Crim pro

Question 1

4th A

Answer 1

No warrants shall issue, but upon probable cause, supported by Oath or affirmation

Question 2

5th A presentment

Answer 2

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury (felonies or infamous crimes get grandjuries unless waived)

Question 3

5th A double jeapoardy

Answer 3

Nor shall any person be subject for the same offense to be twice put in jeapoardy of life or limb.

Question 4

5th A privilege against self incrmiination

Answer 4

nor shall be compelled in any criminal case to be a witness against himself.

Question 5

5th A due process

Answer 5

nor be deprived of life, liberty, or property without due process of law

Question 6

6A speedy trial

Answer 6

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial

Question 7

6A jury

Answer 7

right to a speedy and public trial by an impartial jury.

Question 8

6A location of trial

Answer 8

in the State and district wherein the crime shall have been committed

Question 9

6A information

Answer 9

to be informed of the nature and cause of the accusation.

Question 10

6A confrontation clause

Answer 10

to be confronted with the witnesses against him.

Question 11

6A subpoena power

Answer 11

to have a compulsory process for obtaining witnesses in his favor

Question 12

6A assistance of counsel

Answer 12

And to have the assistance of counsel for his defense

Question 13

8 A

Answer 13

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted (think sentencing for punishments)

Question 14

14A

Answer 14

due process and equal protection

Question 15

Federal jx determined

Answer 15

military base, patents, copyrights, trade mark infringement, immigration, commerce between states (commerce clause), federal property, necessary and proper clause, DC, high seas, offenses against the laws of the US. (May be concurrent with state based on a statute).

Question 16

Venue in the constitution

Answer 16

Article III requires that “trial of all crimes…shall be held in the state where the said crimes shall have been committed”. 6A vicinage requirement requires the trial to be held in the “state and district wherein the crime shall have been committed”.

Question 17

Venue rule

Answer 17

In a continuing offense, a charge may be brought in the district in which the case was begun, continued, or completed. Prosecutors have a lot of discretion. (Rodriguez-Moreno was a continuing crime and venue was proper in each district).

Question 18

Change of Venue Rule 21(a) (prejudice rule)

Answer 18

Under rule 21(a), the court must grant a defendant’s motion to change venue if prejudice is so great against the defendant that the defendant cannot obtain a fair and impartial trial. It is very difficult for defendants to prove prejudice simply where there is a lot of negative press. See e.g. Tsnarnaeve; Skilling. But, the court may find sufficient prejudice if the negative media was in a small town where the local news is more impactful.

Question 19

Change of venue Rule 21(b) convenience and factors

Answer 19

A defendant may move to change venue and the court may transfer the proceeding, or one or more counts, for the convenience of the parties, any victim, and the witnesses, and in the interest of justice. Under Platt v. 3m, the court considers (1) location of the corporate D; (2) location of possible witnesses; (3) location of events likely to be in issue; (4) location of documents and records; (5) distruption of D’s business unless the case is transferred; (6) expense to the parties; (7) location of counsel; (8) relative accessibilty of place of trial; (9) docket condition ofdeach district or division involved; and (1) any other special elements which might affect the transfer.

Question 20

Hurtado v. California 1884

Answer 20

6A right to indictment by grand jury is not incorporated to the states through the 14th A. A prelim hearing in the states is sufficient as long as magistrate determines PC.

Question 21

Rule 5(1)(a) (unnecssary delay)

Answer 21

A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge or before a state or local judicial officer.

Question 22

Rule 5 rule application (Alvarez-Sanchez, Gerstein v. Pugh, Cty of Riverside)

Answer 22

For federal crimes, by statute if confession is taken more than 6 hours after arrest and before arraignment, it is inadmissible. Solely state crime confession is not limited by the 6 hrs if it is voluntary. Jury decides the weight to give the confession. (US v. Alvarez-Sanchez). Under Gerstein v. Pugh, the 4th A requires a timely judicial determination of PC as a prerequisite to detention where there is a significant pretrial restraint on liberty. (only applies if warrantless arrest). It does not require an adversary hearing and is not a critical stage. Under Cty of Riverside, if a state complies with Gerstein through judicial determination, it must occur within 48 hours. The only remedy for failing to do so is supression of statements, not dismissal.

Question 23

Rule 4 Complaint requirements

Answer 23

The complaint must include a written statement of the essential facts constituting the offense charged. It must be made under oath before a magistrate judge or, if none is reasonably available, before a state or local judicial officer.

Question 24

Vaugeness rule. (always consider both vagueness and rule of lenity)

Answer 24

Under Kolender, penal statutes must define the criminal offense with sufficient definiteness that ordinary people can udnerstand what conduct is prohibitied and in a manner that does not encourage arbitrary and discriminatory enforcement.

Question 25

Rule of lenity ( look at void for vagueness also)

Answer 25

When a statute is ambiguous, adopt the meaning that benefits the defendant. Ask (1) is the statute ambiguous? (2) if so, what are the plausible interpretations? (3) if the statutory construction has more than one plausible reading, lenity requires selecting the narrowest reading which tends to favor the D.

Question 26

Complaint notice requirement - lesser included offenses

Answer 26

Under California case People v. Barton, the jury must be instructed on lesser included offenses. Finding guilt on a lesser included offense does not violate Due process clause.

Question 27

Complaint requirements - Ex Post Facto

Answer 27

Ex post facto clause prohibits resurrection of a time-barred prosecution. (it would be permissible if the act was committed after the statute was enacted or SOL had not yet ran out.) Stogner v. California.

Question 28

Bail reform act of 1966

Answer 28

To ensure that all persons, regardless of financial statuts, shall not needlessly be detained pending their apperance to answer charges to testify in court.

Question 29

Bail and Detention rule (Bell v. Wolfish)

Answer 29

Under Stack v. Boyle, bail should not be set at an amount higher than reasonably calculated to fulfil the purpose of assuring D’s presence. There must be an individual assessment of the facts, otherwise the presumption of innocence loses its meaning. Bail may be denied all together if there are no factors to ensure presence or if they are a danger to the community though. Under Bell v. Wolfish, the 4th A does not bar pre-trial intrusive body searches or jail restrictison on ctonraband. But, conditions of pre-trial detention cannot punish people who have not been convicted. Rules must be reasonably related to a legitimete, nonpunitive government objectives without an express intent to punish.

Question 30

Rule 8 Joinder of Offenses

Answer 30

Indictment or information may charge a D in separate counts with 2 or more offenses if the offenses charged are of the same or similar character, based on the same act or transaction, or are connected with or constitute parts of a common scheme or plan. Very broad joinder - its the rule, not exception.

Question 31

Joinder of offenses rule (8) remedy

Answer 31

A case will be reversed if offenses are misjoined, e.g. in US v. Hawkins nothing tied the offenses together other than the D.

Question 32

Severence of defendants rule

Answer 32

Under Zafiro v. US - it is very difficult to sever anatagonistc defenses because mutually antagonistic defenses are not per se prejudicial. Rule 14 only requires severence is prejudicie is shown. Defendants should be severed only if there is a serious risk that a joitn trial would comrpmoise a specific right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence.

Question 33

Rule 14 severence relief from prejudicial joinder

Answer 33

If joinder of offenses or defendants in an indictment, information, or consolidation for trial appears to prejudice a D or the government, the court may order seperate trials of counts, sever the d’s trials, or provide any other relief that justice requires.

Question 34

Rule 8 joinder of Defendants

Answer 34

May charge 2 or more Defendants if they are alleged to have participated in the same act or transaction, or in the same series of acts or transactions constituting an offense or offenses. All D’s need not be charged in each count.

Question 35

Bruton Issues

Answer 35

Bruton issues are the most commonly litigated severence issue and presents 6A confrontation clause problems. Bruton holds that a codefendant’s statements are not admissible against their Cod as a conspirator when there is (1) a conspiracy; and (2) a post arrest statement implicating the speaker who is a codefendant and does not testify. Statement is only admissible against the speaker. Redacted confessions that say “delete” or “blank” for the cod’s name are not admissible. (Gray v. MA). And the more interlocking a confession it is the more detrimental it is and must be excluded. (Cruz v. NY).

Question 36

Speedy trial question attack

Answer 36

(1) Is it an SOL issue? I to 3 yrs late likely implicates it; (2) 6A constitutional right to speedy and public trial; (3) Speedy trial act; (4) Due process violation e.g. prejudiced by delay. Speedy trial calculates from indictment to trial.

Question 37

Speedy trial rule

Answer 37

The 6A right to speedy trial requires dismissal with prejudice if it is violated. (Barker v. Wingo). To determine if there is a violation, the court will balance (1) the length of delay; (2) reason for delay; (3) D’s assertion of speedy trial right; (4) prejudice to defendant. (likely need all 4). The greater the delay, the more presumptive prejudice increases over time. 8.5 yrs is presumptively prejudicial. Dogget v. US. If it is attributable to gov negligence, more likely to be a violation.

Under the Speedy trial Act, courts can dismiss with or without prejudice based on (1) seriouslness of crime; (2) circumstances surrounding delay; (3) potential effect of dismissal on administration of justice. Under Zedner, a D cannot waive time for all time under the Act. A delay before an arrest/indictment does not implicate STA or 6A. (Lovasco).
A delay may violate due process if it prejudiced the defendant.

Question 38

6A right to assistance of counsel

Answer 38

In all criminal prosecutions the accused shall enjoy the right to assistance of counsel for his defense. 6A. Gideo applied the 6A right to counsel to all defendants in non-capital felony cases where there is potentially a loss of liberty. Whenever detention is a possible punishment, a D has the right to counsel. If a suspended sentence is imposed that is a prison term, the underlying trial requires counsel right, giving it at the probation violation hearing is too late. Assistance of counsel attaches at the initial appearance and goes through every critical stage so through sentencing. A critical stage is any stage where counsel’s absence might derrogate from the accused’s right to a fair trial and includes a police line-up, plea negotiations, arraignments, appeals of rights, and revocation proceedings if jail is an outcome are all critical. But ordinary police interrogation after arrest and Jail discplinary hearings are NOT critical. Applies to all first-level appeals.
A D does not have an unqualified right under 6A right to an attorney to the attorney of their choice. And won’t if there is a conflict of interest. Wheat v. US.

Question 39

Right to effective assistance of counsel.

Answer 39

Strickland standard (performance and prejudice) - D must show counsel’s performance was deficient so it fell below the standard of care and was not acting as counsel at all; (2) deficient performance prejudiced the defense by showing a reasonable probability that but for the errors, result would hav ebeen different. Errors must be so serious as to deprive of a fair trial. Stategic choices made after throrough investigation will not be challenged. But, prejudice is presumed where (1) actual or constructive denial of counsel; (2) certain kinds of state interference with counsel e.g. refuse to allow to meet during an overnight recess; (3) attorney conflict of interst; (4) where counsel failed to function in any meaningful sense as the government’s adversary. E.g. don’t make reasonable efforts to obtain and review material they knew P would rely on. Rompilla v. Beard.

Question 40

IAC in plea bargaining

Answer 40

Under Misouri v. Frye, defense counsel has duty to communicate formal offers from prosecution. And under Laffler v. Cooper, counsel cannot tell a D that the prosecutor will never be able to prove a charge. If a plea was for a reduced sentence, the court may exercise discretion to determine whether D should receive the term offered in the plea, the trial sentence, or something in between. If the plea was for reduced or dropped charges or if judge’s sentencing discretion is limited, the judge may require prosecution to reoffer plea. Court may vacate convictions and resentence pursuant to plea, vacate some and resentence, or leave as is.

Question 41

Duty of prosecutors

Answer 41

Prosecutors have a hightened duty of candor and should not make any statement or state fact or law or offer evidence that they do not reasonably believe to be true. They should correct misrepresentations of material fact/law that they reasonably believe is false. They have a duty to disclose if they learn/realize facts or law are different and they must disclose exculpatory evidence.

Question 42

Prosecutor charging decisions rule

Answer 42

Under the take care clause, prosecutors should take care that the laws are faithfully executed and they have the right to select specific charges up to constitutional limits but may not do so for unconstitutional reasons involving bias or prejudice. No one, not a civil suit, can compel prosecutors to file charges. For a D to show unconstituional charging, they must show that the government failed to prosecute similarly situated suspects of other races. US v. Armstrong.

Question 43

Discovery rules ((1) const; (2) statute; (3) rules)….Rule 16

Answer 43

Rule 16 - P must disclose D’s oral, written, or recorded statements, D’s prior record, documents and objects in gov’s possession or control and it is material to defense, gov will use it in case-in-chief, or item belongs to D, reports of examinations and tests and expert witness testimony.

Question 44

Brady rules (constitutional issue)

Answer 44

Under Brady, the prosecution has an ironclad duty to disclose, before trial, evidence that could undercut its case, even if D doesn’t ask for it. Failure to do so is unconstitutional. To appeal, D must show (1) evidence was suppressed; (2) it was favorable to him; and (3) it oculd have affected the outcome at trial e.g. it was material. The prosecution must also disclose evidence somone else cimmitted a crime, witnesses prior inconsistent statement, evidence of a motive to lie, evidence that casts doubt on credibility of police or lab tecnnician. Unde rKyles v. Whitley, the court looks at the suppressed evidence collectively and whether a competent counsel could use it to make a different result reasonabley probably.

Brady does not apply to information prior to a binding plea agreement or impeachment material that the government will use. US v. Ruiz.

Question 45

Prosecution discovery.

Answer 45

When defense has a statutory right to discovery, prosecution has a reciprocal right to discovery. Rule 16 requires D to give at gov’s request, copies of docs or itmes, reports, exam, tests, or expert statements that D will use in case-in-cheif. The court may sanction failure to give discovery by permitting inspection, granting continuance, prohibiting party from introducing it or anything else that is just under the circumstances.

Alibi rule - Notice of alibi rule requirement is constituaional where D gets liberal discovery because the state has interst in preventing false alibis. 5th A permits giving name and address of alibi. Williams v. Florida. But, if there is no reciprocal discovery, DPC forbids enforcement of alibi rules. Wardius v. OR.

Question 46

Guilty pleas Rule 11

Answer 46

A guilty plea must be knowing (informed choice), voluntary, and intelligent. To be reliable, D must be told they give up their trial rights to jury, cross, counsel, trial. A guilty plea must also have a factual basis. While judges dislike Alford pleas, a client may say they are innocent but acknowledge there are enough facts to convict. Plea may be guilty, no contest, or Alford. The record of the plea must show the D made a knowing, intelligent, voluntary relinquishment of known rights. Rule 11 permits a conditional plea while preserving appeal for a specific issue.

Question 47

Judge’s sentencing factors

Answer 47

Judges look at the nature of each charge to which D pleads, any maximum possible penalty including imprisonment, fines, supervised relief, any minimum penalty, applicable forfeiture, court’s authority to order restitution, obligation to impose a sepcial assesment.

Question 48

Plea bargaining rules.

Answer 48

Plea barganing itself is not involuntary. A prosecutor may threten to reindict a defendant on a more serious charge if they do not plead. Bordenkircher. Any waiver must be an intentional relinquishment of a known rights so the D must know about the right and intentionally give it up. Johnson v. Zerbst. A D must also be advised of their immigration consequences of a plea. (Padilla/US v. Rodriguez Vega). To determine whether a plea is made voluntarily, the court must address the D personally in open court and ensure they are not under the influence and are able to act voluntarily. Where where is a package deal, parties have to notify the court and say on the record what the specific terms of the rules are. Rule 11 requires the material terms of the plea to be stated on the record. US v. Hodge.

Question 49

Plea as a K

Answer 49

Pleas are not strict Ks. Neither party can be foreced to abide until the court accepts the plea. The P may withdraw a plea offer unless D had detrimentally relied on it. A D may essentially waive double jeapoardy in their plea if they make an agreement to testify and do not and then the gov reinstates original charge. Rickets v. Adamson. A prosecutor’s breach of a completed and accepted plea agreement, even if inadvertent, requires either resentencing in front of a different judge or opportunity to withdraw the plea. Santobello v. NY.

Question 50

Venire

Answer 50

Panel of prospective jurors. 6A entitles D to a fair cross section of jurors in the venire. To challenge a venire, D must show they are a member of a (1) distinctive group (race or gender); (2) evidence of underrepresentation in the venire; (3) underrepresentation of distinctive group is the result of systemic exclusion inherent in particular jury selection process utilized. Once shown, burden shifts to the state to show the process manifestly and primarily advanced a significant state interst. State can’t give whole group opprotunity to exclude themselves.

Question 51

voir dire

Answer 51

preliminary exam of a witness or a juror by a judge or counsel.

Question 52

challenge for cause

Answer 52

juror cannot sit for various reasons e.g. prejudice, felony conviction, couldnt’ fairly decide the case or follow judge instructions.

Question 53

peremptory / Batson challenge

Answer 53

objection to a proposed juror (a member of the venire) without needing to give a reason. Number will be limited by statute. Purposeful violation of EPC to remove from the venire members of D’s race. Batson challenge requires (1) D must show they are member of cognizable racial group and P used peremptory challenges to remove from the venire members of their race/gender. (2) D is entitled to rely on fact that peremptory challenges constitute a jury selection practice that permits discrimination; (3) D must show facts and circumstances that raise inference of personal discrimination. = prima facie case. D may use comparative analysis to prove EPC violation including office history. Miller-el. Then, the striking party must give a race-neutral explanation (court accepted language barriers) and the court decides if the the striking party carried its burden of proof.

Question 54

Panel

Answer 54

Group of final jurors who consider the evidence and delbierate

Question 55

6A right to trial by jury

Answer 55

A jury must have at least 6 people and be close to unanimous (likely unanimous for capital cases or 10-2).

Question 56

Right to be present, testify, obtain evidence, present a defense.

Answer 56

Prosecutor cannot make disparaging comment about D not testifying. They may state that D was the last one to testify though. A D has a right to be present, but if they have disruptive behavior they may be (1) bound and gagged; (2) held in contempt; (3) removed from the courtoom. Il v.Allen. The court may also exlcude Ds from noncritical stages such as competency of a witness determination. Kentucky v. Stincer. A D’s post-arrest silence cannot be used against them by the prosecutor’s case in cheif. It leaves open whether it can be used as impeachment. Doyle v. OHio.

Police can surround D w/o violating DPC at trial, but D can’t be forced to wear prison clothes. Hollbrook v. Flynn.

Question 57

6A confrontation clause -

Answer 57

In all criminal prosecutions, accused shall enjoy the right to be confronted with the witness against him. Entitled to physical face to face confrontation absent an important public policy where liabiilty fo testimony is otherwise assured. (MA v. Craig using screens is okay). Under Crawford, if a statement was testimonial, then confrontation is required and guarantees D opportunity for cross. If witness is unavailable for trial then only a prevoius opportuinty for cross sufices. (only exception is dying declaration). If the out-of-court statement was not testimonial, then it doesnt require confrontation. It is testimonial if its primary purpose, objectively understood, is to further an investigation (not an emergency). A certificate of lab results is testimonial.

Question 58

Sentencing limits

Answer 58

3 Strikes are constitutional. 8th A proprtionality review of sentences applies to non-capital sentences. Ewing v. CA. To determine whether a sentence is disproportiante so as to violate the 8A, courts look at (1) gravity of the offense and harshness of the penalty; (2) sentence imposed on other criminals of the same jx; (3) sentence imposed for commission of the same crime in other jxs. Solemn v. Helm. Under Apprendi, an enhancement that doubles a sentence over the jury maximum violates the 6A right to pretrial notice of all elements of the crime because the elements have to be proven BRD by a jury. Any fact that increases a maximum sentence except for a prior conviction, and specific aggravating facts must be submitted to jury for BRD. The federal sentencing guidelines ARE constitutional if they are not mandatory. US v. Booker (xcised unconstitutional parts).

Question 59

Double Jeapoardy

Answer 59

Protects against (1) a second prosecution for the same crime after an acquital (Fong Foo). A D can be impliedly acquitted of a greater offense if the jury decides to convict on a lesser included offense only. ; (2) second prosecution for the same crime after a conviction; (3) two punishments for the same crime in a single proceeding; (4) a strategically motivated mistrial that lets the government pick a more favorable jury. Jeapoardy attaches when the jury is empaneled and sworn or in a bench trial when the first witness is sworn. Christ v. Bretz.

A conviction that is reveresed on appeal does not prevent a new trial unless the reversal is based on insufficient evidence to sustain a verdict. Ball v. US. Gov CAN retry a case that was dismissed because of speedy trial violation since guilt or innocence was not decided.

The collateral estoppel component of DJC prevents new trial on the same disputed factual issue that D prevailed on in the first issue. (Ashe v. Sweonson). If a D moves for a mistrial, they can only claim DJC in the second case if the reason they moved for mistrial was prosecutiral or judicial conduct intended to goad them into moving for a mistrial.

Court can’t look at reasons for hung jury, only look at decisions jury made and D cannot attack inconssitent verdicts e.g. uilty of some and acquitted of others. Powell v. US.

Question 60

Double Jeapoardy “for the same offense” test

Answer 60

If D challenges guilt on multiple charges based on similar but not the exact same charged acts, look at the elements of each charged violation. If the elements are necessary included e.g. lesser included offenses then it will be barred. If two offenses require proof of an additional fact though, they are not the same.

Question 61

5th A privilege against self incrimination and compelled testimony

Answer 61

Kastigar - use and derivative immunity statutes are constitutional and able to compel testimony. But, the gov cannot present immunized testimony at all and will have a Kastigar hearing to determine that they did not obtain evidence from immunized testimony. Under Murphy v. Waterfront Commission a state immunity statute also gives immunity in federal court. The 5th A also protects against compelled production of documents in some cases when there is a testimonial aspect. e.g. US v. Hubbell. But, the government can compel nontestimonial statements e.g. put on a shirt, blood, voice, handwriting sample.

Question 62

Immunity terms

Answer 62

With use immunity, the government cannot use the testimony against the witness. Under derivative immunity, the government cannot use evidence obtained from the testimony agasint the witness. With transactional immunity, the government cannot prosecute the witness for crimes they reveal. Immunity statutes apply to the whole government and permit compelled testimony without violating the 5A, but a plea agreement or contract with a specific agency only applies to that agency and is not compelled testimony.

Question 63

Factors to consider when determining bail

Answer 63

o Deciding Bail amount:
 The nature and circumstances of the offense (crimes of terrorism, crimes of violence, crimes involving minors)
 Weight of the evidence
 History and characteristics of the person (finances, ties to the community, criminal record, drug issues, mental/physical health)
 Nature and seriousness of the risk of danger to any person in the community that might be posed by D
 Prior court appearances (failure to appear)
 Employment
 FLIGHT RISK