Con Crim Pro

Question 1

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

Answer 1

NO, only CRIMINAL liability

Question 2

May judge decide facts that expose D to greater punishment?

Answer 2

NO, only jury can decide aggravating circumstances

Question 3

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

Answer 3

yes, so long as not prompted by police

Question 4

Must attorney advance all legitimate legal claims requested by client?

Answer 4

NO, he may use professional judgment to decide

Question 5

Is exclusion based on race in grand jury permissible?

Answer 5

No, impermissible EPC violation

Question 6

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

Answer 6

Reasonable suspicion

Question 7

May police search non-named parties while executing warrant?

Answer 7

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

Question 8

Does inmate have reasonable expectation of privacy in his cell?

Answer 8

NO

Question 9

Is questioning at a police station always an interrogation?

Answer 9

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

Question 10

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

Answer 10

Yes, barring limitations/public policy issues

Question 11

Can mandatory presumptions against D be included in jury instructions?

Answer 11

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

Question 12

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

Answer 12

Yes, no privacy expectations

Question 13

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

Answer 13

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

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

Question 14

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

Answer 14

YES, can apply to evidence that police are aware of

Question 15

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

Answer 15

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

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

Question 16

Can states create IQ cutoff to require finding of competence?

Answer 16

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

Question 17

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

Answer 17

Usually NO (need totality of circumstances argument)

Usually better bet for answer is lack of Miranda

Question 18

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?

Answer 18

YES, may force door/window open to enter

Question 19

Does derivative-use immunity apply to subsequent civil proceedings?

Answer 19

No, only subsequent CRIMINAL proceedings

Question 20

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

Answer 20

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

Question 21

Exceptions when witness CANNOT be excluded from courtroom?

Answer 21

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

Question 22

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

Answer 22

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

Question 23

Can non-police execute administrative warrants?

Answer 23

Yes, other govt officers like firefighters

Question 24

When does undercover police investigation violate D’s rights?

Answer 24

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

Question 25

What is minimum number of jurors in criminal trial?

Answer 25

6

Question 26

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

Answer 26

Rarely--usually in province of JURY BUT may impose sentence higher penalty on basis of PRIOR CONVICTION

Question 27

Dual Sovereignty Doctrine

Answer 27

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

Question 28

Is testimony given under grant of immunity coerced?

Answer 28

YES, therefore involuntary

Question 29

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

Answer 29

NO, neither for impeachment nor substantive evidence

Question 30

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

Answer 30

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

Question 31

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

Answer 31

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

Question 32

When is right to counsel required at probation revocation hearing?

Answer 32

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

Question 33

Does defendant have REAP in bank records?

Answer 33

No, and thus NO warrant required for police to obtain

Question 34

Does 5A privilege apply to custodian of corporate records?

Answer 34

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

Question 35

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

Answer 35

VACATE--this is DP violation Okay to have harsher penalty during retrial, but ONLY IF not as punishment for exercising rights

Question 36

What is standard for evaluating if self-incrimination possible?

Answer 36

If there is REASONABLE POSSIBILITY that witness could incriminate self (civil or criminal trial)

Question 37

When is a conviction automatically reverseable due to IAC?

Answer 37

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)

Question 38

What date does right to speedy trial attach?

Answer 38

Date of CHARGING

Question 39

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

Answer 39

NO, only to impeach if he testifies

Question 40

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

Answer 40

NO, NEVER USABLE!!

Question 41

When is character admissible to show propensity in civil case?

Answer 41

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

Question 42

Who may issue habeas writs for people in federal custody?

Answer 42

ONLY federal courts (State court prohibited due to supremacy of federal courts)

Question 43

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

Answer 43

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

Question 44

When does emergency aid exigent circumstances apply?

Answer 44

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

Question 45

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

Answer 45

No, EXCEPT FOR immigration consequences

Question 46

Can reasonable suspicion establish exigent circumstances?

Answer 46

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

Question 47

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

Answer 47

YES, records of business for criminal enterprises are business records STILL need someone with personal knowledge to authenticate

Question 48

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

Answer 48

NO, unless he is arrested or has been restrained

Question 49

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

Answer 49

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

Question 50

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?

Answer 50

NO, this circumvents purpose of Miranda

Question 51

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

Answer 51

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

Question 52

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

Answer 52

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

Question 53

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

Answer 53

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

Question 54

Reversible error

Answer 54

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

Question 55

Structural error

Answer 55

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

Question 56

Requirement for waiving right to counsel

Answer 56

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

Question 57

Must officer Mirandize person immediately upon arrest?

Answer 57

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)

Question 58

Can a mentally ill person waive Miranda rights?

Answer 58

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

Question 59

Does due process apply to affirmative defenses?

Answer 59

NO

Question 60

Can state law eliminate affirmative defenses?

Answer 60

YES (e.g. insanity)

Question 61

Affirmative defenses

Answer 61

DINED Duress Insanity Necessity Entrapment Defense of property/persons

Question 62

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?

Answer 62

YES

Question 63

Are Miranda warnings needed to question suspect during Terry stop?

Answer 63

NO, so long as brief

Question 64

Is presence in high crime area enough for reasonable suspicion?

Answer 64

NO, police cannot seize someone on this basis

Question 65

Bilateral approach to conspiracy

Answer 65

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

Question 66

Is a porch curtilage?

Answer 66

YES

Question 67

Is a drug dog in curtilage illegal search?

Answer 67

YES

Question 68

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

Answer 68

NO, NOT if in plain view

Question 69

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

Answer 69

Yes, but ONLY IF USE and DERIVATIVE USE immunity provided (do not need to provide full transactional immunity)

Question 70

Is greenhouse in curtilage? Is warrant needed?

Answer 70

LIKELY YES CANNOT search without warrant

Question 71

Does automobile exception warrant apply during sobriety checkpoints?

Answer 71

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

Question 72

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

Answer 72

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

Question 73

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

Answer 73

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

Question 74

Is a cheek swab a search?

Answer 74

YES, but permissible if pursuant to arrest with PC

Question 75

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?

Answer 75

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