Constitutional Criminal Procedure

Question 1

Constitutional Rights not binding on States

Answer 1

Right to Indictment by Grand Jury

Prohibition Against Excessive Bail

Question 2

Exclusionary Rule

Answer 2

• Remedy for a violation of your constitutional rights.
• Prohibits introduction of evidence in violation of a defendant’s Fourth, Fifth or Sixth Amendment Rights (exclude/suppress)
• Rationale: Deter

Question 3

Scope of Exclusionary Rule

Answer 3

• Fruit of the Poisonous Tree: Must exclude illegally obtained evidence, but also all evidence obtained or derived from exploitation of that evidence.
• Limitation: Fruits derived from statements in violation of Miranda
• Exception: Breaking the Causal Chain
  1. Independent Source: Admissible if prosecution can show that it was obtained from a source independent of the original illegality
  2. Intervening Act of Free Will by the Defendant
  3. Inevitable Discovery
  4. Live Witness Testimony
• Limitations on the Exclusionary Rule
  1. Inapplicable in Parole Revocation Proceedings
  2. Good Faith Exception
  a. Do not exclude evidence when the police arrest or search someone in good faith, thinking they are acting in pursuant to a valid search warrant and the warrant later turns out to be invalid
  b. Exceptions to GF Rule
  i. Affidavit underlying the warrant is so lacking in probable cause that no reasonable police officer would have relied on it
  ii. The warrant is defective on its face
  iii. The police officer or government official obtaining the warrant lied or mislead the magistrate
  iv. The magistrate has wholly abandoned his judicial role
  3. Knock and Announce Rule Violations
  a. Exclusion is not available remedy for violations of the knock and announce rule pertaining to the execution of a warrant
• Can use excluded evidence for impeachment purposes (Voluntary confession in violations of Miranda and Fruit of Illegal Searches)

Question 4

Harmless Error Test and the Exclusionary Rule

Answer 4

• A conviction will not be overturned merely because improperly obtained evidence was admitted at trial; the harmless error test applies.

The government bears the burden of showing beyond a reasonable doubt that the admission was harmless.

Question 5

Enforcing the Exclusionary Rule

Answer 5

• File a Motion to Suppress
  1. Judge will make determination
  2. If the judge lets the evidence in, the jury can reconsider the admissibility of evidence
• Government bears burden of establishing admissibly by preponderance
• Defendant has a right to testify at a suppression hearing without his testimony being admitted against him at trial on issue of guilt unless for impeachment purposes

Question 6

Fourth Amendment

Answer 6

• People should be free in their persons from unreasonable searches and seizures
  i. Search is a governmental intrusion into an area where a person has a reasonable and justifiable expectation of privacy
  ii. Seizure is the exercise of government over a person or thing
  iii. Reasonableness
  1. Depends on circumstances
  2. Typically, a warrant is required for a search or seizure to be reasonable, but there are exceptions

Question 7

What constitutes a seizure of a person?

Answer 7

A reasonable person believes that she is not free to leave.

This requires a physical application of force by the officer or a submission to the officer’s show of force.

It is not enough that the officer merely ordered the person to stop.

Question 8

Arrest

Answer 8

• Probable Cause Required
  i. Present when, at the time of arrest, the officer has within her knowledge reasonably trustworthy facts and circumstances sufficient to warrant a reasonably prudent person to believe that the suspect has committed or is committing a crime
  ii. Mistaken Offense: An arrest is not invalid merely because the grounds stated for the arrest at the time it was made are erroneous, as long as the officers, had other grounds on which there was probably cause for the arrest
• Warrant Requirement
  i. Police generally need not obtain a warrant before arresting a person in a public place
  1. Felony: reasonable grounds to believe
  2. Misdemeanor: committed in her presence
  ii. Exception: Home Arrests Require Warrants except in emergency
  1. Burden on the government to demonstrate exigent circumstances to overcome the presumption that a warrantless search of a home is presumed unreasonable
• Effect of Invalid Arrest
  i. By itself, has no impact on subsequent criminal prosecution.
  ii. Evidence that is a fruit of the unlawful arrest may not be used against the defendant because of the exclusionary rule
  1. Show causation

Question 9

Automobile Stops

Answer 9

• Constitutes a Seizure for Fourth Amendment purposes for Driver and everyone in car
• Reasonable suspicion to believe that a law has been violated
  1. Exception
  a. Road Blocks without individualized suspicion as long as
  (1) based on neutral, articulable standard and
  (2) be designated to serve purposes closely related to a particular problem pertaining to automobiles and their mobility
  i. Exception: Police can set up a roadblock for information
• Police can Order Occupants out and if they reasonably believe a person is armed and dangerous they can frisk the detainee and the car
• Pretext Stops
  1. If an officer has probable cause to believe that a traffic law has been violated, the officer may stop the suspect’s car, even if the officer’s ulterior motive is to investigate whether some other law has been violated

Question 10

Investigatory (Stock and Frisk)

Answer 10

• Police have authority to briefly detain a person for investigative purposes even if they lack probable cause.
  1. Must have reasonable suspicion supported by particularly facts of criminal activity or involvement in a completed crime
  a. Reasonable Suspicion is based on totality of. circumstances, requires something more than a hunch but not PC
  b. Source of Suspicion: Anything reasonably reliable, informant’s tips (must be accompanied by indicia of reliability sufficient to make the officer’s suspicion reasonable)
• Duration and Scope
  1. Relatively Brief and no longer than necessary to conduct a limited investigation to verify the officer’s suspicions a. Can ask for identification
  2. If develops probable cause, he can arrest

Question 11

Other Detentions

Answer 11

• Investigatory (Stop and Frisks)
• Automobile Stops
• If the police have probable cause to believe that a suspect has hidden drugs in his house, they may, for a reasonable time, prohibit him from going into the house unaccompanied so they can prevent him from destroying drugs while they obtain a search warrant
• Occupants of Premises being searched may be detained pursuant to execution of a valid warrant
• Police Officers must have full probable cause for arrest to bring a suspect to the station Grand Jury appearances are not seizures
• Deadly Force is a seizure and must be used in a reasonable manner (Probable cause to believe you are armed and dangerous)

Question 12

Valid Evidentiary Search and Seizure Under the Forth Amendment

Answer 12

• Must be reasonable to be valid under the 4th Amendment, usually requires a warrant
• Approach
  1. Does the defendant have a Fourth Amendment Right?
  a. Was there governmental conduct?
  i. 4th Amendment protects against governmental conduct only
  ii. Includes publicly paid police and those citizens acting in their direction
  b. Did the defendant have a reasonable expectation of privacy?
  i. With respect to the place searched and item seized
  ii. LA Supreme Court: anyone whose rights are affected by police misconduct can sue the police. No standing required.
  iii. Things held out to the public
  1. GR: No expectation of privacy
  i. Luggage – Smell, no, physical search yes.
  2. Dog Sniffs at Traffic Stops
  3. Open Fields Doctrine
  4. Fly-Overs
  2. Did the police have a valid warrant?
  3. Did they make a valid warrantless search and seizure?

Question 13

Dog Sniffs at Traffic Stops

Answer 13

Does not implicate the Fourth Amendment if police have lawfully stopped a car and doesn’t take longer than writing a ticket

Question 14

Open Fields Doctrine

Answer 14

Areas outside the curtilage (dwelling house and outbuildings) are subject to police entry and search and are unprotected by the Fourth Amendment (held open to the public)

i. Even with posted signs and barbed wire

Question 15

Fly-Overs

Answer 15

• Police may fly over to observe with the naked eye but technologically enhanced searches of homes constitutes a search

Question 16

Requirements for a Valid Warrant

Answer 16

• Issued by a neutral and detached magistrate
• Be based on probable cause established from facts submitted to the magistrate by a government agent upon oath or affirmation
  1. Probable Cause to believe that seizable evidence will be found on the premises or persons
  2. Officers must submit to the magistrate an affidavit containing sufficient facts and circumstances to enable the magistrate to make an independent evaluation of probable cause
  a. Use of Informers: Based on totality of Circumstances
  i. Reliability, Credibility and Basis of Knowledge
  ii. Identity need not be given
  3. Going Behind the Face of the Affidavit
  a. When the defendant attacks the validity of a search warrant, the Fourth Amendment permits her to contest the validity of some of the assertions in the affidavit upon which the warrant was issued
  b. Three Requirements to Invalidate (all three must be established)
  i. A false statement by the affiant
  ii. The affiant intentionally or recklessly included that false statement
  iii. The false statement was material to the finding of probable cause
  c. Even if a warrant was invalid, if the police obtained evidence in reasonable reliance on a facially valid warrant may be used by the prosecution despite an ultimate finding that the warrant was not supported by probable cause
• Particularly describe the place to be searched and the items to be seized
  1. Cannot be described in underlying affidavit, must be in warrant
  2. Search of Third Party premises permissible

Question 17

Execution of a Warrant

Answer 17

• Must be Executed by the Police
  1. When executing a warrant in a home, generally must knock and announce
• Can seize unspecific property whether or not specified in the warrant
• A search warrant does not authorize the police to search persons found on the premises who are not named in the warrant. However, if they have probable cause to arrest a person, they may search her incident to the arrest
• Can detain occupants while search is conducted

Question 18

Exceptions to the Warrant Requirement

Answer 18

• Search Incident to a Lawful Arrest (based on probable cause)
  1. If the arrest violates the constitution, then search incident to that arrest will violate the Constitution
  2. Any arrest is sufficient even if invalid under state law, as long as it is based on probable case
  a. For traffic violations, if the suspect is not arrested, there can be no search incident to arrest even if the law gives the option of arresting a suspect or issuing a citation
  3. Scope
  a. Police may search the person and your wingspan (any area where you may be able to grab some evidence). this follows you as you move. Can also make a protective sweep beyond the wingspan if they believe accomplices may be present
  b. Automobiles
  i. After arresting the occupant of a car, the police may search the interior of the auto incident to the arrest if at the time of search: The arrestee is unsecured and still make 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
  c. Must be contemporaneous in time and place

Question 19

Automobile Exception to Warrant Requirement

Answer 19

• If the police have probable cause to believe that a vehicle contains evidence of a crime, they may search a car without a warrant
• Scope
  1. Entire vehicle and all containers within the vehicle that might contain the object for which they are searching including passenger’s belongings
  2. If the police only have probable cause to search a container placed in a vehicle, they may search that container, but the search may not extend to other parts of the car
• Applies to anything that has attributes of mobility and a lesser expectation of privacy similar to a car
• If police are not justified in making a warrantless search of a vehicle under this exception, they may tow it and search it alter

Question 20

Plain View Exception to Warrant Requirement

Answer 20

• Legitimately on the premises
• Discover Evidence
• Such evidence in plain view and
• Have probably cause to believe that item is evidence
• Inadvertence Not Required

Question 21

Consent Exception to the Warrant Requirement

Answer 21

• Voluntary and Intelligent consent is required
• Knowledge of a right to withhold consent is not a prerequisite
• An officer’s false announcement that she has a warrant negates the possibility of consent
• Authority
  1. Any person with an apparent equal right to use or occupy
  a. Search is valid even if it turns out that the person consenting to the search did not actually have such right, as long as the police reasonably believed that the person had authority
  b. Limitation: Where Party is present and objects
  c. A parent generally has authority to consent to a search of a child’s room as long as the parent has access to the room
• Scope of Search limited by Scope on Consent

Question 22

Stop and Frisk Exception to Warrant Requirement

Answer 22

• If the officer also reasonably believes that the person may be armed and presently dangerous, she may conduct a protective frisk
• Scope
  1. Generally limited to patdown of outer clothing but may reach into areas if have information that a weapon might be there
• Automobiles
  1. IF the officer believes that the car is armed or the person is armed, can frisk the car a. Limited to those areas in which a weapon may be placed
• Must be reasonable under the circumstances
• Admissibility of Evidence
  1. The officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its plain feel is a weapon or contraband
  2. Will be admissible if not weapon
• Hot Pursuit, Evanescent Evidence, and Other Emergencies
  1. No General Emergency Exception
  2. Hot Pursuit Exception
  a. Police officers in hot pursuit of a fleeing felon may make a warrantless search and seizure
  i. Scope: As broad as may reasonably be necessary to prevent the suspect from resisting or escaping
  ii. May pursue into private dwellings
  3. Evanescent: Evidence likely to disappear
  4. Other Emergencies: Totality of Circumstances necessitate

Question 23

Administrative Searches Exception to the Warrant Requirement

Answer 23

• GR: Inspectors must have a warrant for searches of private residence and commercial businesses. However, these warrants can be issued on less than probable cause (pursuant to some neutral enforcement plan)
• Exceptions
  1. Contaminated Food
  2. Highly Regulated Industries
  3. Inventory Searches of an arrestee’s personal belongings or entire vehicle and containers within
  4. Search of Airline Passengers
  5. Public School Searches
  a. Reasonable grounds for search are necessary
  i. Moderate Chance of finding evidence of wrongdoing
  ii. Methods used reasonably related to objectives of the search
  iii. Not excessively intrusive
  6. Parolees
  7. Government Employees Desk and Files
  8. Drug Testing
  a. Justified by Special Needs beyond the general interest of law enforcement or a warrant

Question 24

Methods of Obtaining Evidence that Shock the Conscience

Answer 24

• Due Process of law requires that state criminal prosecutions be conducted in a manner that does not offend the sense of justice inherent in due process. Evidence obtained in violation will be inadmissible
• Searches of the Body
  1. Reasonableness of the search depends on weighing society’s needs for the evidence against the magnitude of the intrusion on the individual
  2. Blood Tests are reasonable intrusions while surgery is unreasonable

Question 25

Confessions

Answer 25

• The 14th Amendment protects against involuntary confessions
  i. DPC requires confession to be voluntary to be admissible
  ii. Voluntariness is assessed by looking at the totality of the circumstances (age/education/mental/physical/ duration/manner)
  iii. Must be Official compulsion
  iv. Harmless Error Applies
  v. Can Appeal to the jury (introduce evidence to cast doubt on its credibility)

Question 26

Sixth Amendment Right to Counsel Approach

Answer 26

• In all criminal prosecutions, the defendant has a right to the assistance of counsel. It applies to all critical stages of a criminal prosecution after formal proceedings have begun.
  1. Right begins when formal proceedings have been initiated against you (bill of indictment)
• The Right is offense specific
  1. Two crimes are considered different offenses if each requires proof of an additional element that the other crime does not require
• Waiver: Knowing, voluntary and intelligent and does not require presence of counsel, at least if counsel has not actually been requested by the defendant but rather was appointed by the court
• Inadmissible evidence may be used to impeach

Question 27

Fifth Amendment Privilege Against Compelled Self-Incrimination

Answer 27

• When a person is subjected to custodial interrogation, the police officer must give the Miranda warnings to the interview
  1. He has the right to remain silent
  2. Anything he says he can be used against him in court
  3. He has the right to the presence of an attorney
  4. If he cannot afford an attorney, one will be appointed for him if he so desires
  a. Simply have to be given, not necessarily verbatim, but in substance
  b. Prerequisite to the admissibility of any statement
• When required
  1. Must be in custody prior to interrogation
  a. Custody depends on whether the freedom of action is denied in a significant way. The more a setting resembles a traditional arrest, the more likely the court will consider it to be custody
  i. Objective test
  b. Voluntary detention does not equal custody
  c. Traffic stops generally not custody
  2. Governmental Conduct Required
  3. Interrogation Requirement
  a. Express Questioning, but to any words or action on the part of the police that the police should know are reasonably likely to incriminating response from the subject
  b. Does not apply to spontaneous statements not made in response to interrogation although the officers must give warnings before any follow up questions
  c. Does not apply to routine booking questions
• Waiver
  a. A suspect may waive his rights
  b. Government must show by a preponderance of the evidence that the waiver was knowing, voluntary, and intelligent (totality of circumstances)
  c. Request for an Attorney must be specific
  d. Police Deception to Defendant’s lawyer is okay
• Applies to both inculpatory and exculpatory statements
• Limits –> Grand Jury Hearings
• The accused may terminate police interrogation by invoking either the right to remain silent or the right to counsel
  1. If the accused says “I don’t want to talk to you” (His Right to Remain Silent)
  a. All questioning related to that crime must stop
  b. Only can resume questioning if they scrupulously honor request
  i. At least, may not badger the defendant into talking and must wait a significant time before reinitiating time
  2. IF the accused invokes his right to counsel
  a. All questioning must cease until the accused is provided with an attorney or initiates questioning himself
  i. Police may not resume questioning about ANY crime
  b. Applies whenever in Custodial Interrogation and is not offense specific
  c. Request must be unambiguous and specific
  d. One requested, counsel must be present at interrogation or defendant waives his right by initiating
  e. Statements obtained in violation may be used to impeach defendant’s trial testimony

Question 28

Effect of Violation of Confession Rules

Answer 28

• Inadmissible at Trial
• Can use to impeach, except for involuntary confession cannot be used to impeach
• Harmless Error Applies
• Question First, Warn Later
  1. Generally, Inadmissible
  2. Subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent
• Non-testimonial Fruits of an unwarned confession, the evidence will be suppressed if the failure was purposeful, but if the failure was not, the evidence will not be suppressed
• Public Safety Exception
  i. If police interrogation is reasonably prompted by concern for public safety, responses may be used in court, even though the accused was in custody and Miranda warnings are not given

Question 29

Pre-Trial Identification (Line-Ups/Show-ups/Photo ID )

Answer 29

• Purpose of all the rules is to ensure that when the witness identifies the person at trial, she is identifying the person who committee the crime and not merely the person whom she has previously seen at the police station
• Substantive Bases for Attack
  i. 6th Amendment Right to Counsel
  1. A suspect has a right to presence of an attorney at any post charge lineup or show up
  2. Does not apply to Photo-I.D. or Taking physical evidence
  ii. Due Process Clause (Pre-Charge Identifications)
  1. Can attack any identification as denying due process when the identification is unnecessarily suggestive and there is a substantive likelihood of misidentification. Both must be met
• Remedy
  i. Exclusion of out of court identification
  ii. Exclusion of in-court identification (unless it has an independent source) if out of court identification procedure tainted the in court identification
• No Right to Line up

Question 30

Pre-Trial Procedures

Answer 30

• Defendant has a fourth amendment right to a Preliminary Hearings to Determine Probable Cause to Detain (Gerstein Hearings)
• Defendants have a right to bail in all but capital cases
• 5th Amendment gives right to Grand Jury, does not apply to state law
• Speedy Trial
  i. If the state takes long to bring you to trial without reason for delay and it has caused you some prejudice, then you may be able to have the indictment against you dismissed (totality of circumstances) attaches upon arrest or charging

Question 31

Prosecutorial Duty to Disclose Exculpatory Information and Notice of Defenses

Answer 31

• Prosecutor has a constitutional duty to disclose to the defense evidence that is material, exculpatory or would mitigate punishment. Failure violates Due Process and is a ground for reversing a conviction
  1. Evidence must be favorable to defendant and prejudice has resulted (reasonable probability that result would have been different)

Question 32

Competency to Stand Trial

Answer 32

Insanity –> turns upon a D’s mental condition at the time of the crime (defense to the criminal charge)

Incompetency –> D’s mental condition at the time of trial (bar to trial, can later be tried of regain competency)

• Mentally impaired or handicapped such that he should not get death penalty

Test: If the defendant lacks the ability to understand the charges and proceedings or he lacks ability to consult with her lawyer, then Due Process prohibits the proceedings from going forward

• Can Force Cure on them
• Due Process may require a change of venue because of pre trial publicity

Question 33

Trial

Answer 33

• 6th and 14th Amendment guarantee the right to a public trial.
  i. Applies to preliminary and suppression hearings
  ii. Press and Public have a right under the first amendment to attend trial
  iii. Right to an unbiased judge who has no financial interest in a case
  iv. In a jury trial, due process requires that the defendant be given civilian clothing

Question 34

Right to Trial by Jury

Answer 34

• 6th Amendment and it has been applied to the states
• Only for Serious Offenses (No Juvenile Delinquency or Petty Offenses)
  1. Imprisonment for more than 6 months authorized
  2. Aggregation of Petty Offenses in a single proceeding does not give you a right to jury
  3. Contempt
  a. None for Civil
  b. Criminal: Actual sentence more than 6 months gives you a right to trial by jury
• Number and Unanimity of Jurors
  1. No Right to Jury of 12, but there must be at least six jurors
  2. No absolute right to a unanimous verdict

Question 35

Right to Venire Selected from Representative Cross Section of Community

Answer 35

• Use of Peremptory Challenges for Racial and Gender Based Discrimination
  a. Under Batson, Courts cannot allow any party to strike any jurors on account of race or gender
• Three Steps
  1. Defendant must show facts or circumstances that raise an inferences that exclusion is based on race or gender
  2. If such a showing is made, prosecutor must come forward with a race neutral explanation
  3. Judge then determines if genuine reason for striking the juror or merely pretext

Question 36

Right to Impartial Jury

Answer 36

• Right to Questioning on Racial Bias
• Juror Opposition to Death Penalty
  a. If a juror cannot consider imposing a sentence of death, they will be stricken
• Juror Favoring Death Penalty will also be stricken
  a. the key inquiry is if they can follow the law

Question 37

Sentence Enhancement

Answer 37

If the substantive law provides that a sentence may be increased beyond a statutory max for a crime if additional facts are proved, proof of facts must be submitted to the jury and proved beyond a reasonable doubt

Question 38

Right to Counsel

Answer 38

• The 6th Amendment Right to Counsel applies at all critical stages of a prosecution after formal proceedings have begun
• Remedy: Failure to supply results in automatic reversal of the conviction
• However, a defendant has a right to represent himself AT TRIAL as long as his waiver is knowing and intelligent and he is competent to proceed pro se.
• Effective Assistance of Counsel
  1. Law presumes that lawyers act effectively; however, if a defendant can prove after the fact that his lawyer’s performance was deficient and but for such deficiency the result of the proceeding would have been different then his conviction will be reversed
  2. Entitled to Effective lawyer at all critical stages of proceedings
  3. Circumstances not constituting ineffective assistance (trial tactics)
• Conflict of Interest
  1. Joint representation is not per se invalid. However, if an attorney advises the trial court of a resulting conflict of interest at or before trial, and the court refuses to appoint separate counsel, the defendant is entitled to automatic reversal.
  a. No Right to Join Representation (Trial Court can limit to avoid potential or actual conflicts of interest)
  2. If the defendant does not object, the defendant must show the attorney actively represented conflicting interests and thereby prejudiced the defendant

Question 39

Right to Confront Witnesses

Answer 39

• The 6th amendment grants to the defendant in a criminal prosecution the right to confront adverse witnesses. Rights include
  1. The fact finder and the defendant observe the demeanor of the testifying witness and
  2. The defendant has the opportunity to cross examine any witness testifying against him
• Not absolute
  1. Prevention such confrontation serves an important public purpose
  2. Disruptive Defendant
  3. Voluntarily Leaving Courtroom
• Introduction of Co-Defendant’s Confession
  1. General Rule: If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits the use of that statement, even with instructions of the jury to consider it only as going to the guilty of the confessing defendant. A co- defendant’s confession is inadmissible even when it interlocks with the defendant’s own confession, which is admitted
  a. Solved: By severance for trial. Can be introduced against him at his trial, but not against you
  b. Exceptions
  i. All portions referring to other defendants can be eliminated, but redaction may not be so obvious that it indicates you
  ii. Confessing defendant takes the stand
  iii. Confession used to rebut defendant’s claim that his confession was obtained coercively

Question 40

Prior Testimonial Statements of Unavailable Witness

Answer 40

• Under the Confession Clause, prior testimonial evidence (statements made at prior judicial proceedings) may not be admitted unless
  a. Declarant is unavailable and
  b. Defendant had an opportunity to cross examine the declarant at the time the statement was made
• What is Testimonial
  a. Testimony from preliminary hearing, grand jury hearing, former trial, or police interrogation
  b. Statements made in response to police interrogation are nontestimonial when made under circumstances indicating that the primary purpose of the interrogation is to enable the police to respond to an ongoing emergency, but statements are testimonial when there is no ongoing emergency and the primary purpose of the interrogation is to establish or prove past acts
  c. Results of forensic lab testing are testimonial and are not admissible unless the technician is unavailable and defendant had an opportunity to cross
• A defendant can be held to have forfeited a Confrontation Clause claim by wrongdoing when it was intended to keep the witness from testifying

Question 41

Burden of Proof

Answer 41

• Prosecutor must prove each and every element of the offense beyond a reasonable doubt
  i. Presumption of Innocence is built into the fact that prosecutors must prove
  ii. Due Process requires an opportunity for Defendants to prove innocence
  1. State cannot implement law that prohibits a defendant from introducing evidence that a third party committed the crime

Question 42

Guilty Pleas and Plea Bargaining

Answer 42

• A guilty plea is a waiver of the 6th Amendment to trial by Jury
  i. Must enter knowingly, voluntarily, and intelligently
  1. Court will address the defendant in open court on the record that you understand
  a. Nature of the charge and the elements
  b. The penalties upon conviction and plea
  c. Right not to plead guilty and waives the right to trial
  i. Attorney may inform defendant, not necessarily the judge
  2. Remedy
  a. Withdrawal of the plea
  3. Admission of guilty is not a constitutional prerequisite
  ii. Collateral Attack
  1. Plea Involuntary
  2. Lack of Jurisdiction
  3. Ineffective Assistance of Counsel
  4. Failure to Keep the Plea Bargain
• Plea Bargaining
  i. Treated as contracts (mutually enforceable)
  ii. Courts will require specific performance of promises made in plea bargains
  iii. Not involuntary simply because prosecutor threatening defendant with more serious charges
• Collateral Effects of Guilty Pleas
  i. Convictions can be used in other proceedings

Question 43

Constitutional Rights In relation to Sentencing and Punishment

Answer 43

• Right to Counsel
• No Right to confrontation and cross examination
  i. In capital criminal proceedings, must have more opportunity for confrontation
• Resentencing
  i. Record Must Show Reasons for Harsher Sentence after an appeal and re trial
• Substantive Rights in Regard to Punishment
  i. 8th Amendment prohibits a cruel and unusual punishment which includes a penalty grossly disproportionate to the nature of the offense
  1. No right to Comparison or Penalties in Similar Cases
  2. Death Penalty is not cruel and unusual punishment for murder and homicide type offenses as long as the statutory scheme gives reasonable discretion, full information, and guidance and jurors must be given the opportunity to consider mitigating circumstances
  a. Victim Impact Statements are admissible
  b. 8th Amendment prohibits the imposition of the death penalty for the crime of raping an adult woman or a child
  c. Death penalty may not be imposed for felony murder as long as you were engaging in conduct that exhibited reckless indifference for the value of human life
  d. It is cruel and usual punishment to give a mentally handicapped person the death penalty

Question 44

Constitutional Problems on Appeal

Answer 44

• First Appeal
  i. If an appeal is given, the defendant has a right to an attorney at the appeal. You do not have a right to appointed counsel at a discretionary cert petition
  ii. Attorney may withdraw if appeal frivolous but must submit a brief stating the reasons the conviction was appropriate
  iii. No Right to Self Representation on Appeal
  iv. Retroactivity: New Law must be applied to all cases on direct review

Question 45

Collateral Attacks Upon Conviction

Answer 45

• When can you come back to the district court and collaterally attack your sentence?
• Habeas Corpus Proceeding
  i. No Right to Appointed Counsel

Question 46

Double Jeopardy

Answer 46

• When Jeopardy Attaches
  i. Jury Trial: Jury Empanelled and Sworn In
  ii. Bench: First Witness is sworn
  iii. Once attaches, the defendant may not be retried for the same offense
• Exceptions
  i. Hung Jury
  ii. Mistrial for Manifest Necessity
• State may Retry a defendant who has successfully appealed a conviction, unless the ground for reversal was insufficient evidence to support a guilty verdict.
  i. Charges on Retrial
  1. Prohibits trying for more serious offense than what she was convicted
• Same Offense
  i. Two crimes do not constitute the same offense if each crime requires proof of an additional element that the other crime does not require, even though some of the same facts may be necessary to prove both crimes
  1. Do not constitute same offense: manslaughter and hit and run; reckless driving and drunk driving
  ii. Attachment of jeopardy for the greater offense bars retrial for lesser included offense
  iii. Attachment of jeopardy for a lesser included offense bars retrial for greater offense except that a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery
  iv. A prosecution for conspiracy is not barred
• Separate Sovereigns
  i. The constitutional prohibition against double jeopardy does not apply to trial by separate sovereigns (federal and state or state and state)

Question 47

Privilege Against Compelled Self Incrimination

Answer 47

• Only natural persons can take the fifth amendment against self incriminating testimony
  i. Applicable to the states
  ii. Applies to testimonial evidence, not physical evidence or documentary evidence
• True in any proceeding where you are being compelled by the state to testify and your testimony can incriminate you (civil included)
• Method
  i. Defendant has a right not to take the witness stand and prosecutor cannot comment on it
• Defense can ask for jury instruction that they should draw no adverse inference from his failure to testify
• Elimination of the Privilege
  i. Grant of Immunity by the State
  1. Can then force testimony
  2. Immunity can be merely “use and derivative use” immunity which means that they must promise you that they will neither use your statement against you nor evidence derived from your statement. This means they can get other evidence independent from your testimony and still prosecute it
  3. Can give transactional immunity
  4. Use of testimony by another sovereign prohibited
  ii. No privilege against compelled testimony Waiver
• By giving testimony, you have waived your right to remain silent and you are subject to cross