5th, 6th, 8th Amendment

Question 1

What is the exclusionary rule?

Answer 1

Rule that prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial

Question 2

Fruit of the poisonous tree doctrine

Answer 2

Fruit of the poisonous tree doctrine - evidence derived or obtained from illegal govt. conduct is excludable against D

Arises when illegal police action leads to evidence

Question 3

Poisonous tree doctrine exceptions

Answer 3

• illegally obtained evidence is admissible if govt. can ‘‘break the chain’’ between the illegal govt. conduct and the seized evidence;
• common ways to break the chain:
  
  • Independent source
  • inevitable discovery
  • attenuation

Question 4

Ways to break the chain (poisonous doctrine exceptions)

Answer 4

1. Independent source- govt. had an independent source for obtaining the evidence, i.e., independent from the original illegality
2. Inevitable discovery- govt. would have discovered illegally derived evidence even without illegal conduct
3. Attenuation- where evidence challenged is too remote and attenuated from unlawful search or seizure
   
   • >> Includes intervening acts of free will by D (e.g., after initial illegality, D consciously leads police to the evidence)

Question 5

How do you remedy an exclusionary rule violation on appeal?

Answer 5

Remedy for exclusionary rule violation - harmless error review on appeal

• For admission of illegally seized evidence to be upheld on appeal, govt. must show that it was harmless beyond a reasonable doubt

Question 6

When the exclusionary rule doesn’t apply?

Answer 6

Exclusionary rule does not apply to:

1. When the evidence is seized under good faith believes that the warrant was valid
2. Grand jury proceedings (D could not refuse to answer questions unlawfully obtained)
3. Civil proceedings (other sovereign exception)
4. Evidence seized because of a violation of state law or internal agency rules. The exclusion only works when violation fed law.
5. Violations of the ‘‘knock and announce rule” in executing search warrants
6. Impeachment purposes. Statements obtained a result of Miranda violations can be used to impeach a witness, or evidence seized without a warrant may be used for impeachment only.
7. When prosecution passes the Harmless error test

Question 7

Exclusionary rule scope regarding law that was violated on seizure

Answer 7

The exclusionary rule applies only to searches in violation of a fed. statute or the U.S. Constitution

Question 8

Exclusionary rule and impeachment rule

Answer 8

Excluded evidence and impeachment- confessions resulting from Miranda violations or illegally obtained evidence may be used to impeach D’s testimony at trial (but only D’s testimony)

Question 9

Govt. good-faith defenses to the exclusionary rule

Answer 9

Illegally obtained evidence will not be excluded if the govt. demonstrates that it relied in good faith on either:

1. A reasonably reliance upon but defective search warrant, or
2. A judicial opinion or statute that was later changed or declared invalid

Question 10

5th Amendment privilege against self-incrimination, applies to crim and civ?

Answer 10

Any person in any proceeding (civil or criminal) may refuse to answer a question if her response might incriminate herself

Note:

• At trial, prosecution cannot comment on D’s silence or failure to testify.
• Penalties for failure to testify are prohibited

Question 11

When can the privilege against self-incrimination be invoked?

Answer 11

Privilege is only for natural persons and is only available for a compelled testimonial or communicative evidence:

• Testimonial = verbal or otherwise communicative evidence
  
  • Lineups and physical evidence are not testimonials.
• Compelled = elicited or induced
  
  • Evidence produced from D’s free will is not compelled (e.g., D’s diary is not compelled, public records, notes)
  • Lie detector tests, custodial interrogations, etc. are compelled and 5th Amend. privilege will apply

Question 12

Exceptions to privilege against self-incrimination

Answer 12

Exceptions – privilege does not apply if:

1. Grant of immunity- prosecution can grant immunity for self-incriminating testimony. State inmunity covers Federal inmunity
2. Incrimination is not possible - e.g., the statute of limitations has run
3. Extinguished by waiver-D waives the privilege

Question 13

Miranda rule and effect

Answer 13

Those in custody must be informed of Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible

Question 14

When is Miranda required?

Answer 14

Miranda only applies when accused is in custody and interrogated

Question 15

What is custody for Miranda effect?

Answer 15

• Custody - accused is not free to leave

Question 16

What is an interrogation for Miranda effects?

Answer 16

Interrogation - statements by police likely to elicit incriminating responses

• Unsolicited statements are not protected
• Note - routine questioning (e.g., during booking or a probation interview) is not considered interrogation
• Public safety exception - police may interrogate suspects without giving Miranda warnings if necessary for public safety (e.g., D has info about a bomb that could go off in public)

Question 17

What is the CONTENT of a Miranda Warning

Answer 17

You have:

1. A right to remain silent;
2. Anything said can be used against him;
3. He has a right to the presence of an attorney; and
4. One will be appointed if he cannot afford one

The compliance of this warning can be substantial not literal.

Question 18

If you fail to give Miranda warnings, what amendment are you affecting?

Answer 18

5th Amendment, not 6th Amendment

5th: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
6th: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Question 19

How to invoke Miranda Right?

Answer 19

An accused may terminate an interrogation at any time by invoking his right to remain silent or by requesting counsel

Question 20

Effects of invoking right to silence

Answer 20

Invoking right to silence -police must cease all questions

• Only the accused can re-initiate dialogue
• Police may resume questions after a significant period concerning unrelated crimes, but D must be re-warned of Miranda rights

Question 21

Effects of invoking 5th Amendment right to counsel

Answer 21

Once accused requests counsel unambiguously, police must cease all questions on any topic

• Note - different than 6th Amend. right to counsel, which is offense-specific and only attaches once charges are filed
• If accused initiates communication, interrogation is allowed

Question 22

Requirements for waiving for Miranda Right

Answer 22

waiver must be:

1. Knowing;
2. Voluntary-must be a clear verbal waiver; and
3. Intelligently made

• Burden is on prosecution to prove waiver was valid

Question 23

Requirements of a confession under 14th Amendment

Answer 23

14^th Amend. & confessions - to be admissible, the 14^th Amend. Due Process Clause requires that confessions be voluntary

• Voluntariness is assessed based on totality of circumstances, including suspect’s age, mental/ physical condition, education, and the duration, manner, and setting of the interrogation

Question 24

Double jeopardy, what it is?

Answer 24

A D cannot be retried for the same offense once jeopardy has attached

• Arises when a D charged with one crime is charged with another crime based on the same offense

Question 25

Same offense requirement for D Jeopardy

Answer 25

Same offense - offenses are different if conviction for one offense requires proof of an element not included in the other offense

Lesser included offense - once jeopardy attaches for the greater offense, D cannot be charged for a lesser-included defense

Examples:

• Same offense - e.g., first offense requires proof of A, B, & C; second offense requires proof of A & B; second offense is barred as a lesser-included offense
• Different offense - e.g., first offense requires proof of A & B; second offense requires proof of A, C, & D

Question 26

Exception to same offense rule

Answer 26

Exceptions:

• >> New evidence for greater offense becomes available
• >> D can be tried for battery and subsequently tried for homicide if the victim later dies from the battery

Question 27

When jeopardy attaches?

Answer 27

When jeopardy attaches:

• Jury trial -once jury is impanelled and sworn in
• Bench trial -once first witness is sworn in

Question 28

Double Jeopardy: Exception permitting retrial

Answer 28

Once jeopardy has attached, retrial is still allowed if either:

1. Hung jury
2. Mistrial due to manifest necessity
   
   • Occurs when D’s original trial is aborted for some reason (e.g., Dis too ill to continue)
3. Retrial after a successful appeal by D
   
   • D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict
4. D breaches a plea bargain agreement
5. Separate sovereigns
   
   • D can be tried for the same crime in different states
   • D can be tried for the same crime in fed. and state court

Question 29

6th Amendment right to counsel (Application)

Answer 29

Once 6th Amend. right to counsel attaches, police may not elicit incriminating statements outside the presence of D’s counsel

• Application - right attaches once charges have been filed
  
  • Applies to all subsequent stages of judicial proceedings

Question 30

Scope 6th Amendment right to counsel

Answer 30

• Scope - right is offense-specific
  
  • Police can question D about any other crime without violating D’s 6^th Amend. rights

Question 31

5th vs 6th Amend, right to counsel

Answer 31

5th Amend. right to counsel:

• Not automatic - accused must invoke the right by unambiguously requesting presence of counsel
  
  • Applies to any custodial interrogation
• Not offense-specific - once invoked, police must stop questioning on all subjects

6th Amend. right to counsel

• Automatic - attaches once charges have been filed and a t all subsequent stages
• Offense-specific - Police can question D about any other crimes

Question 32

Right to counsel on pretrial

Answer 32

Right to counsel -a suspect has a right to counsel at any post-charge, in-person lineup or showup

• Does not apply to non-live identification procedures (e.g., photographic lineups, fingerprinting)
• Lineup - witness is shown several possible suspects
• Showup - witness is asked to identify a single suspect

Question 33

Due process considerations on pretrial

Answer 33

Due process considerations -D can attack pretrial identification procedures as a denial of due process rights if:

1. Identification is unnecessarily suggestive; and
2. There is a substantial likelihood of misidentification

• Determined under the totality of the circumstances
• Tough standard; must be extremely suggestive

>> E.g., perpetrator believed to be male and suspect is the only male in lineup; would likely violate due process

Question 34

Remedy for violation (pretrial)

Answer 34

Remedy for violation

• D may move to suppress any subsequent in-trial identifications made by the witness
• Note -remedy for a violation is rare b/c govt. can often prove the identifying witness has an independent source of identification to overcome the exclusionary rule

Question 35

Grand Jury, general concept

Answer 35

Grand juries are required in fed. court under the 5^th Amend. and are used to determine whether there is sufficient probable cause to bring charges against a suspect

• Prosecutors present their cases to the grand jury, which votes to issue an indictment if they find probable cause

Things that you don’t have as a W before a grand jury: Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant

Question 36

Characteristic of a Grand Jury Proceedings

Answer 36

• Secret
• Suspect has no right to confront witnesses or attend proceedings
• Witnesses are not entitled to Miranda warnings
• Witnesses may not challenge a subpoena
  
  • But they may refuse to testify under the 5^th Amend.
• Exclusionary rule does not apply
  
  • I.e., an indictment can be based on evidence that would be inadmissible at trial

Question 37

What is a pretrial (preliminary) hearing and when is required

Answer 37

Pretrial (preliminary) hearing -may be required to determine if there is probable cause to detain the suspect

• Required if:
  
  1. D is incarcerated or released upon posting bail (I.e., does not apply if D is released on sole condition that she appear for trial)
  2. There has not been a grand jury or other judicial determination of probable cause (E.g., not required if arrest was made with warrant)
• Must occur within 48 hours of detention, if required

Question 38

Bail considerations

Answer 38

must be set no higher than necessary to ensure D will appear at trial

• Detention without bail is constitutional but must comply with the Due Process Clause;
• any decision to refuse bail is immediately appealable (Arbitrary denial of bail violates due process)

Question 39

When can Bail be denied?

Answer 39

For denial of bail, govt. must show either:

1. D poses a flight risk, or
2. D poses a danger to the community

Question 40

Plea Bargain, constitutional?

Answer 40

A D may enter a plea bargain but doing so waives his 6th Amend. right to a jury trial

Question 41

Requirements for a valid plea bargain

Answer 41

Requirements for valid plea bargain - judge must:

1. Determine plea is voluntary and intelligently made; and
2. Ensure that D understands:
3. Nature of the charge and its critical elements
4. Maximum authorized penalty and any mandatory sentence
5. That D has a right to plead not guilty
6. That D is waiving his right to a jury trial

Question 42

When can an appelate court disturb a valid plea?

Answer 42

Appellate courts will not disturb valid pleas unless:

1. Plea was made involuntarily (e.g.., due to a misunderstanding),
2. The court that took the plea lacked jurisdiction,
3. D had ineffective assistance of counsel, or
4. The prosecutor failed to honor the plea

Question 43

What is the contract theory of plea bargaining?

Answer 43

• Pleas will be enforced against both parties, but the judge is not required to accept or adhere to the agreement
• The prosecutor can threaten D with a more serious crime than he was initially charged with and even follow through on such threats if D does not accept plea

Question 44

Right to a speedy trial consideration

Answer 44

The 6^th Amend. guarantees D the right to a speedy triaI

• Protects D from unreasonable delay between the time charges are filed and the beginning of trial
• Right attaches once D has been arrested or charged

Question 45

When the right of speedy trial is violated?

Answer 45

Violations - determined by the totality of the circumstances

Courts look at the following factors:

1. Length of delay
2. Reason for delay -did D contribute to the delay? (the delay by a public defender is not the state fault)
3. Whether D asserted his right to a speedy triaI
4. Whether the delay has prejudiced D

Question 46

Right to a jury trial considerations

Answer 46

6th Amend. provides right to a jury trial for all ‘‘serious offenses’’

• Serious offense= one that authorizes a sentence of imprisonment for more than 6 months

Question 47

Jury size (criminal law) and unanimity

Answer 47

Jury size and unanimity - jury must contain at least 6 jurors

• There is no constitutional right to a unanimous verdict
• However, a 6-member jury verdict must be unanimous
• 11-1, 10-2, and 9-3 jury verdicts have been upheld

Question 48

What are the juror composition requirements?

Answer 48

Juror composition requirements - the jury pool (‘‘venire’’) must be a representative cross-section of the community.

However, the actual jury does not have to be representative

Question 49

Right to an impartial jury

Answer 49

D can question potential jurors on possible prejudices if relevant to the case (e.g., racial biases, feelings on the death penalty)
>>D can challenge for cause based on prejudices and has unlimited challenges for cause if relevant to the case

Question 50

Perentory challenges (criminal jury)

Answer 50

Peremptory challenges - parties may exercise peremptory challenges for any reason

• Exception -cannot be used to exclude jurors on account of race or gender (violates equal protection)

Question 51

Right to confront witness, which amendment?

Answer 51

6th Amend. gives D the right to confront adverse witnesses

Question 52

What is the right to confront a witness?

Answer 52

D has a right to have adverse witnesses testify in- person and subject to cross­ examination

• In-person testimony not required if:

1. Exclusion is necessary for public policy; and
2. Reliability of the testimony is otherwise assured

• D can be removed from court for disruptive behavior

Question 53

Co-defendant confessions and right to confront witnesses

Answer 53

Co-defendant confessions -a co-D’s confession implicating D is inadmissible against Data joint jury trial (OK at bench trial)

• Exceptions -confession of a co-Dis admissible if either:

1. Confessing co-D testifies subject to cross­ examination,
2. Ds have separate trials,
3. Confession is redacted so that all portions referring to the co-Dare eliminated, or
4. Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively

Question 54

Hearsay and right to confront witnesses

Answer 54

Hearsay - prior testimonial statements of unavailable witnesses are only admissible if D had the opportunity to cross-examine the declarant when the statement was made

Question 55

8th Amendment and Death Penalty

Answer 55

The 8^th Amend. prohibits cruel and unusual punishment, which bars punishment that is grossly disproportionate to the offense

• Death penalty is permitted under 8^th Amend. prohibition on cruel and unusual punishment
• Grossly disproportionate -e.g., life sentence for minor vandalism

Question 57

Death Penalty Requirements

Answer 57

Death penalty may only be used at sentencing if the victim dies as a result of D’s crime

• Requirements:

1. Statute allowing death penalty must not be unconstitutionally vague
2. Jury must be allowed to consider mitigating circumstances (E.g., D’s abusive childhood, mental impairment, etc.)
3. There must be at least one ‘‘aggravating circumstance’’ (e.g., prior convictions) supporting the sentence

Question 58

Death Penalty (Limitation)

Answer 58

Limitations - death penalty cannot be imposed if either:

1. D was under 18 years old when the crime was committed,
2. D is mentally disabled,
3. D is insane at the time of execution, or
4. The conviction was for felony murder; and either:
   
   • D was not a major participant, or
   • D did not act with depraved indifference to human life

Question 59

14th Amendment and Burden of Proof

Answer 59

The 14^th Amend. Due Process Clause requires that the govt. prove guilt beyond a reasonable doubt in all criminal cases

Question 60

Reasonable doubt consideration

Answer 60

Proving guilt beyond a reasonable doubt - prosecution must prove all elements of every crime charged beyond a reasonable doubt

• Burden is always on the prosecution
  
  • This cannot be changed
  • E.g., a state law shifting burden onto D to prove he is not guilty is unconstitutional
• D has burden of proving any affirmative defenses he raises
• Note - know these requirements; burden of proof questions often appear on the MBE

Question 61

Differences between the 5th and the 6th Amendment right to counsel

Answer 61

• Under the 5th: You can have a counsel present when being interrogated (could happen before the criminal procedure)
  
  • That means that is not offense-specific if no trial has begun
• Under the 6th: You may be assisted by a counsel on all critical stages of a criminal procedure (only happens once the criminal procedure begins)
  
  • SCOTUS: stages are arraignment, post indictment line-ups, post indictment interrogation, plea negotiations and entering a guilty plea
  • This one is offense-specific

Question 62

How do you waive your privilege against self-incrimination (as a W and as a D)

Answer 62

Defendant: when she takes the witness stand, but only to the extent that she is subject to cross-examination. If she takes the stand she is already waiving it.

Witness: Cannot refuse to take the stand, but can individually not answer questions that are incriminating specifically. He waives his privilege when he discloses incriminating information.

Question 63

Things that you don’t have as a W before a grand jury

Answer 63

A W subpoenaed to testify before a grand jury doesn’t have a right to:

Counsel in the courtroom, Miranda warnings, or warnings that she is a potential defendant

Question 64

Which procedures require 6th amendment right to counsel and which not?

Answer 64

Right to counsel applies to all critical stages of criminal prosecution after formal procedures have begun.

Examples of when it applies: 1. Post indictment interrogation and line-ups; 2. Preliminary hearings to determine probable cause to prosecute. 3. Arraignment (charges are informed). 4. Guilty plea and sentencing

Examples when is not applicable: 1. Blood or handwritten taking of samples; 2. precharge lineups. 3. Photo identification

Question 65

What is the remedy for a speedy trial

Answer 65

Remedy for violation = dismissal of the case with prejudice