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101 Cards in this Set

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Three common forms or explicit plea bargains are:
1. Pleading guilty to a charge less serious than the original charge.

2. Pleading guilty to the original charge in exchange for promises concerning sentence to be imposed, such as some leniency or a specific sentence the prosecutor has promised to make to the court.

3. Pleading guilty to the original charge in exchange for the prosecutor's promise to drop or not file other charges.
What are some of the reasons plea bargaining is as big as it is?
1. Crowded court dockets.

2. Increase in professionalism among police and prosecutors so there are fewer disputes over guilt or innocence (stronger cases induce more pleas).

3. The rise of professionalism among defense attorneys and the broadening of the rght to counsel.

4. Changes in jury trial processfrom simple to time consuming, cumbersome and expensive.

5. Constitutional due proces revolution.

6. The desire of prosecutors and judges to reach a sentence that suits the needs of the individual offender.
Name some things that would happen if we did not have plea bargaining?
Many cases would be dropped, it would be much more expensive to take more cases to trial, defendant would have to go through stress and embarassment of trial.
Can a prosecutor threaten a defendant to take a plea?
No! But he/she can encourage.
True or False: Judges are permitted to particpate in plea bargaining.
False! Judges shall not participate in any such plea bargaining discussions.
True or False: a prosecutor must extend a plea bargain.
False - a prosecutor is never required to extend a plea bargain offer.
True or False: a judge is required to sentence per a plea agreement.
False - a jusdge is free to refuse to give any consideration to the agreement which has been reached by the parties.

However, when a judge does this, he must make it known that he rejects the plea agreement which gives the defendant an opportunity to withdraw his guilty plea.
Name the six fundamental steps that must be followed by a judge taking a plea agreement.
1. Voluntariness/Competency
2. Understanding Charge
3. Understanding possible consequences of guilty plea.
4. Understanding constitutional rights being waived by pleading guilty and alternatives.
5. Factual basis for guilty plea (defendant says what it is that made them guilty)
6. Plea agreement entered and in writing and defendant has signed.
Name several reasons for challenges for good cause.
-Person was a member of the grand jury that found the indictment.
-The person has formed an opinion as to guilt or innocence.
-State is seeking death sentence and that doesn't jive with the person's opinions.
-The person is related within the fifth degree of the defendant.
-The person served as a juror previously where the def was a party (criminal or civil).
-The person is also subpoenaed as a witness.
-Person is mentally incompetent
-Person is an alien.
-Person is biased or prejudiced.
-Person has personal interest in trial.
Which crimes require a 12 person jury?
Class A, B, or C. All others are 6.
How many jurors can a defendant and prosecutor each challenge peremptorily for murder with death penalty?
20
How many jurors can a defendant and prosecutor each challenge peremptorily for Class A, B, or C felonies?
10
How many jurors can a defendant and prosecutor each challenge peremptorily for non Class A, or B, or C felonies?
5
True or False: if a judge does not like part of the plea agreement he can use some of it and not all of it.
False - a judge must either accept all of it, or reject all of it. Its a package deal.
Name the 3 basic fundamentals behind the right to a speedy trial:
1. Prevent undue oppressive incarceration prior to trial.
2. Minimize anxiety and concern accompanying public accusation.
3. Limits the possibility that a long delay will impair the ability to defend yourself (witnesses are long gone, evidence is old).
The 6th Amendment gives the right to speedy trial, what are three purposes for this?
1. Safeguard against mistreatment, rude or disrespectful treatment.
2. To make proceedings known to witnesses whom otherwise may not come forward with info.
3. Helps assure truthful testimony by inducing a fear that if your lying, someone is going to know about it.
If you give you your right to public trial that does not mean you get a private trial, why?
Because the first amendment allows others to attend, thus making it public.
What reasons why a judge may order a court proceeding closed?
To protect the identity of minors, persons in the witness protection program, or undercover agents.
What rights is the defendant giving up by taking a guilty plea?
-Right against self incrimination
-Right to trial by jury
-Right to speedy, public trial
-Right to confront witnesses against you
Which type of challenge to a prospective juror is unlimited?
Challenge for cause
Which type of challenge to a prospective juror is limited?
Peremptory
Do you have to give any reason at all for challenging a juror peremptorily?
No
Do alternate jurors contribute to discussion?
No - they remain silent and are flies on the wall but ready to step in if needed.
Name two reasons the 6th Amendment right to trial by jury is important.
1. Safeguard against corrupt or overzealous prosecutors.

2. Safeguard against biased judges.
True or false: a jury has the ability to acquit a defendant even if they look at the facts and say the facts show guilt. But if the jury says the law is unjust, its not right so we aren't going to convict they can say the law is unjust so they aren't going to enforce it.
True
What are some reasons a defendant would want to waive his right to trial by jury?
Really technical defenses like insanity. Or child molestation, the defendant wants the most dispassionate person possible.
What must be done during the prosecutor's case in chief?
Show a prima facie case
What are the two basic forms of communicating information to the jury?
Testimony/witness (eyes and ears)
Tangible (exhibits, physical evidence)
The examination by a party's own witness is called:
Direct
The examination by opposing party's witness is called:
Cross
True or False: As a general rule, an attorney may ask leading questions of a witness he calls to the stand.
FALSE
A party can only ask his own witness _____ questions.
Direct
A party can ask opposing party's witness _____ questions during cross examination.
Leading
A question is _____ if it suggests the desired answer.
Leading
A question that asks "what color was the light?" is an example of what type of question?
Direct
A question that asks "the light was green, wasn't it?" is an example of what type of question?
Leading
To testify, a witness must be _______.
Competent
Who starts closing arguments first?
Prosecutor, but he can save some of his time for after the defendant's closing arguments.
What are some of the things the judge will instruct the jury on in final instructions?
Presumption of innocence
Proof beyond a reasonable doubt
Elements of crime
Elements of defense
How to judge the credibility of witnesses
True or False: Since the 6A and the 14A encompass the very basic right of a defendant in a criminal case to be present in the court at every stage of his trial, a count cannot UNDER ANY CIRCUMSTANCES commence a trial or continue to proceed with a trial in the absence of the defendant.
FALSE. If a defendant is making it impossible to proceed, he may be removed.
True or False: a defendant waives his 5th Amendment privilege against self incrimination applicable to states throughj the 14th Amendment due process clause when the defendant takes the stand and begins to testify.
True
What are three ways a judge can be removed?
1. Challenge for cause by party.
2. Judge recueses himself.
3. Judge lets the parties known and let them decide.
What can a judge do to try and stop the media coverage?
He can't gag order the media but he can the parties, witnesses, police to ban them from speaking to the media.

Can restrict media coverage of the actual proceeding but not out of the courthouse.
What two things must happen first before a defendant can be removed from the trial?
1. Bind and gag them.
2. Hold defendant in contempt.
If a defendant is removed from the courtroom, what must he be provided with?
Closed circuit tv access to court proceeding or view the proceeding through one-way glass.
What are three essential (constitutional) functions of jury selection?
1. To select a fair and impartial jury.
2. A representative fair cross section of the community.
3. A jury of ones peers, no one can be excluded by race, sex, religion, national origine, or gender.
3 functions/reasons for peremptory challenges.
1. Teach litigants an the community that jury is a good method to decide matters because the jury belongs to litigants.
2. Allows secret expression of what we dare not say but know is true. (Physics professors have a hard time weighing things that are not exact)
3. A shield for a challenge for cause (a juror insists they are fair and impartial but you don't think they will be and you don't want to upset him/her)
3 functions of voir dire (to get down to your final jury)
1. To get information from each juror to establish a basis for a challenge for cause.
2. To facilitate the intelligent use of peremptory challenges (by asking questions and learning about each juror)
3. Allows the lawyer to develope a rapport with the jurors and find out if each juror will be open to your defense or the details of the case.
What is the purpose of opening statements (generally not, pros specific)?
To acquaint the jury with some basic facts expected to prove and these statements are not evidence.
Is it optional for the defendant to make an opening statement?
Yes - it is not required for a defendant to make an opening statement.
What is it called if the entire jury is challenged because a class was excluded, like no women in the pool of a case where a woman is the defendant.
Challenge to the Array
Who MUST make an opening statement? Who is it optional for?
Prosecutor (required)
Defendant (optional)
How much "preview" of evidence must the Prosecutor show at opening? (Ie. "the evidence I am about to show you will prove x, y, z.")
Enough evidence that if true, it would convict the defendant.
How can a juror be excused?
If he is over 75
How can a juror be deferred?
If a juror has a commitment they can't get out of they get a one-time pass to defer jury duty up to 12 months and then they are put back into the pool.
What are the three terms used to refer to the narrowed groups of potential jurors?
First there is a pool
then there is a panel
Then a petit selected for voir dire.
How does a party compel tangible evidence to be brought to court?
Subpoena duces tecum
Is it unethical to tell a witness what to say or how to say it?
It is unethical to tell a witness WHAT to say, but not HOW to say it.
Every witness must have a ___________ in order to testify.
A foundation, proof they have personal knowledge.
How does a party lay a foundation for their witness?
By asking if they were present, did they know the person, did they see the event.
What kind of expert does not have personal knowledge but lays a proper foundation in other ways?
Expert Witnesses
How do you lay a foundation for tangible evidence like exhibits?
They are introduced through witnesses by laying a foundation, asking relevant questions like "have you ever seen this gun, when?"
Examination by the party who callst he party is called _____.
Direct
What type of questions cannot be asked on direct exam?
Leading.
Examination by the party that did not call the witness is called what?
Cross examination
What type of questions are asked on cross examination?
Leading.
Cross examination questions are limited to what?
Issues that came up during direct.
What are three ways of impeaching a witness?
1. Show a bad character trail relative to the case like lying.

2. Show they made contradictory statements, perhaps at previous depo or police statement.

3. Any kind of consistency.
What is the object of cross examination?
To verify the correctness of direct examination testimony and to try to impeach or discredit the witness.
What can only be asked during re-direct?
Only questions pertaining to the cross examination.
What is the purpose of re-direct?
To rehabilitate and re-establish the credibility of the witness.
Why would a defendant move for a directed verdict?
If the prosecutor did not establish a prima facie, in otherwords did not prove all of the elements mentioned in opening arguments.
When is a motion for directed verdict made?
When the state rests.
Does a directed verdict have to be on all of the charges or can it be on just one charge?
It can be either one or all.
what is the object of a defendant's case in chief?
To create doubt
What happens if the defendant does not want to testify and the prosecutor calls him/her as a witness?
the judge would declare the trial a mistrial. Damage beyond repair.
if the defendant has decided to testify can he later relenquish his 5th Amendement right against self-incrimination?
No - once the door is open, it can't be shut.
if the judge sustains an objection what does he mean?
Stop that, the objection is correct/upheld.
If a judge overules an objection what does he/she mean?
Your wrong - continue/ignore the objection.
name the 15 steps in a criminal trial?
1. voir dire
2. preliminary instructions on law to jury by court
3. opening statements by prosecutor
4. opening statements by defense (optional)
5. Prosecution case in chief
6. Motion for directed verdict
7. defendant's right to present evidence
8. prosecution rebuttal evidence
9. defendants sur rebuttal evidence
10. Defendants renewal of motion for directed verdict.
11. Court/pros/defense decide on final jury instructions.
12. Closing arguments by pros and defense
13. Jury instructions on law by court to jury
14. Jury deliberations
15. Jury renders verdict
After the defendant has waived his 5th Amendment privilege, if the prosecutor asks questions beyond the scope of the present case, what can the defendant do?
Plea the 5th. The door hasn't been opened on issues pertaining to another case.
True or False: A prosecutor cannot comment on the defendant not taking the stand unless the defense talked about why he didn't take the stand.
True. the pros must not mention that the def didn't take the stand or make any speculation as to why he or she did not take the stand.
What is the object of cross examination?
To verify the correctness of direct examination testimony and to try to impeach or discredit the witness.
What can only be asked during re-direct?
Only questions pertaining to the cross examination.
What is the purpose of re-direct?
To rehabilitate and re-establish the credibility of the witness.
Why would a defendant move for a directed verdict?
If the prosecutor did not establish a prima facie, in otherwords did not prove all of the elements mentioned in opening arguments.
When is a motion for directed verdict made?
When the state rests.
A non-defendant witness can only plea the 5th if the questions would _____.
Self-incriminate them.
What are the two type of trial decision categories?
Strategic/tactical
Personal
What are examples of a strategic/tactical decision?
What motions to file, witnesses and what questions to ask, jury selection and striking.
What are examples of personal questions?
Should the defendant plead guilty or go to trial, should the defendant waive their right to a jury trial, should they take the stand.
If a defendant and his lawyer do not agree on strategic/tactical questions, who overrules?
The lawyer
If the defendant and his lawyer do not agree on personal decisions on trial, who overrules?
The defendant
What is the purpose of the prosecutor's rebuttal?
Put evidence on that directly refutes or rebuts some evidence that was introduced during the defendant's case.

It must be evidence that was not already shown previously.
What is the purpose of the defendant's sur-rebuttal?
To refuse/rebut the prosecutor's rebuttal.
True or False:
Proof beyond a reasonable doubt must be based on facts or inferences, not just a hunch.
True. It can't just be a "hunch" of doubt.
True or False:
Closing Arguments are optional for defendants
True
The pros uses closing arguments to show what?
That the evidence he provided proves the defendant's guilt.
The def uses closing arguments to show what?
That the evidence provided does not prove the defendant's guilt or creates doubt.
What can both pros and def NOT do during closing argument?
They cannot mistate evidence.

They cannot express a personal belief or opinion ("in my opinion, the defendant lied.")

Can't say anything that would paint the defendant to look guilty "lets put that monster who did this away, this is your opportunity."
What are two forms of evidence?
Tangible (physical exhibits) and Testimony (eyes and ears)