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
Delays caused by counsel assigned by the court should ordinarily be attributed to…
the defendant
The minimum number of jurors that can fulfill the Sixth Amendment right to a trial by jury is:
Six
Must a defendant’s confession be corroborated in order to convict the defendant in a criminal case?
Yes, by any extrinsic evidence that tends to establish the trustworthiness of the confession
The Sixth Amendment grants a defendant the right to confront adverse witnesses.
In a criminal trial, the confession of one co-defendant is __________ as evidence against another defendant.
Generally inadmissible. Only admissible if
-the co-defendant takes the witness stand and subjects himself to cross-examination about the statement or
-if the references to the defendant can be removed
-if the confession is being introduced to rebut D’s allegations that he was forced into confessing
In _______ cases, the fact that the defendant and victim are of different races automatically entitles the defendant to question a prospective juror on racial bias.
capital
After a defendant successfully appeals a conviction and is retried by the same judge, the judge may impose a sentence _______.
no harsher than the original sentence unless based on conduct on the part of the defendant occurring after the original sentencing proceedings
When is the constitutional right to jury trial available?
Only for serious offenses (imprisonment for more than six months is authorized.)
A state ___________ make the death penalty a mandatory sentence ____________.
may never; for any crime
Considerations in whether judge accepts guilty pleas
- Judge’s determination that the defendant’s decision to plead guilty was made voluntarily and intelligently (D understands not obligated to plead guilty)
- Evidence that the defendant is aware of his right to a trial and the consequences of waiving that right (D knows he is waiving the right by the plea)
- Defendant’s acknowledgment on the record that he understands the nature of the charge, elements of the crime, and possible penalties involved
Under the Equal Protection Clause, can the prosecution or defense exercise peremptory challenges on basis of race or sex?
No, neither of them can. State action is involved in both.
What is cruel and unusual punishment under the 8th Amendment?
When it is grossly disproportionate to the seriousness of the crime. This violates the 8th amendment prohibition on cruel and unusual punishment
Defendant signed a confession to a crime at the police station shortly after his arrest.
Is this confession sufficient in and of itself to convict Defendant?
No; a conviction cannot be based entirely on an uncorroborated extrajudicial confession
If a state allows the death penalty as a possible punishment, it:
Must allow the trier of fact to consider all relevant mitigating circumstances in determining whether death is the appropriate sentence
double jeopardy applies to trials by…
the same sovereign. i.e. states and its municipalities
double jeopardy prohibits…
retrying a defendant for a more serious offense than at his first trial, even if at the second trial the defendant actually is convicted only of an offense no more serious than the one at the first trial.
Collateral estoppel
prohibits a defendant from being tried or convicted of a crime if a prior prosecution resulted in a factual determination inconsistent with one required for conviction.
Blockburger same offense test
Two crimes do not constitute the same offense if each crime requires proof of an element that the other crime does not require
cumulative punishments for two offenses that constitute the same crime- violate Double Jeopardy Clause?
yes, unless they are intended to carry separate punishments and are imposed at a single trial
when may a D be retried even though double jeopardy has attached?
a) If he successfully appealed his conviction
b) If his first trial ended in a hung jury
c) If there was a manifest necessity to end the original trial before a verdict
When does jeopardy attach in a jury trial?
At the empaneling and swearing of the jury
If D objects to the judge warning the jury not to draw an adverse inference from D’s invocation of his right to remain silent, must the judge listen?
the judge may warn the jury not to draw an adverse inference, even over the defendant’s objection.
jury may NOT draw adverse inference
4th Amendment protections
Right to be free of unreasonable searches and seizures by the government
5th Amendment protections
Privilege against self-incrimination (during interrogation and at trial)
Right to counsel during interrogation if invoked per Miranda
Protection against double jeopardy
6th amendment protections
Right to confront witnesses
Right to speedy, public trial
Right to jury trial
Right to assistance of counsel at critical stages of proceeding
8th Amendment
Prohibition on cruel and unusual punishment
Prohibition on excessive fines
Why is a warrant required? What makes a valid warrant?
It ensures that a search (a violation of D’s REP) will not be unreasonable.
To be valid: 1) must have probable cause; 2) must particularly state the place to be searched or the person or item to be seized; 3) must be issued by a neutral, detached magistrate
Warrant exceptions for a search
Acronym- cheap CCTV
Consent- given by any occupant with access and co-occupants do not object
Hot Pursuit of Fleeing Felon into areas where there is REP
Evanescent Evidence- risk that evidence will disappear
Arrest
Plain View- lawful presence + immediately apparent that the item is contraband or evidence
Community Caretaker- enter area with REP if the public or a person’s health or safety is in danger
Terry Frisk- during a stop when reas suspicion D is armed and dangerous
Vehicles- PC to believe car contains or is contraband or evidence of contraband, is fruit of a crime, or is an instrumentality used in a crime
Warrant exceptions- seizures
Consent
Stop
Plain View
Probable cause
Trustworthy facts or information fora reasonable person to believe the suspect has committed a crime or is in process of committing a crime
Reasonable suspicion
Reasonable suspicion of criminal activity based on articulable facts
Times when D does not have reasonable expectation of privacy
He is in someone else’s home and is not an overnight guest
Info is held out to the public- smells, visible things, sound of voice
Info given to third parties, like bank records (exception: cell site location in hands of phone companies)
Open fields (even if fenced)
Garbage on the curb
When is a place treated as a person’s home?
If they own it
If they rent it
If they are part of the family or otherwise have the right to live there
If they are an overnight guest there
Which amendments apply to confessions?
Fourth amendment (if obtained during unlawful arrest)
Fifth amendment
Sixth amendment
Fourteenth amendment
Consequences of depriving D of his right to counsel after proceedings start
Non-trial: harmless error test. If the D had counsel, would there be a different outcome?
Trial: automatic reversal
Exclusionary rule exceptions
Miranda violations that were not purposeful
Good faith reliance on a defective warrant when lack of PC or particularity would not be apparent to a reasonable officer
Independent source
Inevitable discovery by police
Intervening act or circumstance
Violation of knock and announce
Grand jury proceedings
When does jeopardy attach in a bench criminal trial?
When the first witness is sworn
Exceptions to double jeopardy
Defendant successfully appeals his conviction based on weight (not sufficiency) of evidence
Manifest necessity to abort the original trial (ex: D has heart attack, court is closed due to threat to public health/safety)
D requests to stop the trial
Defendant breaches plea bargain
Hung jury- not unanimous conviction
New evidence is discovered after the first trial and it couldn’t have been discovered with due diligence, or if it happens later (ex: D prosecuted for aggravated battery and V later dies).
Trial by separate sovereigns (the state and the feds). NOTE: city and state can’t both try a crime.
Double jeopardy
Defendant may not be retried for the same offense or a greater offense once jeopardy has attached
Note: if jeopardy has attached for an offense with lesser included offenses and those offenses are not part of the first trial, they can’t be added to the later trial.
Evidence that D can and can’t be compelled to produce in accordance with 5th amendment protection against self-incrimination
Only prohibits prosecution from compelling testimonial incriminating evidence (factual assertion/disclosing info)
Ex of non testimonial: DNA, hair, blood, handwriting, voice
Documents- act of producing docs does not involve testimonial self-incrimination
search defined
intrusion into a place or thing that D has a REP in, or intrusion into a constitutionally protected area (biggest one is home)
does exclusionary rule apply if D is unlawfully searched but no evidence is found?
No, only the person who has the REP in the area where the evidence was found will be able to object
if a sentence can be increased if additional facts are proven, who has the burden and who must make the finding of fact?
if the offense is a serious offense (6+ months) the jury must make the finding of fact and the prosecution must prove it beyond a reasonable doubt
if a defendant is tried for a crime that is a lesser included offense of another crime that the state seeks to charge him with later, is there a double jeopardy problem?
yes, attachment of jeopardy for a lesser included offense bars retrial for a greater offense
if a defendant is tried for a crime and found guilty, can he later be tried for another crime that is a lesser included offense?
no. attachment of jeopardy for the greater offense bars retrial for lesser included offenses
if a fact that needed to be proven for a higher sentence was not submitted to the jury what is the effect?
defendant’s right to jury trial has been violated
the sentence may be overturned if it was not a harmless error
what is required for a jury verdict?
it must be unanimous
when can an attorney seek to exclude a juror for cause and what is the purpose of the right to do so?
when the juror’s views will prevent or substantially impair the juror’s performance of duties
the purpose is to protect defendant’s right to an impartial jury
who holds the burden of proof on a defense?
the defendant
permissive v mandatory presumptions in jury instructions
a permissive presumption tells the jury they may infer that an element has been proven if prosecutor has proven a basic fact
a mandatory presumption (saying intent is presumed but may be rebutted, for example) violates the 14th amendment requirement that the state prove beyond a reasonable doubt
when can a person use deadly force in self defense?
When (i) he is without fault, (ii) he is confronted with unlawful force, and (iii) he is threatened with imminent death or great bodily harm
Who can give consent for the consent exception?
Someone who appears to have an apparent right to use or occupy the premises. The consent is valid as long as the police reasonably believed that the person who gave the consent had the authority to give consent
who has standing to challenge a stop of a car?
The driver and all passengers, because passengers have been subject to a seizure as well
if there is an invalid stop, and evidence is found in the car, will it be admissible against a passenger?
No, because passenger has standing to challenge the stop. without the stop the evidence couldn’t have been found
