Crim L - 6A Flashcards
6A Generally
Prevents elicitation of incriminating statements by government after formal charge
When does D have right to counsel?
At critical stages of prosecution
E.g.
Post-indictment interrogation and lineup
Guilty plea
Does rt to counsel apply at investigatory stages?
No E.g.
Pre-charge-lineup
Photo ID
Body sampling
Parole/probation hearing
UNLESS BF by police
Is Rt to counsel offense-specific?
Yes. D can be questioned on an unrelated charge.
Does violation of Right to counsel require reversal?
Only at trial.
For non-trial denials of counsel, apply harmless error test.
What is required for D’s waiver of right to counsel?
D’s knowing and intelligent relinquishment of right, considering TOTC (D’s character, circumstances)
What is required for D to defend self pro se?
Waiver and
Trial judge’s discretion that D is competent.
During pre trial ID (e.g. post-indictment lineup/showup), when does RT to counsel apply?
When D is visible to witnesses
During pretrial ID, when is lineup, show up or photo ID inadmissible as denying 5A/14A due process?
If it was unnecessarily suggestive + there is substantial likelihood of misidentification
What is unnecessarily subjective - 1 of 2 factors for when pretrial ID is inadmissible as denying 5A/14A due process
Suggestive distinguishing features (e.g. suspect of one race in line up w/ other races, witness’s opportunity to see D at the scene, witness’s certainty, time elapsed since crime)
Exceptions: necessary under circumstances or ID is reliable based on TOTC
TOTC factors - for when ID is reliable such that it does not deny 5A/14A due process
Opportunity to view D at scene
Ease with which witness can ID D
Prior misidentifications
Duty to disclose exculpatory evidence
P must disclose evidence that is favorable to D and material (reasonable probability of different outcome)
Failure to disclose violates DPC and is grounds for reversing a conviction
What must be shown to claim ineffective assistance?
Deficient performance: Show particular acts/omissions reasonably competent practitioner would not make
Actual prejudice: Reasonable probability (20-25%) that the result would have been different
When is it a 6A violation to represent more than one D?
When a conflict of interest jeopardizes rights of any co-D or adversely affects the attorney’s performance (burden on D to show the conflict’s adverse effect)
When is right to self-representation available to D?
As long as there is a voluntary waiver of of rt to counsel at trial by D
Judge must consider D’s waiver to be knowing + intelligent and D competent to proceed pro se
Exception: D does not have right to self-rep on appeal.
Right to speedy trial
Attaches under 6A once D arrested or charged
Remedy for violation is dismissal of case.
Factors when there is violation of right to speedy trial
Unreasonable length of delay (e.g. 1 year)
Reason for delay (no due diligence by P)
Where D asserted right
Prejudice to D (e.g. destruction of evidence, oppressive incarceration)
Right to jury trial - when does it apply
Serious offenses only (i.e. if imprisonment on more than 6 months is authorized)
Right to jury trial - requirements for jury
Minimum number of jurors is permissible is 6
Jury verdicts must be unanimous in federal & state courts
D has right to select jury from representative cross-section of community BUT not to fair cross-section jury
Requirements from guilty pleas
Must be voluntary + intelligent
Judge must ensure on the record that D understands
(1) nature of charge and critical elements,
(2) maximum and minimum possible penalties
(3) the right not to plead guilty
(4) that by pleading guilty that he waives the right to trial
Remedy for not meeting requirements for guilty pleas
Withdraw plea and plead anew
6A right to confront witnesses re: testimonial statement by unavailable witness
Any prior out of of court 1) testimonial statement by an 2) unavailable witness cannot be used against D in criminal trial unless D had 3) prior opportunity to cross-examine the witness at the time the statement was made
6A right to confront witness re: testimonial statement
One used against an accused in criminal prosecution, solicited by the state for primary purpose to establish or prove past events potentially relevant to later prosecution
6A right to confront witnesses: co-confession prohibition
If 2+ persons are tried together and one co-D gave a confession that implicates D, the right of confrontation prohibits use of that statement, even where it overlaps with D’s own confession
6A right to confront witnesses co-confession admissible
If 2+ persons are tried together and one co-D gave confession that implicates D, that statement is admissible if all portions referring to D are eliminated
OR confessing co-D takes the stand and subjects himself to cross-examination as to truth/falsity of statement,
OR confession is used to rebut D’s argument that his confession was obtained involuntarily.
6A Right to confront witnesses: when no violation
To remove disruptive D or where absence of confrontation serves an important public purpose
8A generally
Prohibits cruel and unusual punishment (does not apply to civil fines)
Applies to penalties that are grossly disproportionate to the seriousness of the offense committed.
Death penalty: what is prohibited under 8A
Automatic death penalty
If DP statute does not give D chance to present mitigating C
If jury is not allowed to consider mitigating C, impact on V’s family
DP for minors @ time of offense
Mentally disabled, legally insane @time of execution
8A: When may DP be imposed - murder
Murder: may be imposed for murder under a statute that gives judge or jury reasonable discretion, full information concerning D and guidance in making the decision. Statute must not be vague and must allow sentencing body (jury) to consider all mitigating evidence
8A: When may DP be imposed - felony murder
Felony murder: if D was a major participant of felony murder & acted w reckless indifference to human life
8A: Constitutional right to bail? When can it be denied?
No such right. If it will be ineffective to secure the presence of D at trial, it may be denied.
