AMP Flashcards
The 5th Amendment applies to which persons?
Natural persons- NOT corporations
For a state to be able to compel testimony through the offer of immunity, the immunity must extend to use of the immunized testimony itself and to anything derived from that testimony by:
both the federal and state govt
If a defendant chooses to remain silent at trial, can the prosecution comment about it?
Ordinarily, prosecution can’t comment about it UNLESS D argues he never had a chance to explain his side of the story.
When/how can a witness invoke 5th amend privilege against self-incrimination during criminal proceedings?
W- must be sworn in, then invoke. W can’t refuse to take stand
Criminal D- may refuse to take stand at trial.
For Fourteenth Amendment purposes, a confession is involuntary only if it is the product of:
Official compulsion, based on the totality of the circumstances
6th amendment requires D to be allowed to confront witnesses. Unless D has had a chance to cross examine an unavailable witness, the 6th amendment includes excluding testimonial evidence, which is defined as…
Evidence that explicitly relate a factual assertion or disclose information.
Ex: Writing down one’s bank accounts would disclose information and thus be considered testimonial, permitting the person to raise the privilege.
If a criminal D takes the witness stand, he…
has waived the privilege against self-incrimination. but only to extent subject to cross examination.
Miranda rights
- The detainee has the right to remain silent
- anything she says can be used against her in court
- she has the right to counsel
inevitable discovery Miranda exception
if the prosecution can show that the police would have discovered the evidence whether or not they had acted unconstitutionally, the evidence will be admissible.
Under Miranda, if a detainee makes a request for counsel but the request is ambiguous, the police:
may continue questioning.
to be ambiguous, request must not be sufficiently clear that a reasonable police officer in the same situation would understand the statement to be a request for counsel.
For Miranda purposes, the determination of whether a person is in custody is a(n):
Objective test
When Miranda warnings are required
Anyone in police custody and accused of a crime, no matter how minor a crime, must be given Miranda warnings prior to interrogation
must be govt conduct- generally applies only to interrogation by the publicly paid police, but also state-ordered psych exam
If a suspect invokes his right to remain silent, the police may resume questioning if
they scrupulously honor the request to remain silent, give D new warnings, and question him about a different crime
Miranda- interrogation defined
any police tactic that officers should know is likely to elicit an incriminating response.
f a defendant files a motion to suppress his confession claiming that he did not waive his Miranda rights, the government must show that the Miranda waiver was:
voluntary
knowing
need not be written.
if D invokes right to counsel, can the police continue to question?
No. All questioning must cease until the detainee is provided with an attorney or initiates further questioning himself. Exception- if he later waives his right to counsel, or he gets released and is brought back in 14 days later
When must warnings be given when a civilian interrogates D?
when D knows civilian is working with police. if D knows, there might be a coercive atmosphere.
if a confession was obtained in violation of Miranda can it be used at trial?
Yes, if:
used to impeach
police officers did not intentionally ask questions first, obtain confession, and then warn later
The public safety exception applies (ex: asking D if he has a gun/ where it is)
test of custody
Whether a reasonable person would think he was not free to leave and terminate the encounter. depends on whether his freedom of action is denied in a significant way. objective test- reasonable person think in custody. AND
Whether the environment has the same coercive pressure as interrogation at the station. length of time and degree of restriction relevant.
note: routine traffic stop not custodial- curtails a motorist’s freedom of movement, but such a stop is presumptively temporary and brief, and the motorist knows that he typically will soon be on his way
Independent source doctrine
Evidence obtained from a lawful, independent source
Ex: Police officers perform an unconstitutional search of a building, find contraband, do not seize it, and later return to the building with a valid warrant based on information totally unrelated to the unconstitutional search. Police seize contraband pursuant to warrant.
When does the Sixth Amendment right to counsel apply?
Whenever adversary judicial proceedings begin: after the defendant has been formally charged.
. not enough to have only been arrested.
It applies to all critical stages in the prosecution.
What is a charging grand jury responsible for determining?
Whether the government has probable cause to prosecute
When does a suspect have a right to counsel under the 6th Amendment?
Critical stages of a criminal proceeding. Applies after the D is charged.
- Post-indictment interrogation whether custodial or not;
- Preliminary hearings to determine probable cause to prosecute;
- Arraignment;
- Post-charge lineups;
- Guilty plea and sentencing;
- Felony trials;
- Misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed;
- Overnight recesses during trial;
- Appeals as a matter of right; and
- Appeals of guilty pleas and pleas of nolo contendere.
defendant has a right to be released from pretrial detention unless there is __________.
probable cause to detain him
Is the Fifth Amendment offense specific once right to counsel invoked?
No. police cannot interrogate the defendant about any charge without counsel.
Is the Sixth Amendment offense specific?
Yes. the defendant can be interrogated regarding a different charge.
Can the 5th and 6th Amendment rights be waived?
Yes, by a knowing and voluntary waiver.
What are the two prongs of a successful ineffective assistance of counsel claim?
Deficient performance by counsel (specific explanation of how it was deficient) and but for the deficient performance the result would have been different
If a charging grand jury determines probable cause to prosecute it will return
a bill of indictment as a “true bill.”
Does a grand jury witness have the right to an attorney?
Not at the trial but may consult with one outside the grand jury room
Incompetency depends on D’s mental condition when…
trial happens
Insanity depends on D’s mental condition when…
the offense was committed
In determining whether someone’s right to speedy trial is violated
The determination is made by an evaluation of the totality of the circumstances, and the following factors should be considered: (i) length of the delay, (ii) reason for the delay, (iii) whether the defendant asserted his right, and (iv) prejudice to the defendant.
D must have been arrested or charged at this point.
Does a witness in a grand jury have the right to Miranda warnings or warnings that she may be a potential defendant?
No
Incompetency to stand trial- who must raise it, when does it exist, and what is the impact of a finding that D is incompetent to stand trial?
The defense attorney or the judge
Exists when the defendant lacks a rational and a factual understanding of the charges and proceedings or consult with their lawyer with a reasonable degree of understanding
effect is that the defendant cannot stand trial until he regains competency
