C/P cont Flashcards
4th amendment
unreasonable search and seizure
5th amendment
privilege against compulsory self-incrimination
privilege against compulsory self-incrimination
6th amendment
speedy trial
public trial
trial by jury
confront witnesses
compulsory process for obtaining witnesses
assistance of counsel
8th amendment
prohibition against cruel and unusual punishment
prohibition against excessive fines
The right to indictment by a grand jury for capital and infamous
crimes has been held
not to be binding on the states.
The Fourth Amendment provides that people should be free from
unreasonable searches and seizures. _____by a
government agent over a person or thing is a seizure.
Governmental
seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and so must be reasonable.
Any exercise of control
A seizure occurs when
under the totality of the circumstances, a
reasonable person would feel that they were not free to decline the
officer’s requests or otherwise terminate the encounter
An arrest occurs when
the police take a person into custody against
their will for purposes of criminal prosecution or interrogation
An arrest must be based on probable cause—that is,
trustworthy
facts or knowledge sufficient for a reasonable person to believe that
the suspect has committed or is committing a crime for which arrest
is authorized by law. Probable cause is based on the totality of the
circumstances.
A warrant generally is not required before arresting a person in
a public place. However, police generally ___
must have a warrant to
effect a nonemergency arrest of a person in their home. The officers
executing the warrant may enter the suspect’s home only if there is
reason to believe the suspect is within it
Police must _____to bring a suspect to
the station for questioning or fingerprinting against the person’s will.
have full probable cause for arrest
An _____, by itself, has no impact on any subsequent
criminal prosecution.
unlawful arrest
The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a ______ of criminal activity or involvement in a completed crime,
supported by _____(that is, not merely a hunch), they may
detain a person for investigative purposes. If the police also have
reasonable suspicion that the detainee is_____,
they may frisk the detainee for weapons.
reasonable suspicion
articulable facts
armed and dangerous
Reasonable suspicion is
more than just vague suspicion but is less
than probable cause.
Whether the police have reasonable suspicion
depends on
the totality of the circumstances.
When reasonable suspicion is based on an informant’s tip, there must
be
an indicia of reliability (including predictive information) to be
sufficient.
Investigatory stops are not subject to a specific time limit. The police
must act in a
diligent and reasonable manner in confirming or
dispelling their suspicions. The police may ask the detained person
to identify themself (that is, state their name) and generally may arrest
the detainee for failure to comply with such a request. The detention
will also turn into an arrest if during the detention other probable
cause for arrest arises.
Brief property seizures are similarly valid if based on
reasonable
suspicion.
Generally, police officers may stop a car if they have
at least reasonable suspicion to believe that a law has been violated.
During routine traffic stops,_______, so long
as the police do not extend the stop beyond the time needed to
issue a ticket or conduct normal inquiries.
Moreover, in 2013 the
Supreme Court held that during such a traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause for a search.
**But note: In 2013, the Supreme Court also held that the police
(without probable cause) cannot use a drug sniffing dog outside of
the home of a suspected drug dealer.
a dog sniff is not a search
A police officer’s mistake of law (for example, mistakenly believing that a vehicle must have two working brake lights) does not invalidate
a seizure as long as the mistake was
reasonable.
An automobile stop constitutes a seizure not only of the automobile’s
driver, but also of any passengers as well. Thus,
passengers have
standing to raise a wrongful stop as a reason to exclude evidence
found during the stop
If the police set up a roadblock for purposes other than seeking
incriminating information about the drivers stopped, the roadblock
will be constitutional. If special law enforcement needs are involved,
the Supreme Court allows police officers to set up roadblocks to stop
cars without individualized suspicion that the driver violated some
law. To be valid, the roadblock must
- Stop cars on the basis of some neutral, articulable standard (for
example, every car) and - Be designed to serve purposes closely related to a particular
problem pertaining to automobiles and their mobility
After lawfully stopping a vehicle, in the interest of officer safety, the
officer may
order the occupants of the vehicle to get out.
Moreover,
if the officer reasonably believes the detainees are armed, the officer
may frisk the occupants and search the passenger compartment for
weapons, even after the officer has ordered the occupants out
If the police have probable cause to believe a driver violated a traffic
law, they may stop the car, even if
their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.
Like arrests, evidentiary searches and seizures must be reasonable
to be valid under the Fourth Amendment, but here reasonableness
requires a warrant except in six circumstances. Evidentiary search
and seizure issues should be approached using the following analytical model:
1) governmental conduct
2) standing
3) valid warrant
4) exceptions to warrant req
governmental conduct
police officers
government agents
private individuals acting at direction of police
There are two ways in which searches and seizures can implicate
an individual’s Fourth Amendment rights:
(1) search or seizure by a
government agent of a constitutionally protected area in which the
individual had a reasonable expectation of privacy; or (2) physical
intrusion by the government into a constitutionally protected area to
obtain information.
standing to object
reasonable expectation of privacy w respect to place searched or item seized
when person has reasonable expectation of privacy
person owned or had right to possess place searched\
place searched is persons home
person is overnight guest of owner
there is no right to privacy in
sound of your voice
style of your handwriting
paint on outside of your car
account records held by bank
location of car on public street or driveway
anything seen across open fields
odors from luggage or car
garbage set out on curb for collection
Use of sense-enhancing technology that is not in general
public use (for example, a thermal imager as opposed to a telephoto
camera lens) to obtain information from inside a suspect’s home that
could not otherwise be obtained without physical intrusion violates
the suspect’s legitimate expectation of privacy.
And police officers
may not covertly and trespassorily place a GPS tracking device on a
person’s automobile without a warrant.
Generally, criminal law enforcement officers must have a warrant to
conduct a search unless it falls within one of the six exceptions to the
warrant requirement. There are two core requirements for a facially
valid search warrant:
probable cause and particularity
A warrant will be issued only if there is probable cause to believe
that seizable evidence will be found on the person or premises at the
time the warrant is executed. Officers must
submit to a magistrate
an affidavit setting forth circumstances enabling the magistrate to
make a determination of probable cause independent of the officers’
conclusions
An affidavit based on an informer’s tip must meet the “totality of the
circumstances” test. Under this test, the informant’s ______are relevant factors in making
this determination. Note that the informer’s identity generally need
not be revealed.
reliability and
credibility or their basis for knowledge
A search warrant issued on the basis of an affidavit will be held
invalid if the defendant establishes all three of the following:
A false statement was included in the affidavit by the affiant (the
officer applying for the warrant)
* The affiant intentionally or recklessly included the false statement; and
* The false statement was material to the finding of probable
cause
particularity
warrant must describe w particularity place to be searched and items to be seized
A warrant can predict when illegal items may be in a suspect’s home
or office. The items need
not be on the premises at the time the
warrant is issued
A warrant may be obtained to search premises belonging to nonsuspects, as long as
there is probable cause to believe that evidence will
be found there.
warrant execution
only police may execute warrant
no third parties unless identifying stolen property
violation of knock and announce rule will not result in suppression of evidence
search incident to arrest
police can search after valid arrest
police can make protective sweep of area
search must be contemporaneous in time and place w arrest
If an arrest is unconstitutional, any search incident to that arrest
is
also unconstitutional.
The police may conduct a search of the passenger compartment of
an automobile incident to arrest only if at the time of the search:
The arrestee is unsecured and still may gain access to the interior
of the vehicle; or
The police reasonably believe that evidence of the offense for
which the person was arrested may be found in the vehicle
What can be searched? The person and the
the areas within the person’s
wingspan.
In assessing the validity of a search incident to arrest involving things
that did not exist when the Fourth Amendment was adopted (for
example, cell phones, blood alcohol tests), the court will
balance
the degree to which the search incident to arrest intrudes upon a
person’s privacy against the degree to which the search is needed to
promote legitimate governmental interests.
technological searches
warrantless breath test permitted but not blood test
physical attributes of cell phone may be searched but not data
at the police station, the police may make an inventory search of
_______pursuant to established department
procedure. Similarly, the police may make an inventory search of an
impounded vehicle
the arrestee’s belongings
automobile exception
if police have probable cause to believe vehicle contains fruits instrumentalities or evidence of a crime they may search entire vehicle and any container that might reasonably contain the item
The search may extend to _____belonging to a passenger; it is
not limited to the driver’s belongings.
packages
If the police have probable cause only to search a container in a
vehicle (for example, luggage recently placed in the trunk), they may
search _______
only the container, not other parts of the vehicle.
automobile exception PC necessary to justify search of car can arise after
car is stopped
plain view exception; police may make a warrantless seizure when:
legitimately on the premises
discover evidence contraband or fruits or instrumentalities of crime
see evidence in plain view
have probable cause to believe item is evidence contraband or fruits or instrumentalities of crime
A warrantless search is valid if the police have ____
a voluntary consent
person w apparent equal right to use or occupy property may consent
however occupant cant give valid consent when
co-occupant is present and objects
if co-occupant is removed for unrelated reason, police may act on consent of
remaining occupant
terry stop
brief detention for purpose of investigating suspicious conduct
terry frisk
pat down of outer clothing and body to check for weapons
terry frisk; officer may seize any item that officer reasonably believes, based on plain feel
is weapon or contraband
If a vehicle is properly stopped for a traffic violation and the officer
reasonably believes that a driver or passenger may be armed and
dangerous, the officer may
(1) conduct a frisk of the suspected
person, and (2) search the vehicle, so long as it is limited to the areas
in which weapon may be placed.
However, if the fleeing person is suspected of a _____, their
flight does not always justify a warrantless entry into a home.
misdemeanor
Evanescent evidence is evidence that might _____ if the
police took the time to get a warrant. For example, a police officer
can scrape under a suspect’s fingernails without getting a warrant
because if the officer took the time to get a warrant the defendant
might go wash their hands.
disappear quickly
Police in hot pursuit of a _____ may make a warrantless search
and seizure and may even pursue the suspect into a private dwelling.
The
officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless
entry.
Rule of thumb: If the police are not within 15 minutes behind the
fleeing felon, it is not a hot pursuit that falls under the exception.
fleeing felon
emergency aid/ community caretaker exception
police may enter premises w/o warrant if officer faces emergency that threatens health or safety
A warrant or probable cause is not required for public school officials
to search public school students or their possessions; only reasonable grounds for the search are necessary. A school search will be
held to be reasonable only if:
It offers a moderate chance of finding evidence of wrongdoing
The measures adopted to carry out the search are reasonably
related to the objectives of the search; and
The search is not excessively intrusive in light of the age and sex
of the student and nature of the infraction
unreliable ear
speaker assumes risk other person consents to gov monitoring or is an informer
uninvited ear
speaker has no 4th amendment claim if they make no attempt to keep conversation private
confession must be voluntary
voluntariness determined by totality of circumstances
harmless error test applies-> conviction need not be overturned if overwhelming evidence of guilt
6th amendment right to counsel
applies to all critical stages of prosecution after judicial proceedings have begun
stages when 6th amendment right to counsel applies
post interrogation
preliminary hearings to determine probable cause to prosecute
arraignment
post charge lineups
guilty plea and sentencing
felony trials
misdemeanor trials when imprisonment actually imposed
overnight recesses during trial
appeals as matter of right
appeals of guilty pleas
stages when 6th amendment right to counsel does not apply
- Blood sampling
- Taking of handwriting or voice exemplars
- Precharge or investigative lineups
- Photo identifications
- Preliminary hearings to determine probable cause to detain
- Brief recesses during the defendant’s testimony at trial
- Discretionary appeals
- Parole and probation revocation proceedings
- Post-conviction proceedings
The Sixth Amendment is ____ specific
offense
Thus, even though a
defendant’s Sixth Amendment rights have attached regarding
the charge for which they are being held, the defendant may be
questioned regarding unrelated, uncharged offenses without
violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant’s Fifth Amendment right to
counsel under Miranda; see below).
waiver of right to counsel must be
knowing and voluntary
At nontrial proceedings (such as post-indictment interrogations),
the harmless error rule applies to deprivations of counsel. But if
the defendant was entitled to a lawyer at trial, the failure to provide
counsel results in
automatic reversal of the conviction, even without
a showing of specific unfairness in the proceedings. Similarly,
erroneous disqualification of privately retained counsel at trial results
in automatic reversal.
miranda warnings- req’d when in custodial interrogation
person must be told
1) right to remain silent
2)anything said can be used against them in court
3)right to attorney
4)if person cant afford attorney, one will be appointed
miranda warnings necessary only if detainee knows
they are being interrogated by government agent
two step process for determining custody
whether reasonable person would feel free to terminate interrogation and leave
whether environment presents same inherently coercive pressures as station house questioning
interrogation req
interrogation: any words or conduct by police that they should would likely elicit an incriminating response
miranda warnings not req’d before spontaneous statements
Right to Waive Rights or Terminate Interrogation
After receiving Miranda warnings, a detainee has several options:
do nothing,
waive their Miranda rights, assert the right to remain silent,
or
assert the right to consult with an attorney
invocation of right to remain silent
unambiguous
police must scrupulously honor request by not badgering detainee
invocation of right to counsel
must be unambiguous
all questioning must cease until counsel has been provided unless detainee
waives right to counsel or
is released back to normal life and 14 days have passed since release
effect of miranda violation
evidence generally inadmissible
statements may be used to impeach defendants trial testimony but not used as evidence of guilt
detainee gives poluce info that leads to nontestimonial evidence-> evidence suppressed if
failure to give miranda warnings was purposeful but likely admitted if failure not purposeful
public safety exception
police can interrogate w/o miranda warnings when reasonably prompted by concern for public safety
6th amendment right to counsel at post charge lineup or show up no right to counsel at _____
photo identifications
d can attack identification if it is
unnecessarily suggestive and there is substantial likelihood of misidentification
remedy for unconstitutional identification is
to exclude it; but witness may make in court identification if it has an independent source
Admissibility of identification evidence should be determined at
a suppression hearing in the absence of the jury, but exclusion of
the jury is not constitutionally required. The government bears the
burden of proving that:
(1) counsel was present; (2) the accused
waived counsel; or (3) there is an independent source for the in-court
identification. The defendant must prove an alleged due process
violation
exclusionary rule
unconstitutionally obtained evidence excluded at trial
fruit of poisonous tree
evidence obtained from exploitation of unconstitutionally obtained evidence
exceptions to fruit of poisonous tree
fruits derived from statements in violation of miranda
independent source
casual link b/w police misconduct and evidence is broken
intervening act of free will
inevitable discovery
violations of knock and announce rule
three Ins that make evidence admissible
independent source
intervening act of free will
inevitable discovery
It is difficult to have live witness testimony excluded on
exclusionary
rule grounds.
A defendant ____exclude a witness’s in-court identification on the
ground that it is the fruit of an unlawful detention.
may not
The exclusionary rule is ______ to grand juries unless evidence
was obtained in violation of the federal wiretapping statute. The
rule is also _____ at parole revocation proceedings, in civil
proceedings, or where evidence was obtained contrary only to state
law or agency rules.
inapplicable
The exclusionary rule does _____ when the police arrest
someone erroneously but in good faith thinking that they are acting
pursuant to a valid arrest warrant, search warrant, or law
not apply
exceptions to good faith reliance on defective warrant
affidavit so lacking in probable cause no reasonable officer would rely on it
affidavit so lacking in particularity no reasonable officer would rely on it
officer or prosecutor lied to or misled magistrate
magistrate is biased and wholly abandoned neutrality
voluntary confession taken in violation of Miranda ____ for impeachment
admissible
harmless error test
if illegal evidence admitted conviction should be overturned on appeal unless gov can show beyond a reasonable doubt that error was harmless
If
probable cause has not already been determined and there are significant constraints on an arrestee’s liberty (for example, jail or bail,
but not release on recognizance), a preliminary hearing to determine
probable cause must be held within a reasonable time (for example ___
hours)
48
The Fifth Amendment right to indictment by grand jury ___
been incorporated into the Fourteenth Amendment, but some state
constitutions require grand jury indictment
has not
grand jury proceedings
conducted in secret
d has no right to notice
no right to counsel
no right to have evidence excluded
no right to challenge subpoena on 4th amendment grounds
convicttion from indictment issued by grand jury from which minority group excluded will be reversed
A determination of whether a defendant’s Sixth Amendment right
to a speedy trial has been violated is made by an evaluation of
the
totality of the circumstances
A determination of whether a defendant’s Sixth Amendment right
to a speedy trial has been violated is made by an evaluation of the
totality of the circumstances. Factors considered are
the length of
delay,
reason for delay,
whether defendant asserted their right, and
prejudice to defendant.
The remedy for a violation of the right to a
speedy trial is dismissal with prejudice.
The right to a speedy trial does not attach until
the defendant has
been arrested or charged
The government has a duty to disclose material, exculpatory
evidence to the defendant. Failure to disclose such evidence—
whether willful or inadvertent—violates the Due Process Clause
and is grounds for reversing a conviction if the defendant can prove
that
(1) the evidence is favorable to the defendant because it either
impeaches or is exculpatory; and
(2) prejudice has resulted (that is, there is a reasonable probability that the result of the case would
have been different if the undisclosed evidence had been presented
at trial).
Insanity is a defense to a criminal charge based on the defendant’s
mental condition at ____
A defendant acquitted by reason of insanity may not be retried and
convicted, although they may be hospitalized under some circumstances.
Incompetency to stand trial, on the other hand, is not a
defense to the charge, but rather is a bar to trial.
It is based on the
defendant’s mental condition at the time of trial. If the defendant
later regains competency, they can then be tried and convicted.
the time they committed the charged crime.
Due process is violated if the judge is shown to have ___
against the defendant or to have had a _____ in having
the trial result in a guilty verdict. Impermissible bias also is present
when a judge earlier had significant, personal involvement as a
prosecutor in a critical decision regarding the defendant’s case.
actual malice
financial interest
There is no constitutional right to jury trial for petty offenses, but only
for serious offenses. An offense is serious if imprisonment for more
than ____ is authorized. Also, there is no right to jury trial in
juvenile delinquency proceedings.
six months
There is no constitutional right to a jury of 12, but there must be at
least ____ to satisfy the right to a jury trial. Jury verdicts must be
unanimous.
six jurors
A defendant has a right to have the jury selected from a ______ The defendant need only show the underrepresentation of a distinct and numerically significant
group in the venire to show their jury trial right was violated
representative cross-section of the community.
peremptory challenges
generally may use peremptory challenge for any reason
cannot challenge jurors solely on basis of race or gender
challenges for cause
juror should be excluded for cause if jurors views would prevent or substantially impair performance of duties
A defendant is entitled to questioning on voir dire specifically
directed to racial prejudice whenever race is bound up in the case or
the defendant is accused of ___
an interracial capital crime.
A defendant has a right to counsel. Violation of this right at trial,
including erroneous disqualification of the defendant’s privately
retained counsel, requires reversal. For nontrial denials, the ____
harmless
error test is applied
A defendant has a right to defend themself at trial if, in the judgment
of the judge, their waiver is _______ Note that
a defendant does not have a right to self-representation on appeal.
knowing and intelligent and, based on the
trial judge’s consideration of the defendant’s emotional and psychological state, the defendant is competent to proceed pro se.
The Sixth Amendment right to counsel includes the right to effective
counsel. This right extends to the first appeal. Effective assistance of
counsel is ____
generally presumed.
ineffective assistance of counsel
deficient performance by counsel
but for the deficiency result of proceeding would have been different
The Sixth Amendment grants to a defendant in a criminal prosecution the right to confront adverse witnesses. The right is not absolute:
Face-to-face confrontation is not required when preventing such
confrontation serves an important public purpose (for example,
protecting child witnesses from trauma). Also, a judge may remove a
disruptive defendant, and a defendant may voluntarily leave the courtroom during trial.
If two persons are tried together and one has given a confession that
implicates the other, the right of confrontation prohibits use of that
statement, even where the confession interlocks with the defendant’s
own confession, which is admitted. However, such a statement may
be admitted if:
- All portions referring to the other defendant can be eliminated
- The confessing defendant takes the stand and subjects themself
to cross-examination with respect to the truth or falsity of what the
statement asserts; or - The confession of the nontestifying co-defendant is being used to
rebut the defendant’s claim that their confession was obtained
coercively
Under the Confrontation Clause, prior testimonial evidence (for
example, statements made at prior judicial proceedings) may not be
admitted unless:
- The declarant is unavailable, and
- The defendant had an opportunity to cross-examine the declarant at the time the statement was made
The Due Process Clause requires in all criminal cases that the
state prove guilt beyond a reasonable doubt. The presumption of
innocence is a basic component of a fair trial. However, the state may
generally impose the burden of proof upon the defendant in regard
to ____
an affirmative defense, such as insanity or self-defense.
A mandatory presumption or a presumption that shifts the burden
of proof to the defendant violates the ___
requirement that the state prove every element of the crime beyond
a reasonable doubt.
Fourteenth Amendment’s
A judge is to give a jury instruction requested by the defendant or the
prosecution if the ____
instruction is correct, has not already been given,
and is supported by some evidence.
The judge must determine that the plea is ____
This must be done by addressing the defendant personally in open
court on the record.
voluntary and intelligent.
Specifically, the judge must be sure that the
defendant knows and understands things such as:
The nature of the charge to which the plea is offered and the
crucial elements of the crime charged
The maximum possible penalty and any mandatory minimum;
and
That the defendant has a right not to plead guilty and that if they
do plead guilty, they waive the right to trial
The remedy for a failure to meet the standards for taking a plea is
withdrawal of the plea and pleading anew.
Those pleas that are seen as an intelligent choice among a defendant’s alternatives are immune from collateral attack. But a plea
can be set aside for
(1) involuntariness (failure to meet standards
for taking a plea), (2) lack of jurisdiction, (3) ineffective assistance of
counsel, or (4) failure to keep the plea bargain.
plea bargain enforced against prosecutor and defendant but not ___ who does not have to accept plea
judge
A guilty plea is not ___ merely because it was entered
in response to the prosecution’s threat to charge the defendant with
a more serious crime if they do not plead guilty
involuntary
A guilty plea conviction may be used as a conviction in other
proceedings when relevant (for example, as the basis for sentence
enhancement). However, a guilty plea neither
admits the legality of
incriminating evidence nor waives Fourth Amendment claims in a
subsequent civil damages action.
A defendant has a right to counsel during
sentencing
death penalty
must be imposed under statutory scheme that gives jury reasonable discretion full information and guidance
no death penalty for rape
cannot execute prisoner who is insane at time of execution
no death penalty for person who is intellectually disabled
no death penalty for minors under 18 at time they committed offense
There ___ federal constitutional right to an appeal.
is no
If revocation of probation also involves imposition of a new sentence,
the defendant is entitled to representation by counsel in all cases in which
they are entitled to counsel at trial
habeas corpus proceeding
no right to appointed counsel
petitioner has burden of proof to show unlawful detention by preponderance of evidence
Prison regulations impinge on due process rights only if the regulations impose ___in relation to the
ordinary incidents of prison life.
“atypical and significant hardship”
person ___ be retried for same offense once jeopardy attaches
may not
when jeopardy attaches
jury trial : empaneling and swearing of jury
bench trial: when first witness is sworn
exceptions permitting retrial
first trial ends in hung jury
manifest necessity to abort first trial (medical emergency)
d successfully appealed conviction (unless ground for reversal was insufficient evidence)
d breached plea bargain
d could have been tried for multiple charges in single trial but chose to have offenses tried sep.
two crimes are the same offense unless
each crime req proof of additional element that other does not
lesser included offenses
attachment of jeopardy for greater offense bars retrial for lesser included offense
attachment of jeopardy for lesser included offense bars retrial for greater offense
An exception to the double jeopardy bar exists if unlawful conduct
that is subsequently used to prove the greater offense
1) has not
occurred at the time of prosecution for the lesser offense or (2) has
not been discovered despite due diligence. Similarly, a retrial for
murder is permitted if the victim dies after attachment of jeopardy for
battery
The Double Jeopardy Clause is ____when a person is
indicted for a crime the conduct of which was already used to
enhance the defendant’s sentence for another crime.
not violated
prohibition against double jeopardy does not apply to trials by separate sovereigns
state and federal government= sep sovereigns
2 states= sep sovereigns
state and its municipalities= same sovereign
privilege against self incrimination can be asserted by
any person in any type of case when answer to question might tend to incriminate them
A person may refuse to answer a question whenever their response
might furnish a link in the chain of evidence needed to prosecute
them.
their response
might furnish a link in the chain of evidence needed to prosecute
them.
The privilege must be claimed in civil proceedings to prevent
the privilege from being waived for a later criminal prosecution.
Thus,
if an individual responds to questions instead of claiming the privilege during a civil proceeding, they cannot later bar that evidence
from a criminal prosecution on compelled self-incrimination grounds.
A criminal defendant has a right ___ take the witness stand at
trial
not to
not to be asked to do so
being required to give ones name after terry stop ____ violate 5th amendment
does not
5th amendment privilege protects testimonial or communicative evidence and not
real or physical evidence
A person served with a subpoena requiring production of documents
tending to incriminate them A person served with a subpoena requiring production of documents
tending to incriminate them generally has no basis in the privilege to
refuse to comply,
because the act of producing the documents does
not involve testimonial self-incrimination.
The Fifth Amendment does not prohibit law enforcement officers
from searching for and seizing documents tending to incriminate a
person. The privilege protects against being ___, not against disclosure of communication made in
the past.
compelled to communicate information
A violation of the Self-Incrimination Clause does not occur until___
a
person’s compelled statements are used against them in a criminal
case
A prosecutor may not comment on a defendant’s silence after being
arrested and receiving Miranda warnings. Neither may the prosecutor comment on a defendant’s failure to testify at trial. However,
a defendant, upon timely motion, is entitled to have
the judge
instruct the jury that they may not draw an adverse inference from the defendant’s failure to testify. Moreover, the judge may offer this
instruction sua sponte, even over the defendant’s objection
prosecutor can comment on d’s failure to take stand when
in response to defenses assertion that d was not allowed to explain story
if suspect remains silent before miranda warning silence ____
can be used against them
When a prosecutor impermissibly comments on a defendant’s
silence, the ____ applies.
harmless error test
The state may not chill exercise of the Fifth Amendment privilege
against compelled self-incrimination by ______for failure
to testify
imposing penalties
A witness may be compelled to answer questions if granted
_____from prosecution.
adequate immunity
use and derivative use immunity guarantees that witness’s testimony and evidence located bc of testimony ______ be used against witness
will not
Testimony obtained by a promise of immunity is coerced and therefore involuntary. Thus, immunized testimony may not be used for
impeachment of a defendant’s testimony at trial. However, any
immunized statements, whether true or untrue, can be used in ____.
a trial
for perjury
Federal prosecutors ____use evidence obtained as a result of a
state grant of immunity, and vice versa.
may not
A person has no privilege against compelled self-incrimination if
there
no possibility of incrimination (for example, statute of limitations has run
Immunity extends only to the offenses to which the question
relates and does not protect against
perjury committed during the
immunized testimony.
waiver of privilege
d waives by taking witness stand
witness waives by disclosing incriminating information
The following rights must be given to a child during trial of a delinquency proceeding
(1) written notice of charges, (2) assistance of
counsel, (3) opportunity to confront and cross-examine witnesses,
(4) the right not to testify, and (5) the right to have “guilt” established
by proof beyond reasonable doubt.
The Supreme Court has held that there is _____in
delinquency proceedings. Pretrial detention of a juvenile is allowed
where it is found that the juvenile is a “serious risk” to society, as long
as the detention is for a strictly limited time before trial may be held.
no right to trial by jury
If the juvenile court adjudicates a child a delinquent, jeopardy has
attached and the prohibition against double jeopardy prevents the
child from being tried as an adult for the same behavior
The Supreme Court has held that the Excessive Fines Clause of the
Eighth Amendment applies only to fines imposed
as punishment; it
does not apply to civil fines. Thus, penal forfeitures are subject to the
Clause, but civil forfeitures are not.
Monetary forfeitures (for example, forfeiture of twice the value of
illegally imported goods) brought in civil actions generally ______
subject to the Eighth Amendment.
are not
