5th, 6th, 8th Amendment Flashcards
What is the exclusionary rule?
Rule that prohibits the introduction of evidence obtained in violation of D’s constitutional rights in a criminal trial
Fruit of the poisonous tree doctrine
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
Poisonous tree doctrine exceptions
- 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
Ways to break the chain (poisonous doctrine exceptions)
- Independent source- govt. had an independent source for obtaining the evidence, i.e., independent from the original illegality
- Inevitable discovery- govt. would have discovered illegally derived evidence even without illegal conduct
-
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)
How do you remedy an exclusionary rule violation on appeal?
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
When the exclusionary rule doesn’t apply?
Exclusionary rule does not apply to:
- When the evidence is seized under good faith believes that the warrant was valid
- Grand jury proceedings (D could not refuse to answer questions unlawfully obtained)
- Civil proceedings (other sovereign exception)
- Evidence seized because of a violation of state law or internal agency rules. The exclusion only works when violation fed law.
- Violations of the ‘‘knock and announce rule” in executing search warrants
- 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.
- When prosecution passes the Harmless error test
Exclusionary rule scope regarding law that was violated on seizure
The exclusionary rule applies only to searches in violation of a fed. statute or the U.S. Constitution
Exclusionary rule and impeachment rule
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)
Govt. good-faith defenses to the exclusionary rule
Illegally obtained evidence will not be excluded if the govt. demonstrates that it relied in good faith on either:
- A reasonably reliance upon but defective search warrant, or
- A judicial opinion or statute that was later changed or declared invalid
5th Amendment privilege against self-incrimination, applies to crim and civ?
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
When can the privilege against self-incrimination be invoked?
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
Exceptions to privilege against self-incrimination
Exceptions – privilege does not apply if:
- Grant of immunity- prosecution can grant immunity for self-incriminating testimony. State inmunity covers Federal inmunity
- Incrimination is not possible - e.g., the statute of limitations has run
- Extinguished by waiver-D waives the privilege
Miranda rule and effect
Those in custody must be informed of Miranda rights prior to interrogation; otherwise subsequent statements are inadmissible
When is Miranda required?
Miranda only applies when accused is in custody and interrogated
What is custody for Miranda effect?
- Custody - accused is not free to leave
What is an interrogation for Miranda effects?
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)
What is the CONTENT of a Miranda Warning
You have:
- A right to remain silent;
- Anything said can be used against him;
- He has a right to the presence of an attorney; and
- One will be appointed if he cannot afford one
The compliance of this warning can be substantial not literal.
If you fail to give Miranda warnings, what amendment are you affecting?
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.
How to invoke Miranda Right?
An accused may terminate an interrogation at any time by invoking his right to remain silent or by requesting counsel
Effects of invoking right to silence
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
Effects of invoking 5th Amendment right to counsel
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
Requirements for waiving for Miranda Right
waiver must be:
- Knowing;
- Voluntary-must be a clear verbal waiver; and
- Intelligently made
- Burden is on prosecution to prove waiver was valid
Requirements of a confession under 14th Amendment
14th Amend. & confessions - to be admissible, the 14th 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
Double jeopardy, what it is?
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
Same offense requirement for D Jeopardy
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
Exception to same offense rule
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
When jeopardy attaches?
When jeopardy attaches:
- Jury trial -once jury is impanelled and sworn in
- Bench trial -once first witness is sworn in
Double Jeopardy: Exception permitting retrial
Once jeopardy has attached, retrial is still allowed if either:
- Hung jury
-
Mistrial due to manifest necessity
- Occurs when D’s original trial is aborted for some reason (e.g., Dis too ill to continue)
-
Retrial after a successful appeal by D
- D can be retried unless the basis for reversal was insufficient evidence to support a guilty verdict
- D breaches a plea bargain agreement
-
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
6th Amendment right to counsel (Application)
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
Scope 6th Amendment right to counsel
-
Scope - right is offense-specific
- Police can question D about any other crime without violating D’s 6th Amend. rights
5th vs 6th Amend, right to counsel
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
Right to counsel on pretrial
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
Due process considerations on pretrial
Due process considerations -D can attack pretrial identification procedures as a denial of due process rights if:
- Identification is unnecessarily suggestive; and
- 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
Remedy for violation (pretrial)
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
Grand Jury, general concept
Grand juries are required in fed. court under the 5th 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
Characteristic of a Grand Jury Proceedings
- 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 5th Amend.
- Exclusionary rule does not apply
- I.e., an indictment can be based on evidence that would be inadmissible at trial
What is a pretrial (preliminary) hearing and when is required
Pretrial (preliminary) hearing -may be required to determine if there is probable cause to detain the suspect
-
Required if:
- 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)
- 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
Bail considerations
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)
When can Bail be denied?
For denial of bail, govt. must show either:
- D poses a flight risk, or
- D poses a danger to the community
Plea Bargain, constitutional?
A D may enter a plea bargain but doing so waives his 6th Amend. right to a jury trial
Requirements for a valid plea bargain
Requirements for valid plea bargain - judge must:
- Determine plea is voluntary and intelligently made; and
- Ensure that D understands:
- Nature of the charge and its critical elements
- Maximum authorized penalty and any mandatory sentence
- That D has a right to plead not guilty
- That D is waiving his right to a jury trial
When can an appelate court disturb a valid plea?
Appellate courts will not disturb valid pleas unless:
- Plea was made involuntarily (e.g.., due to a misunderstanding),
- The court that took the plea lacked jurisdiction,
- D had ineffective assistance of counsel, or
- The prosecutor failed to honor the plea
What is the contract theory of plea bargaining?
- 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
Right to a speedy trial consideration
The 6th 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
When the right of speedy trial is violated?
Violations - determined by the totality of the circumstances
Courts look at the following factors:
- Length of delay
- Reason for delay -did D contribute to the delay? (the delay by a public defender is not the state fault)
- Whether D asserted his right to a speedy triaI
- Whether the delay has prejudiced D
Right to a jury trial considerations
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
Jury size (criminal law) and unanimity
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
What are the juror composition requirements?
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
Right to an impartial jury
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
Perentory challenges (criminal jury)
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)
Right to confront witness, which amendment?
6th Amend. gives D the right to confront adverse witnesses
What is the right to confront a witness?
D has a right to have adverse witnesses testify in- person and subject to cross examination
- In-person testimony not required if:
- Exclusion is necessary for public policy; and
- Reliability of the testimony is otherwise assured
- D can be removed from court for disruptive behavior
Co-defendant confessions and right to confront witnesses
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:
- Confessing co-D testifies subject to cross examination,
- Ds have separate trials,
- Confession is redacted so that all portions referring to the co-Dare eliminated, or
- Co-D’s confession is used to rebut D’s claim that his confession was obtained coercively
Hearsay and right to confront witnesses
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
8th Amendment and Death Penalty
The 8th Amend. prohibits cruel and unusual punishment, which bars punishment that is grossly disproportionate to the offense
- Death penalty is permitted under 8th Amend. prohibition on cruel and unusual punishment
- Grossly disproportionate -e.g., life sentence for minor vandalism
Death Penalty Requirements
Death penalty may only be used at sentencing if the victim dies as a result of D’s crime
- Requirements:
- Statute allowing death penalty must not be unconstitutionally vague
- Jury must be allowed to consider mitigating circumstances (E.g., D’s abusive childhood, mental impairment, etc.)
- There must be at least one ‘‘aggravating circumstance’’ (e.g., prior convictions) supporting the sentence
Death Penalty (Limitation)
Limitations - death penalty cannot be imposed if either:
- D was under 18 years old when the crime was committed,
- D is mentally disabled,
- D is insane at the time of execution, or
- 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
14th Amendment and Burden of Proof
The 14th Amend. Due Process Clause requires that the govt. prove guilt beyond a reasonable doubt in all criminal cases
Reasonable doubt consideration
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
Differences between the 5th and the 6th Amendment right to counsel
- 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
How do you waive your privilege against self-incrimination (as a W and as a D)
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.
Things that you don’t have as a W before a grand jury
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
Which procedures require 6th amendment right to counsel and which not?
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
What is the remedy for a speedy trial
Remedy for violation = dismissal of the case with prejudice
