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Mixed Law Flashcards > Con Crim Pro > Flashcards

Con Crim Pro Flashcards

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1
Q

Does 5A privilege against self-incrimination apply to evidence generating civil or corporate liability?

A

NO, only CRIMINAL liability

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2
Q

May judge decide facts that expose D to greater punishment?

A

NO, only jury can decide aggravating circumstances

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3
Q

Is a spontaneous/volunteered statement after invoking right to counsel admissible?

A

yes, so long as not prompted by police

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4
Q

Must attorney advance all legitimate legal claims requested by client?

A

NO, he may use professional judgment to decide

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5
Q

Is exclusion based on race in grand jury permissible?

A

No, impermissible EPC violation

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6
Q

What level of suspicion is required by school officials to conduct search of student?

A

Reasonable suspicion

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7
Q

May police search non-named parties while executing warrant?

A

Yes, but only if there is INDEPENDENT JUSTIFICATION for the search

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8
Q

Does inmate have reasonable expectation of privacy in his cell?

A

NO

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9
Q

Is questioning at a police station always an interrogation?

A

No, if parties are informed that they are free to leave

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10
Q

Does a paying client have right to counsel of his choice?

A

Yes, barring limitations/public policy issues

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11
Q

Can mandatory presumptions against D be included in jury instructions?

A

NO, presumptions cannot be made in relation to any element of the charged crime

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12
Q

If open field is partially covered and is surrounded by thick forest, is it still open field for purposes of 4A?

A

Yes, no privacy expectations

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13
Q

Does 6A right to counsel attach if a jail sentence is possible?

A

No, only if the person is ACTUALLY given a jail sentence

(realistically this means counsel will be appointed whenever there is risk)

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14
Q

Does Brady (mandatory turnover of exculpatory evidence) apply to evidence that prosecution is not aware of?

A

YES, can apply to evidence that police are aware of

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15
Q

Does Brady penalize any failure to disclose exculpatory evidence regardless of actual prejudice?

A

Not necessarily–only if defendant shows DP rights have ACTUALLY been prejudiced by failure to disclose

Standard = favorable + material (reasonable probability of different outcome)

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16
Q

Can states create IQ cutoff to require finding of competence?

A

No, 8A prohibits states from making rules preventing a person from being found incompetent

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17
Q

If police approach someone with guns drawn and ask them an incriminating question, is this sufficient to establish that statement was involuntary?

A

Usually NO (need totality of circumstances argument)

Usually better bet for answer is lack of Miranda

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18
Q

If police have a valid warrant and proceed to knock and announce, but no one is home, may they gain forceful entry of the home?

A

YES, may force door/window open to enter

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19
Q

Does derivative-use immunity apply to subsequent civil proceedings?

A

No, only subsequent CRIMINAL proceedings

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20
Q

When can a court order exclusion of a witness from the courtroom?

A

WHENEVER party requests, a court MUST exclude witnesses, unless an exception applies

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21
Q

Exceptions when witness CANNOT be excluded from courtroom?

A

Officer or employee of party that is NOT natural person (e.g. police officer in charge of investigating crime)

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22
Q

Once purpose of warrant is satisfied, may search be continued?

A

NO, if purpose is e.g. to ascertain cause of fire, once source is found, search must END

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23
Q

Can non-police execute administrative warrants?

A

Yes, other govt officers like firefighters

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24
Q

When does undercover police investigation violate D’s rights?

A

If no 5A Miranda warning given + questioning is about crime that has NOT yet been charged: NOT a violation

If 6A right to counsel has been invoked and is attached, interrogation is critical stage, so if questioning is related to SAME case for which arrest occurred: THIS IS A VIOLATION

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25
Q

What is minimum number of jurors in criminal trial?

A

6

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26
Q

When may judge issue sentence related to finding of fact to increase penalty?

A

Rarely–usually in province of JURY

BUT may impose sentence higher penalty on basis of PRIOR CONVICTION

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27
Q

Dual Sovereignty Doctrine

A

Prosecution of D by federal govt does NOT prevent STATE from prosecuting defendant for same event (reverse also true)

May also be prosecuted for same crime in 2 DIFFERENT STATES

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28
Q

Is testimony given under grant of immunity coerced?

A

YES, therefore involuntary

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29
Q

Can GJ testimony for which use and derivative use is given be used solely to impeach?

A

NO, neither for impeachment nor substantive evidence

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30
Q

When may civil litigants in fed court request jury trial + when must filing occur

A

For ANY claim where amount exceeds $20

1) must be served within 14 days after last pleading directed to that issue and 2) filed to court within reasonable time after

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31
Q

Can a guilty verdict be challenged for being inconsistent with another verdict of same jury?

A

NO, acquittal of predicate offense does not mandate acquittal of related offense

32
Q

When is right to counsel required at probation revocation hearing?

A

If person
1) denies committing violation OR
2) asserts complex reasons to justify it

OR per 6A, if underlying offense has not been imposed and will be imposed if probation revoked

33
Q

Does defendant have REAP in bank records?

A

No, and thus NO warrant required for police to obtain

34
Q

Does 5A privilege apply to custodian of corporate records?

A

NO, even if docs would incriminate her personally, she must produce!

35
Q

Remedy when judge imposes harsher sentence in retrial to punish exercising right to appeal?

A

VACATE–this is DP violation

Okay to have harsher penalty during retrial, but ONLY IF not as punishment for exercising rights

36
Q

What is standard for evaluating if self-incrimination possible?

A

If there is REASONABLE POSSIBILITY that witness could incriminate self

(civil or criminal trial)

37
Q

When is a conviction automatically reverseable due to IAC?

A

When a POTENTIAL CONFLICT OF INTEREST was raised to judge and court does not grant motion or conduct hearing, there is AUTOMATIC REVERSAL

(tho usual standard requires actual conflict + prejudice demonstrated by D)

38
Q

What date does right to speedy trial attach?

A

Date of CHARGING

39
Q

Can D’s past convictions be introduced at trial if he does NOT confess?

A

NO, only to impeach if he testifies

40
Q

Can statement made during settlement negotiation be used to impeach if not used to prove validity of claim?

A

NO, NEVER USABLE!!

41
Q

When is character admissible to show propensity in civil case?

A

ONLY for past sexual assault by D when claim based on sexual misconduct

42
Q

Who may issue habeas writs for people in federal custody?

A

ONLY federal courts

(State court prohibited due to supremacy of federal courts)

43
Q

If you are charged w murder, can statements by murdered person be admissible because you rendered them unavailable?

A

NO, unless you murdered them for PURPOSE of making them unavailable at trial (not just in normal course of murder)

44
Q

When does emergency aid exigent circumstances apply?

A

WHen police reasonably believe that a person requires emergency aid, EVEN IF the person who needs aid is suspect, and EVEN IF they must enter a home without permission from homeowner

45
Q

Is counsel required to inform client about collateral consequences of conviction?

A

No, EXCEPT FOR immigration consequences

46
Q

Can reasonable suspicion establish exigent circumstances?

A

NO, must have probable cause to believe exigent circumstances justify warrantless search

47
Q

Does business records exception apply to business records made for illegal purpose?

A

YES, records of business for criminal enterprises are business records

STILL need someone with personal knowledge to authenticate

48
Q

Is a parolee in custody when being questioned by his parole officer?

A

NO, unless he is arrested or has been restrained

49
Q

If police violate 4A for person 1 and seize something improperly, which implicates Person 1’s co-defendant, may co-defendant move to suppress?

A

NO, he lacks standing, as he was not the party searched under 4A

50
Q

If police begin questioning someone and wait to give Miranda to lead person to believe they have already waived their rights, may statements given subsequent to Miranda be admitted?

A

NO, this circumvents purpose of Miranda

51
Q

Do students have REAP in items brought to public school campus?

A

YES, though school personnel only need “moderate chance”of finding contraband to conduct a search

52
Q

If a question is about 6A right to counsel, is correct answer about Miranda?

A

NO, will likely be about critical stages

A person may invoke their 6A rights after being Mirandized, but if they continue questioning after Miranda without expressly invoking, right does NOT attach until arraignment

53
Q

What is standard to evaluate if a prosecutor comments on a defendant’s failure to testify?

A

Harmless error, will likely be upheld UNLESS opposing counsel can show that it likely contributed to guilty verdict

Usually won’t happen if there is OVERWHELMING EVIDENCE

54
Q

Reversible error

A

When an error is sufficiently prejudicial to require that a case be reversed

55
Q

Structural error

A

Error effecting entire framework of criminal trial and rendering it fundamentally unfair

56
Q

Requirement for waiving right to counsel

A

Judge must ensure that D 1) knows nature of charges, punishment, and disadvantage of self representation and 2) is not being forced to choose between incompetent counsel and self-representation

57
Q

Must officer Mirandize person immediately upon arrest?

A

NO, only once questioning begins

(e.g. can drive someone in police car without Mirandizing, and if they voluntarily make statements, these statements are admissible)

58
Q

Can a mentally ill person waive Miranda rights?

A

YES, so long as waiver is WITHOUT police coercion, does not matter if it was due to mental illness

59
Q

Does due process apply to affirmative defenses?

A

NO

60
Q

Can state law eliminate affirmative defenses?

A

YES

(e.g. insanity)

61
Q

Affirmative defenses

A

DINED

Duress
Insanity
Necessity
Entrapment
Defense of property/persons

62
Q

Under best evidence rule, if an original is unavailable and its absence cannot be explained, may a party prove the contents through contents/deposition/statement of party against whom evidence is offered?

A

YES

63
Q

Are Miranda warnings needed to question suspect during Terry stop?

A

NO, so long as brief

64
Q

Is presence in high crime area enough for reasonable suspicion?

A

NO, police cannot seize someone on this basis

65
Q

Bilateral approach to conspiracy

A

TWO or more persons entered agreement with INTENT to commit specific crime

Minority rule

66
Q

Is a porch curtilage?

A

YES

67
Q

Is a drug dog in curtilage illegal search?

A

YES

68
Q

If item beyond scope of valid warrant is seized, is it excluded?

A

NO, NOT if in plain view

69
Q

May grand jury compel production of testimonial item eg. diary?

A

Yes, but ONLY IF USE and DERIVATIVE USE immunity provided

(do not need to provide full transactional immunity)

70
Q

Is greenhouse in curtilage? Is warrant needed?

A

LIKELY YES

CANNOT search without warrant

71
Q

Does automobile exception warrant apply during sobriety checkpoints?

A

YES, if probable cause generated from e.g. smelling marijuana, can search entire car

72
Q

If a person is acquitted of lesser included offense and then is charged with greater offense, does double jeopardy prohibit retrying ?

A

YES, CANNOT retry under Blockburger because need both charges to have different elements, NOT just one

73
Q

Does failure to knock and announce constitute improper execution of arrest warrant?

A

YES, even though can still take seized fruits, arrest improper if knock and announce not executed

74
Q

Is a cheek swab a search?

A

YES, but permissible if pursuant to arrest with PC

75
Q

Is a grant to dismiss a charge at close of prosecution’s case an acquittal? If D introduces evidence to raise that crime again during defense presentation, can charge be reinstated?

A

Yes, IT IS acquittal and cannot be retried bc of double jeopardy, EVEN IF D introduces evidence that could warrant reinstating

Mixed Law Flashcards (24 decks)

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