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Not normally - but may use different language
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Good Faith Exception to exclusionary rule
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established by statute and not judicially
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With Miranda warning
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defendant's right to remain silent is protected by US const and NC Const
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Without Miranda warning
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Defendant's right to remain silent is protected by US and NC constitution
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Violation of 14th Amend of US Const when
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impeach defendant on cross by asking about silence
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what happens to 5th rights when defendant decides to testify on own behalf
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gives way to the state's right to determine, using impeachment, if the prior silence goes against trial testimony
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Test for state's right to determine if silence is inconsistent with trial testimony...
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would it have been natural to assert the same defense that was used at trial
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when can prosecutor or defendant ask for issuance of nontestimonial identification order
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if the possible imprisonment = over 1 year
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If want to get order for nontestimonial identification must show:
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probable cause that there is an offense committed where imprisonment > 1 year + reasonable grounds that person committed the offense + the information will be material in determining if the person actually created the offense
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when do you have to serve the suspect the nontestimonial identification order
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w/in 72 hours of when the procdure is scheduled unless it looks like the evidence will be destroyed
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what happens to the results of the nontestimonial identification procedure
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the suspect has to be given the results and he has to give them back to court w/in 90 days
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what happens if no probable cause is shown in the nontestimonial identification procedure
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have to destroy the report
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How involved does the person named in the non testimonial identification order have to be
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they may be compelled to participate but unless he is arrested, he can't be held more than 6 hours
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Suppose the suspect named in the nontestimonial identication order does not have an attorney
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Anything the say during the procedure can't be used in a criminal proceeding
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When can the prosecutor use the non testimonial identification procedure?
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as long as the defendant isn't in custody
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when can the defendant use the non testimonial identification procedure
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when examining or inspecting a potential witness or anyone else
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What are some examples of what can be requested with a non testimonial evidence identification order
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finger, palm and footprints
measurements blood, urine, saliva, hair samples pictures linueps where the defendant's presence is required |
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what does an officer have to do once they arrest a suspect
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take them to the magistrate , especially if they don't have a warrant
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when does a defendant have to appear in District Court
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within 96 hours of the time they have been arrested unless out on bail
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how is an initial appearance in a non capital case handled
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by audio / video transmission where they can see each other
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who do the discovery rules in superior court crim cases apply to
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felonies and misdemeanors
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do you need discovery before criminal actions
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no because they are tried before judges normally in a pretty quick time line
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what does the state have to disclose if requested by defendant's motion?
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whatever photos or written/recorded statements by the def they have + statement def made to someone in the state's custody unless not excuplatory and informant won't testify for prosecution
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what does prosecution have to present when defendant requests by motion? - pt 2
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whatever a codefendant has that they are planning to use at trial + copy of def crim record + pictures or documents which the state has which will help the defense prepare and the state plans to use @ trial and was obtained from def
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What does prosecution have to disclosure upon motion by defendant - pt 3
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information from physical or mental exams, tests that are connected to case + any physical evidence the state plans to use
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does the prosecution have to let the defense get copies of statements or reports by state's witnesses?
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not until they have testified under direct @ the trial
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what does the defense have to share with the state if the defense has requested information?
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if defense asks for books and papers then the state can look at the books and papers the defense is planning to use + if defense wants to look at physical evidence or reports of exams - so does the state + if defense wants to look at physical evidence, state does to if defense is going to use it
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what does the prosecution not have to show when defense asks for it during discovery
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work product or investigative file of prosecution or law enforcement
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does the state have to provide a witness list for defense counsel
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no, not at any stage; but if going to give someone a deal to be state's witness, have to disclose
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does the defense have to give the state everything they want when they seek discovery
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no, reports and internal defense documents, defendant's statement and witness statements don't have to be shared
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what should the party who seeks discovery do before they file a motion
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they should make a written request that the other party comply with the request
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when can you file a discovery motion
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if it has been 7 days since you asked for voluntary discovery or you receive a negative response from the other party
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After you have shared the information for the discovery request, what happens if you get something new that is related
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you have to disclose any additional information that is the same as the type originally requested
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What situations can cause teh court to determine that discovery or inspection should not happen or be restricted
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if there is a good cause such as risk of physical harm, intimidation or brivery
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Is it possible to have in camera inspection
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yes, the party can submit an affidavit that explains why there should be in camera inspection
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what happens to materials that are a part of the in camera inspection
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they are sealed and preserved, only available to the appellate court if an appea follows
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what has to be included in a court order for discovery
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time, place and manner as well as terms and conditions
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what happens if someone does not comply with a discovery request
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the court can find them in contempt OR they can be ordered to permit discovery OR can grant a recess or continuance OR can keep the party from introducing the evidence they don't want to disclose OR declare mistrial OR dismiss w or w/out prejudice OR anything else that is appropriate
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What's the purpose of discovery
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to make sure the defendant isn't surprised by what comes up at trial
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what happens if a crime is committed partly in NC and partly in another state
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can be tried in NC as long as not jeopardy in the other state
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which state can exercise jurisdiction on an alleged perp
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the one where an essential element of the offense occurred
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what happens if an offense took place in more than one county in NC
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jurisdiction is proper in any county where some element of the crime took place
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what happens to jurisdiction if a group of people have participated in a conspiracy
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NC has jurisdiction as long as any of the people committed an act to further the conspiracy in NC, even if the conspiracy formed outside of the state
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Conspiracy General rule
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no overt act needed
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what happens if all the participants in a conspiracy aren't in the state's territorial limits
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state can still try them all
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Right to jury trial in criminal cases in NC
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defendant has right to be tried in front of a 12 member jury and the verdict must be unanimous
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Who handles trials for petty misdemeanors- criminal
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District courts have exclusive juris of those crim acts below felony
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District court involvement in criminal actions?
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can have preliminary examinations, prob cause hearings and handle a felony that is reduced to a misdemeanor
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Suppose there is a trial for a misdemeanor?
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District Court has judge who is finder of fact
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What happens if the defendant in a misdemeanor wants to appeal a decision by a judge
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has right to appeal for trial de novo in Superior court
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What happens if a crim defendant pleads not guilty in a Superior Court
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the case is tried in front of a jury
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Can you have a jury trial in District court
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No, but the appeal can be de novo to the Superior Court where a not guilty plea will automatically get you a jury trial
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What constitutional right is violated when the defendant has to first go to a non jury trial in District Court
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None because the defendant has the opportunity to appeal de novo to Superior court and get a jury trial
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How long do you have to appeal a district court conviction
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10 days or it will be final
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What happens if you are convicted in District Court based on a guilty plea
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You can't appeal to the Superior court for a trial de novo
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In what types of criminal actions does Superior Court have exclusive orig jurisdiction
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any not specifically assigned to District Ct + misdemeanors which are lesser included offenses of indicted felonies OR which can be consolidated w/ felony OR subject of plea bargain instead of felony OR subject to trial de novo in Superior Ct
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How does the Superior Court get jurisdiction in felony cases
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when an indictment is returned by a propertly constituted grand jury
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What authority does the grand jury have
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they can indict for criminal actions that happen in the county where the grand jury resides
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what is an investigative grand jury
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they are impaneled for select drug cases
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what kind of indictment requests can grand juries handle
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those that are requests from the local prosecutor
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can the grand jury conduct its own investigation
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no, they can only go based on the requests of the local prosecutor
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if you have a problem with the jurisdiction of the grand jury, what do you do
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you can raise a challenge to the jurisdiction before or at the Superior Court arraignment
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How do you waive a challenge to the grand jury jurisdiction
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if you don't raise your challenge in timely manner, you will waive that right
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Defendant's right to indictment
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can waive in non capital case as long as have an attorney
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what is the result if you waive the right to indictment
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prosecution proceeds under bill of information
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requirements of a conviction
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unanimous verdict by the 12 panel jury
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What information does a police officer have to provide when lawfully arresting someone
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that they have the right to speak to an attorney and family w/out unnecessary delay
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what information does a police officer have to provide when arresting a minor
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the right to speak to an attorney and family w/out unnecessary delay and has to inform the parent of the arrest and charge
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What does a magistrate have to find out once an arrested suspect is presented to them
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If they are represented by an attorney
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If a magistrate discovers that an arrested person before them doesn't have an attorney, what must they do
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inform the arrested person that they have the right to an attorney and to communicate with family or friends and that they can get a court appointed attorney. have to give the suspect reasonable time to contact people
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what happens if you violate the right to counsel
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may be seen as reversible error because you kept the defendant from being able to properly prepare defense
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when can an indigent defendant get a state appointed attorney
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imprisonment or fine of at least $500
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When does the entitlement for a state appointed attorney take place for an indigent defendant
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as soon as possible after the suspect is takend into custody or served with the charge
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How does an indigent defendant waive their right to state appointed counsel
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by written waiver
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What can a judge do if an indigent defendant decides they don't want a court appointed attorney and it's a very serious case
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they can appoint someone on stand by who can step in if the indigent is not able to protect his own interests
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How many court appointed attorneys can the defendant in a capital case have
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they are entited to two and they can represent jointly
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What types of procedures entitle an indigent to court appointed counsel
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writ of habeas corpus OR motion for appropriate relief when convicted of felony, fined $500 or more or sentenced to prison OR hearing for revocation of probation
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what types of procedures entitle an indigent to court appointed counsel - pt 2
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juvenile proceedings which could result in youth put in institution or when possibly will transfer to Superior court as felony OR appeal of right to Appellate OR critical stage of the action including probable cause hearings and sentencing
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How does the Public Defender get information on those who need representation
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list is provided when have those in custody over 48 hours w/out an attorney when there is a public defender office in the county
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How does notification take place in counties where there is no public defender office
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the list is provided to the Clerk of Superior Court
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What is meant by indigence
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when someone doesn't have the ability to get legal representation and pay for it
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what are some of the necessary expenses of representation
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interpreters for deaf or non English speaking defendants, PI, expert witnesses, psychiatrists, medical providers
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How does one get supportive service
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the defendant has to show that there is a specific need and necessity for the supportive service
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How does an indigent choose their court appointed attorney
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They don't get that right
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what happens when someone who had a court appointed attorney pleads guilty or is convicted
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the defendant has to pay the attorney fees to the State
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What attorney selection rights do non indigent persons have
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they can choose whoever they want and if they had a court appointed one, they can dismiss that one for the one they are paying for
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Right of confrontation
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The US and NC const give the right for criminal defendants to confront the people who are accusing them
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How does the right of confrontation work in a non capital case
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it's personal and can be waived
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In a non capital felony trial, what happens if the defendant voluntarily doesn't appear in court and provides no explanation
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He waives his right to confrontation
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How does waiver of right to confrontation happen in a capital case
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It doesn't. You can't waive it in capital felony cases
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Why does NC want to make sure the defendant is present at their capital trial
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protects defendant, and public interest in the preservation of human life ; protects fairness
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what causes a first degree murder case to lose its capital nature
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when the state decides not to seek the death penalty
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If a case loses its capital nature what impact does that have on the defendant
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he doesn't have to be in court at all stages of the trial
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Under the US const. what happens when there is a violation of the defendant's right to be present at the important parts of his trial
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the prosecution has to prove that there was harmless error beyond a reasonable doubt
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Under the state constitution what is the proper standard of reversal when reviewing violation of the defendant's right to be present at the trial
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prosecution has to prove harmless error beyond reasonable doubt
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How do you know that the error is harmless in a capital trial
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defendant and attorney requested absence OR the proceedings took place in open court OR jury was notified in open court that the defendant didn't come at his request OR state witnesses testified in open court OR everything was recorded by the clerk when the defendant wasn't there OR defendant's counsel was there and said would give the info to the defendant
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What determines how to handle people who need to be removed or restrained during court proceedings
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NC Rules of Criminal Procedure
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when can the judge deicde to physically restrain a defendant or witness
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reasonable necessary for
order , prevent escape or ensure everyone is safe |
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What must a judge do who is ordering a witness or defendant restrained
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put a reason why he restrained outside of the jury's presence but in front of the one restrained; let the restrained person raise any objections; AND let the jury know that the restraint shouldn't impact their perception of the evidence or determination of guilt
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Suppose the restrained person has an objection and wants to counter the reasons for restraint
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the judge will need to conduct a hearing to make findings of fact
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when can a judge remove a defendant from the courtroom
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when the behavior is disruptin the trial , after warning that will be removed if disrupts and the court can't continue in an orderly fashion
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Should the jury know about the warning for removal and the removal
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if possible, all should take place outside of the jury's view
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what does a judge have to do if they remove a defendant from the courtroom
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show on record why the defendant was removed + tell the jury not to allow the removal to impact their determination of guilty or how they look at the evidence
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Can a removed defendant return to the courtroom
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if they can be assured of good behavior otherwise, they will be kept informed through their attorney
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when can a judge kick someone else out of the courtroom
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when they are disrupting the trial
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Can a spouse of a criminal defendant be called as a witness for the defendant
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yes, they are a competent witness for the defendant
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Does a criminal defendant have to call their spouse as a witness
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No, it won't be used against them either
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When can a spouse be compelled to be a witness for the state
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bigamy OR assault or threat against spouse OR trespass when spouses living separately OR abandonment or failure to support spouse or children OR criminal offense against child of either spouse
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Who holds the spousal privilege
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the spouse, not the defendant
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what happens when there is a challenge to spousal privilege
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court advises pouse that can't be compelled to testify and then spouse can determine if still want to testify
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Privilege of spousal confidence
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can't be compelled to share confidential information by one to the other when married
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who holds the spousal privilege for confidential communication
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the defendant spouse
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when is uncorroborated testimony of an accomplice enough for a conviction
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when jury is satisfied beyond reasonable doubt
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when can the acts and declarations of parties in a conspiracy be used in trials against the other conspirator
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state establishes prima facie case + statements made or done after conspiracy is formed and before the conspiracy ends
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when can prior or subsequent acts or declarations be admissible in co-conspirators
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when used against the person who committed the act or made the declarations
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Can co-conspirators testify about what one of the others said while furthering the conspiracy
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yes, will be an exception to hearsay rule
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When can you make a motion to dismiss for insufficient evidence to sustain conviction
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close of state's evidence; close of all evidence; after guilty verdict but before judgment entered ; after jury discharged w/out verdict and before end of session
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when can the defendant move to dismiss action or for judgment of nonsuit
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when the state has finished introducing their evidence and rested the case
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What does the court consider when they have a motion for dismissal or nonsuit
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is there enough evidence to support a finding that the offense was committed and the defendant did it
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substantial evidence is....
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relevant evidence a reasoanbel mind might use to support a conclusion
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when ruling on a motion for dismissal or non suit how does the court consider the evidence
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what is most favorable for the state
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what roles do contradictions and discrepancies play in trials
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they don't automatically mean will dismiss, the jury can sort it out
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what test is used when the motion to dismiss deals with the witness' ability to identify the one who committed the crime
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was there enough reasonable possibility of observation to have proper identification
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Can the state appeal a dismissal for insufficent evidence or judgement of nonsuit
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no, double jeopardy would kick in
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what is an ex post facto law
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makes something criminal that was fine before ; makes a crime greater than when it first was committed ; brings a different or greater punishment than when the crime was committed; changes the evidence rules so less or more evidence is needed than when the crime was committed
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What has to be present for a penal law to be ex post facto law
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relates to events that happened before the law enacted AND makes a disadvantage for the one who is affected by it
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what actions does the ex post facto clauses apply to
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legislative not judicial
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what does retroactive application of a decision apply to
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parties/facts of case where new rule announced; where the factual event, trial and appeal are over but there is a collateral attack ; where cases are on appeal when the announcement is made; cases waiting to go to trial ; cases in the future which come from the earlier occurrence
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How does due process impact the retroactive or retrospective application of judicial decisions
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it requires that there be fundamental fairness
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Is it possible to get due process relief from the NC const when the US Const doesn't provide it
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Yes
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Due process analysis from the state constitution...
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deals with the degree and reasonableness of the state action vs. the public good that comes from it
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How is the decision made on whether or not a criminal defendant gets a new trial
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if the error is prejudicial or harmless
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when do you know that an error is prejudicial
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when there would have been a different result if the error wasn't committed
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How do you know an error is harmless
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the error had no impact on the outcome of the trial
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If a criminal defendant's rights under the US constitution are violated is it prejudicial or harmless
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assumed to be prejudicial so will get a new trial unless the state can prove beyond a reasonable doubt that it was harmless
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If a criminal defendan't rights under something other than the US Const are violated are they prejudicial or harmless
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the defendant has the burden of showin gthat was prejudiced otherwise seen as harmless
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What happens if the criminal defendant doesn't object at trial
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plain error rule is applied
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Errors reversible per se
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an exception to the general rule that trial error is reversible only if harmful or prejudicial
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If the error exists as a matter of law or as reversible per se ...
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prejudice will exist
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an error is reversible per se when...
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violates established court rules or procedure
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when can the state appeal from the superior court to the appellate division
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criminal charges have been dismissed OR motion for a new trial because of newly discovered evidence but only on questions of law OR trial court allowed motion to suppress
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Why can the state not appeal dismissal due to insufficiency of evidence
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because dismissal on merits and involves determination of guilt or innocence
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