Con Crim Pro Flashcards
Does 5A privilege against self-incrimination apply to evidence generating civil or corporate liability?
NO, only CRIMINAL liability
May judge decide facts that expose D to greater punishment?
NO, only jury can decide aggravating circumstances
Is a spontaneous/volunteered statement after invoking right to counsel admissible?
yes, so long as not prompted by police
Must attorney advance all legitimate legal claims requested by client?
NO, he may use professional judgment to decide
Is exclusion based on race in grand jury permissible?
No, impermissible EPC violation
What level of suspicion is required by school officials to conduct search of student?
Reasonable suspicion
May police search non-named parties while executing warrant?
Yes, but only if there is INDEPENDENT JUSTIFICATION for the search
Does inmate have reasonable expectation of privacy in his cell?
NO
Is questioning at a police station always an interrogation?
No, if parties are informed that they are free to leave
Does a paying client have right to counsel of his choice?
Yes, barring limitations/public policy issues
Can mandatory presumptions against D be included in jury instructions?
NO, presumptions cannot be made in relation to any element of the charged crime
If open field is partially covered and is surrounded by thick forest, is it still open field for purposes of 4A?
Yes, no privacy expectations
Does 6A right to counsel attach if a jail sentence is possible?
No, only if the person is ACTUALLY given a jail sentence
(realistically this means counsel will be appointed whenever there is risk)
Does Brady (mandatory turnover of exculpatory evidence) apply to evidence that prosecution is not aware of?
YES, can apply to evidence that police are aware of
Does Brady penalize any failure to disclose exculpatory evidence regardless of actual prejudice?
Not necessarily–only if defendant shows DP rights have ACTUALLY been prejudiced by failure to disclose
Standard = favorable + material (reasonable probability of different outcome)
Can states create IQ cutoff to require finding of competence?
No, 8A prohibits states from making rules preventing a person from being found incompetent
If police approach someone with guns drawn and ask them an incriminating question, is this sufficient to establish that statement was involuntary?
Usually NO (need totality of circumstances argument)
Usually better bet for answer is lack of Miranda
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?
YES, may force door/window open to enter
Does derivative-use immunity apply to subsequent civil proceedings?
No, only subsequent CRIMINAL proceedings
When can a court order exclusion of a witness from the courtroom?
WHENEVER party requests, a court MUST exclude witnesses, unless an exception applies
Exceptions when witness CANNOT be excluded from courtroom?
Officer or employee of party that is NOT natural person (e.g. police officer in charge of investigating crime)
Once purpose of warrant is satisfied, may search be continued?
NO, if purpose is e.g. to ascertain cause of fire, once source is found, search must END
Can non-police execute administrative warrants?
Yes, other govt officers like firefighters
When does undercover police investigation violate D’s rights?
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
What is minimum number of jurors in criminal trial?
6
When may judge issue sentence related to finding of fact to increase penalty?
Rarely–usually in province of JURY
BUT may impose sentence higher penalty on basis of PRIOR CONVICTION
Dual Sovereignty Doctrine
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
Is testimony given under grant of immunity coerced?
YES, therefore involuntary
Can GJ testimony for which use and derivative use is given be used solely to impeach?
NO, neither for impeachment nor substantive evidence
When may civil litigants in fed court request jury trial + when must filing occur
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
Can a guilty verdict be challenged for being inconsistent with another verdict of same jury?
NO, acquittal of predicate offense does not mandate acquittal of related offense
When is right to counsel required at probation revocation hearing?
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
Does defendant have REAP in bank records?
No, and thus NO warrant required for police to obtain
Does 5A privilege apply to custodian of corporate records?
NO, even if docs would incriminate her personally, she must produce!
Remedy when judge imposes harsher sentence in retrial to punish exercising right to appeal?
VACATE–this is DP violation
Okay to have harsher penalty during retrial, but ONLY IF not as punishment for exercising rights
What is standard for evaluating if self-incrimination possible?
If there is REASONABLE POSSIBILITY that witness could incriminate self
(civil or criminal trial)
When is a conviction automatically reverseable due to IAC?
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)
What date does right to speedy trial attach?
Date of CHARGING
Can D’s past convictions be introduced at trial if he does NOT confess?
NO, only to impeach if he testifies
Can statement made during settlement negotiation be used to impeach if not used to prove validity of claim?
NO, NEVER USABLE!!
When is character admissible to show propensity in civil case?
ONLY for past sexual assault by D when claim based on sexual misconduct
Who may issue habeas writs for people in federal custody?
ONLY federal courts
(State court prohibited due to supremacy of federal courts)
If you are charged w murder, can statements by murdered person be admissible because you rendered them unavailable?
NO, unless you murdered them for PURPOSE of making them unavailable at trial (not just in normal course of murder)
When does emergency aid exigent circumstances apply?
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
Is counsel required to inform client about collateral consequences of conviction?
No, EXCEPT FOR immigration consequences
Can reasonable suspicion establish exigent circumstances?
NO, must have probable cause to believe exigent circumstances justify warrantless search
Does business records exception apply to business records made for illegal purpose?
YES, records of business for criminal enterprises are business records
STILL need someone with personal knowledge to authenticate
Is a parolee in custody when being questioned by his parole officer?
NO, unless he is arrested or has been restrained
If police violate 4A for person 1 and seize something improperly, which implicates Person 1’s co-defendant, may co-defendant move to suppress?
NO, he lacks standing, as he was not the party searched under 4A
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?
NO, this circumvents purpose of Miranda
Do students have REAP in items brought to public school campus?
YES, though school personnel only need “moderate chance”of finding contraband to conduct a search
If a question is about 6A right to counsel, is correct answer about Miranda?
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
What is standard to evaluate if a prosecutor comments on a defendant’s failure to testify?
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
Reversible error
When an error is sufficiently prejudicial to require that a case be reversed
Structural error
Error effecting entire framework of criminal trial and rendering it fundamentally unfair
Requirement for waiving right to counsel
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
Must officer Mirandize person immediately upon arrest?
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)
Can a mentally ill person waive Miranda rights?
YES, so long as waiver is WITHOUT police coercion, does not matter if it was due to mental illness
Does due process apply to affirmative defenses?
NO
Can state law eliminate affirmative defenses?
YES
(e.g. insanity)
Affirmative defenses
DINED
Duress
Insanity
Necessity
Entrapment
Defense of property/persons
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?
YES
Are Miranda warnings needed to question suspect during Terry stop?
NO, so long as brief
Is presence in high crime area enough for reasonable suspicion?
NO, police cannot seize someone on this basis
Bilateral approach to conspiracy
TWO or more persons entered agreement with INTENT to commit specific crime
Minority rule
Is a porch curtilage?
YES
Is a drug dog in curtilage illegal search?
YES
If item beyond scope of valid warrant is seized, is it excluded?
NO, NOT if in plain view
May grand jury compel production of testimonial item eg. diary?
Yes, but ONLY IF USE and DERIVATIVE USE immunity provided
(do not need to provide full transactional immunity)
Is greenhouse in curtilage? Is warrant needed?
LIKELY YES
CANNOT search without warrant
Does automobile exception warrant apply during sobriety checkpoints?
YES, if probable cause generated from e.g. smelling marijuana, can search entire car
If a person is acquitted of lesser included offense and then is charged with greater offense, does double jeopardy prohibit retrying ?
YES, CANNOT retry under Blockburger because need both charges to have different elements, NOT just one
Does failure to knock and announce constitute improper execution of arrest warrant?
YES, even though can still take seized fruits, arrest improper if knock and announce not executed
Is a cheek swab a search?
YES, but permissible if pursuant to arrest with PC
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?
Yes, IT IS acquittal and cannot be retried bc of double jeopardy, EVEN IF D introduces evidence that could warrant reinstating
