6th amendment Flashcards
Does the 6th amendment apply to photo arrays?
The Sixth Amendment right to counsel generally does not apply to certain “noncritical stages,” such as photo identifications.
Because the defendant is not present at a photo identification, the Sixth Amendment does not guarantee counsel at such a noncritical stage
When does the 6th amendment apply?
The Sixth Amendment protects an accused’s right to “the assistance of counsel for his defense.” The Sixth Amendment right to counsel applies at all critical stages of a prosecution, after formal proceedings have begun and automatically attaches when formal judicial proceedings have begun, whether that be at a post-arrest initial appearance before a judicial officer, or by way of formal charge, preliminary hearing, indictment, information, or arraignment.
Does the defendant have to invoke the right to counsel?
There is no need to invoke the right to counsel guaranteed by the Sixth Amendment. It automatically attaches upon an indictment or formal charge and applies at all critical stages of a prosecution.
Is not advancing a non frivolous claim of error urged by the defendant grounds for ineffective assistance of counsel?
The first part of the two-part test for establishing ineffective assistance of counsel requires that the representation of a defendant by the defendant’s attorney fall below an objective standard of reasonableness. While an appointed attorney is generally required to pursue a nonfrivolous appeal on behalf of an indigent defendant, in pursuing such an appeal, the attorney is not required to advance every nonfrivolous claim of error urged by the defendant, but may use his professional judgment in determining which claims of error to assert. So long as this judgment is reasonable, the defense attorney’s conduct does not form a basis for ineffective assistance of counsel.
Is defendant is constitutionally entitled to appointed counsel on appeal?
Where the state grants an appeal as of right, an indigent defendant must be provided with an attorney.
Does a witness testifying to a grand jury have 6th amendment rights?
A grand jury witness has no Fifth Amendment right to counsel in the grand jury room. The witness may, however, consult with an attorney outside the grand jury room. Additionally, a witness has no Sixth Amendment right to present witnesses or to introduce evidence at a grand jury proceeding.
Has a witness testifying to a grand jury waived their 5th amendment rights to remain silent and are their rights violated if attorney is not present?
A witness testifying to a grand jury does waive his Fifth Amendment right against self-incrimination by testifying, However, the witness’s Fifth Amendment right to counsel is not violated during the proceeding by not allowing his attorney to be in the room.
Does the 5th amendment prohibit the grand jury from being presented with hearsay evidence?
The Fifth Amendment does not prohibit the use of hearsay evidence by a grand jury in its decision to issue an indictment.
Does a witness testifying need to be warned that they are the subject of a grand jury’s investigation in order to for the witnesses to make a knowing waiver of her right to remain silent?
For an indictment based on perjury, a witness before a grand jury is not entitled to be informed that she is a subject of the grand jury’s investigation. Consequently, the failure to give such a warning does not form a basis for the witness to challenge her decision to testify as lacking sufficient information to be a knowing waiver of her right to remain silent.
Can the death penalty be imposed on an accomplice-defendant?
Death penalty may be imposed on a defendant who is convicted of felony murder, it may not be imposed on an accomplice-defendant, who does not kill, attempt to kill, or intend to kill the victim, unless the defendant significantly participated in the commission of the felony and acted with reckless indifference to human life.
Is the lethal injection considered cruel and unusual punishment?
Death by lethal injection is not generally considered cruel and unusual punishment because there is only a mere possibility that the condemned may receive an improperly administered shot that would cause him unnecessary pain.
Does the Fifth Amendment Double Jeopardy Clause prohibit retrial if the second prosecution is due to the jury being deadlocked after voting and deliberating?
Generally, the Fifth Amendment Double Jeopardy Clause protects against a second prosecution for the same offense; however, it is not applicable when a mistrial has been declared due to a hung jury and a retrial will not be a violation of the clause.
When does jeopardy attach?
Jeopardy attaches when the jury is empaneled and sworn.
Does the defendant’s lack of consent to a retrial violate the protection from double jeopardy?
Although a defendant can be retried if the defendant asks for or consents to a mistrial, a defendant’s failure to consent to a mistrial does not render a retrial a violation of the defendant’s protection from double jeopardy.
Does the constitutional protection against double jeopardy apply to a civil action (revoking a professional license) against a person based on conduct for which the person has been subjected to criminal punishment?
The constitutional protection against double jeopardy generally does not apply to civil sanctions imposed on conduct for which a person has previously been subject to criminal punishment. For this purpose, the loss of a professional license is a civil, rather than criminal penalty
