Crim Pro Flashcards
Δ (16-y/o) is arrested, taken to the station, and given his Miranda warnings. Δ asks to see a lawyer. Police call Δ’s parents in to the station, ask them to speak to Δ, and secretly record their conversation, during which Δ confesses. Δ moves to suppress use of the confession to his parents. The best argument for excluding it would be
(A) Δ was in custody at the time the statement was recorded.
(B) the police did not comply with Δ’s request for a lawyer.
(C) once Δ had invoked his right to counsel, it was improper for the police to listen to any of his private conversations.
(D) the meeting between Δ and his parents was arranged by the police to obtain an incriminating statement.
(D).
In Innis, the Supreme Court held that Miranda is in effect “whenever a person in custody is subjected to either express questioning or its functional equivalent.” It includes words or actions by the police that the police should know are reasonably likely to elicit an incriminating response. In the case of suspects who are minors, courts have pointed out that seemingly private conversations with parents are reasonably likely to result in a confession.
So, when the police brought Δ’s parents to the station, created the illusion of a private conversation, and then eavesdropped on it, they were engaged in the functional equivalent of a custodial interrogation by police. They manufactured a situation that they should have reasonably known would elicit a confession.
Corporations have no ______ privilege.
Fifth Amendment
Can a subpoena to produce documents violate an individual’s privilege against self-incrimination?
Typically no, but it can if the very act of production itself would be incriminating or would require the defendant to reveal the contents of his mind.
(T/F) A conversation with someone that isn’t a police officer (or that the suspect doesn’t know is a police officer) can’t be custodial interrogation.
True
A grand jury returns an indictment charging Δ, and Δ is jailed pending trial. Δ is given Miranda warnings and makes no statements to the police. Police place an informant in Δ’s cell and urge him to get information about the crime for which Δ is in custody. The snitch does not ask any direct questions but manages to elicit information from Δ by boasting about his own crimes.
At trial, Δ’s attorney moves to exclude any testimony from the snitch concerning information Δ gave up during the conversation. The motion should be
(A) granted, because Δ’s privilege against self-incrimination was violated.
(B) granted, because Δ’s right to counsel was violated.
(C) denied, because Δ had received Miranda warnings.
(D) denied, because Δ was not interrogated by the snitch.
(B).
Once indicted, Δ’s 6A right to counsel attached, meaning at that point the gov’t could not “deliberately elicit” any statements from him in the absence of a waiver of his right to counsel. Deliberate elicitation (defined more broadly than interrogation) requires some actions by the gov’t designed to obtain a statement from the Δ. Here, the snitch elicited info from Δ through boasts while acting as a gov’t agent.
A, C, and D are all about Miranda. Miranda only applies to custodial interrogation. The idea behind the doctrine is that police can exert great pressure on the defendant which can cause him to violate his privilege against self-incrimination. But importantly, a conversation with someone that isn’t a police officer (or that the suspect doesn’t know is a police officer) can’t be custodial interrogation.
A grand jury investigating a murder learns the key suspect might have kept a diary. The GJ issues a subpoena duces tecum requiring the suspect to produce any diary. Does Δ’s 5A privilege allow him to refuse production of the diary?
Yes (so long as no immunity is offered and the SOL hasn’t run). The Fifth Amendment protects acts of production that would have testimonial significance by authenticating documents.
Δ was indicted and arrested. At an initial appearance before a magistrate judge, Δ was notified of the charges and told that counsel would be appointed the following day. The police then required the Δ to participate with other prisoners in a lineup. At the lineup, witnesses identified the Δ as the perpetrator. The next day, the Δ was arraigned on the charges.
The Δ argues that his 6A right to counsel was violated when he was denied counsel at the initial appearance and at the lineup. Was Δ’s 6A right to counsel violated?
(A) No.
(B) Yes, based only on the denial of counsel at the initial appearance.
(C) Yes, based only on the denial of counsel at the lineup.
(D) Yes, based on the denial of counsel at both stages of the proceeding.
(C).
The 6A right to counsel attached upon indictment (and if not for the indictment would’ve attached at the first appearance), but it only requires counsel at CRITICAL STAGES of the prosecution. Initial appearances are not critical stages of the prosecution. Lineups are critical stages.
The prosecutor called a witness knowing that the individual was convicted of perjury in the past, but waited until the defense was preparing to rest before disclosing that information. The defense then tried to recall the witness for impeachment purposes, but the witness couldn’t be located, so the defense introduced documentary evidence of the witness’s criminal record to the jury before resting its case. The Δ was convicted.
The Δ has moved for a new trial, arguing that the prosecutor’s failure to disclose the information in a timely manner violated the Δ’s right to due process of law. If the court grants the motion, what will be the most likely reason?
(A) The Δ was unable to cross-examine the witness about the conviction.
(B) The prosecutor failed to inform the grand jury of the witness’s conviction.
(C) The court found it reasonably probable that the Δ would have been acquitted had the defense had timely access to the information about the witness’s conviction.
(D) The court found that the prosecutor had deliberately delayed disclosing the witness’s conviction to obtain a strategic advantage.
(C). The untimely disclosure of evidence favorable to the defense (including impeachment information) violates the Constitution if the evidence would have created a reasonable probability of a different outcome had it been disclosed earlier.
Δ’s atty hired a consultant to gather info for the preparation of a sentencing plan for Δ. The consultant interviewed Δ for 3 hours. The consultant was subsequently subpoenaed to testify before a grand jury, but refused to to answer any questions concerning her conversation with Δ.
The prosecution has moved for an order requiring the consultant to answer the questions. The motion should be
(A) denied, on the basis of the attorney-client privilege.
(B) denied, in the absence of probable cause to believe the interview developed evidence relevant to the grand jury’s inquiry.
(C) granted, because the consultant is not an attorney.
(D) granted, because exclusionary evidentiary rules do not apply in grand jury proceedings.
(A).
The A-C privilege extends to non-attorneys if the client’s communications with those individuals is for purposes of the lawyer’s representation. Communications with a paralegal, secretary, investigator, consultant, and so on can still be covered by attorney-client privilege when they are assisting the attorney with the representation.
(D) is technically true, but not relevant b/c the A-C privilege is not an exclusionary rule. It applies to civil trials, grand juries, administrative hearings—everything. It’s an essentially ironclad rule that information within the scope of the privilege can’t be subject to forced disclosure (unless there has been a waiver or forfeiture of the privilege, and we don’t see anything like that here).
In order to choose self-representation and waive the right to counsel, a Δ must waive the right ____.
knowingly, intelligently, and with knowledge of the consequences of waiving the right
If a Δ is going to represent herself, she must be made aware of the dangers and disadvantages of self-rep – the court should warn the Δ.
Is jury selection a CRITICAL PHASE of the prosecution? So what?
Yes.
So, the Δ has the right to be present and has the right to have counsel present.
A defendant charged with assault has pleaded not guilty and has requested a jury trial. The prosecutor has announced that she will be seeking a 10-year sentence based on the defendant’s alleged possession of a deadly weapon.
What finding regarding the defendant’s possession of a deadly weapon is necessary for the court to impose a 10-year sentence?
(A) A judicial finding by a preponderance of the evidence.
(B) A jury finding by a preponderance of the evidence.
(C) A judicial finding beyond a reasonable doubt.
(D) A jury finding beyond a reasonable doubt.
(D)
Any fact that increases the maximum punishment that a defendant may receive (or that makes the defendant eligible for a mandatory minimum) is the equivalent of an element of a crime, and must be found by a jury under the beyond-a-reasonable-doubt standard of proof—just like any element. A judge cannot find the fact, and the finding must be made beyond a reasonable doubt.
