Crim Pro Flashcards

Question

Valid Warrant

Answer 1

Core requirements: Probable cause Particularity

Answer 2

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time the warrant is executed. Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions.

Answer 3

An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the informant’s reliability and credibility or their basis for knowledge are relevant factors in making this determination. Note that the informer’s identity generally need not be revealed

Answer 4

Must describe place to be searched and items to be seized with particularity Can be anticipatory, need not be on premises at time of getting warrant, know it will be there A warrant may be obtained to search premises belonging to nonsuspects, as long as there is probable cause to believe that evidence will be found there. Neutral magistrate

Answer 5

Only the police (and not private citizens) may execute a warrant No third parties allowed unless identifying stolen property Violation of knock and announce rule will not result in suppression of evidence

Answer 6

A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant. Neither does the warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed. Detentions are limited to persons in the immediate vicinity of the premises when the warrant is being executed. Of course, if a police officer has reason to believe any person present is armed and dangerous, the officer may conduct a Terry pat down for weapons

Answer 7

Search Incident to Arrest ----Automobiles ----Technological Searches ----Search Incident to Incarceration or Impoundment Automobile Exception Plain View Exception Consent Exception Stop and Frisk Hot Pursuit, Evanescent Evidence, and Emergency Aid

Answer 8

Police can search after a valid arrest Police can make protective sweep of area if they believe accomplices may be in the area Search must be contemporaneous with time and place of arrest If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional. Can search person and person’s wingspan

Answer 9

The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search: 1. The arrestee is unsecured and still may gain access to the interior of the vehicle; or 2. The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle

Answer 10

Court will balance how new type of search affects privacy vs how much search is needed for legitimate governmental interests Warrantless breath test permitted but not blood Physical attributes of cell phone may be searched but not data

Answer 11

At the police station, the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle. And can search all containers in the vehicle

Answer 12

EXCEPTION: if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search the vehicle without a warrant.

Answer 13

If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle and any container that might reasonably contain the item for which they had probable cause to search. If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later. If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.

Answer 14

Probable cause can arrive after being stopped Still valid reason for stop needed But after stop, probable cause can arise from facts BUT must be before anyone or anything is searched (plain view works though)

Answer 15

The search may extend to packages belonging to a passenger; it is not limited to the driver’s belongings.

Answer 16

If the police have probable cause only to search a container in a vehicle, they may search only the container, not other parts of the vehicle.

Answer 17

The police may make a warrantless seizure when they: 1. Are legitimately on the premises 2. Discover evidence, fruits or instrumentalities of crime, or contraband 3. See such evidence in plain view; and 4. Have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime

Answer 18

A warrantless search is valid if the police have a voluntary consent. Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent. The scope of the search may be limited by the scope of the consent, but generally extends to all areas to which a reasonable person under the circumstances would believe it extends. If police say they have a warrant, it NEGATES consent

Answer 19

Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants. Exception: an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant. If a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on consent of the remaining occupant, even if the removed co-occupant had refused consent.

Answer 20

Terry stop: Brief detention for the purpose of investigating suspicious conduct Terry frisk: Pat down of outer clothing and body to check for weapons Stop must be reasonable and reasonable belief man is armed for frisk. If feel weapon or contraband, then valid. However, no manipulation, only plain feel. The scope of the frisk is generally limited to a patdown of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.

Answer 21

During a patdown, an 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, and such items are admissible as evidence.

Answer 22

If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may: (1) conduct a frisk of the suspected person, and (2) search the vehicle, so long as it is limited to the areas in which weapon may be placed

Answer 23

Evidence that may disappear quickly if police took time to get warrant Evanescent means fleeting Blood draw requires warrant typically, but could have circumstances where they need to

Answer 24

If felon fleeing, may make warrantless search and seizure and may pursue suspect into private dwelling Within 15 minutes is rule of thumb If truly in hot pursuit, any plain view evidence is admissible, in any particular apartment even if not suspect

Answer 25

Police may enter premises without warrant if officer faces emergency that threatens health or safety Ex. hears gunshots in house and screams for help

Answer 26

The following warrantless searches have been upheld (non-exhaustive): Administrative searches of a business within a highly regulated industry Drug tests of public school students who participate in extracurricular activities

Answer 27

A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary. A school search will be held to be reasonable only if: It offers a moderate chance of finding evidence of wrongdoing The measures adopted to carry out the search are reasonably related to the objectives of the search; and The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Answer 28

Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the Fourth Amendment. A valid warrant authorizing a wiretap may be issued if (1) there is showing of probable cause, (2) the suspected persons involved in the conversations to be overheard are named, (3) the warrant describes with particularity the conversations that can be overheard, (4) the wiretap is limited to a short period of time, (5) the wiretap is terminated when the desired information has been obtained, and (6) return is made to the court, showing what conversations have been intercepted.

Answer 29

Unreliable: A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation. Uninvited: A speaker has no Fourth Amendment claim if they make no attempt to keep a conversation private.

Answer 30

Pen Registers Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute judicial approval is required before a pen register may be used.

Answer 31

Evidence obtained in a manner that offends a “sense of justice”—is inadmissible under the Due Process Clause. If a crime is induced by official actions that shock the conscience, any conviction stemming from those actions is unconstitutional.

Answer 32

For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances. A statement will be involuntary only if there is some official compulsion (for example, a confession is not involuntary merely because it is a product of mental illness).

Answer 33

Applies If an involuntary confession is admitted into evidence, the harmless error test applies; this means the conviction need not be overturned if there is other overwhelming evidence of guilt.

Answer 34

Applies to all critical stages of prosecution after judicial proceedings have begun Prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived their right to counsel. Note that there can be no violation of the Sixth Amendment right to counsel before formal proceedings have begun. Thus, a defendant who is arrested but not yet charged does not have a Sixth Amendment right to counsel but does have a Fifth Amendment right to counsel under Miranda.

Answer 35

Post-indictment interrogation Preliminary hearings to determine probable cause to prosecute Arraignment Post-charge lineups Guilty plea and sentencing Felony trials Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed Overnight recesses during trial Appeals as a matter of right Appeals of guilty pleas

Answer 36

Blood sampling Taking of handwriting or voice exemplars Precharge or investigative lineups Photo identifications Preliminary hearings to determine probable cause to detain Brief recesses during the defendant’s testimony at trial Discretionary appeals Parole and probation revocation proceedings Post-conviction proceedings

Answer 37

The Sixth Amendment is offense specific. Thus, even though a defendant’s Sixth Amendment rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda). Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.

Answer 38

Must be knowing and voluntary Does not require presence of counsel, if counsel was not requested

Answer 39

At nontrial proceedings (such as post-indictment interrogations), the harmless error rule applies to deprivations of counsel. But if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic reversal of the conviction, even without a showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal.

Answer 40

A statement obtained in violation of a defendant’s Sixth Amendment right to counsel, while not admissible in the prosecution’s case-in chief, may be used to impeach the defendant’s contrary trial testimony. This rule is similar to the rule that applies to Miranda violations

Answer 41

Miranda warnings are required when a suspect is in custodial interrogation. For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that: The person has the right to remain silent Anything the person says can be used against them in court The person has the right to presence of an attorney; and If the person cannot afford an attorney, one will be appointed for them if they so desire Note that the warnings need not be verbatim so long as the substance of the warnings is conveyed.

Answer 42

Governmental Conduct Generally, Miranda warnings are necessary only if the detainee knows that they are being interrogated by a government agent. The warnings are not necessary when the detainee is being interrogated by an informant whom the defendant does not know is working for the police.

Answer 43

Inapplicable at Grand Jury Hearing The Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.

Answer 44

Determining whether custody exists is a two-step process: 1. The first step (sometimes called the “freedom of movement test”) requires the court to determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave. All of the circumstances surrounding the interrogation must be considered. 2. If an individual’s freedom of movement was curtailed in this way, the next step considers “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.” Therefore, the more a setting resembles a traditional arrest (that is, the more constrained the suspect feels), the more likely the Court will consider it to be custody.

Answer 45

“Interrogation” includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee. Thus, Miranda warnings are not required before spontaneous statements are made by a detainee. Note that routine booking questions do not constitute interrogation

Answer 46

After receiving Miranda warnings, a detainee has several options: do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.

Answer 47

If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.

Answer 48

The detainee may waive their rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary. The Court will look to the totality of the circumstances in determining whether this standard was met. But it appears that if the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.

Answer 49

Must be explicit, unambiguous, and unequivocal (for example, the accused’s failure to answer does not constitute an invocation of the right to remain silent). the police must scrupulously honor this request by not badgering the detainee. In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning when the police waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning.

Answer 50

If the detainee unambiguously indicates that they wish to speak to counsel, all questioning must cease until counsel has been provided unless the detainee: (1) then waives their right to counsel (for example, by reinitiating questioning) or (2) is released from the custodial interrogation back to their normal life and 14 days have passed since release. A request for counsel must be specific (for example, indicate that the detainee desires assistance in dealing with interrogation). Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally does not satisfy the right to counsel—counsel must be present during the interrogation unless the detainee has waived the right.

Answer 51

If the detainee indicates that they wish to remain silent, the police probably may requestion them about a different crime after a break if fresh warnings are administered. If the detainee requests counsel, the police may not resume interrogating the detainee until counsel is provided or the detainee initiates the questioning.

Answer 52

Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule.

Answer 53

Statements obtained in violation of the Miranda rules may be used to impeach the defendant’s trial testimony, but may not be used as evidence of guilt.

Answer 54

If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional (that is, the facts make it seem like the police used this as a scheme to get around the Miranda requirements). However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.

Answer 55

If the police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to nontestimonial evidence, the evidence will be suppressed if the failure was purposeful, but if the failure was not purposeful, the evidence probably will not be suppressed.

Answer 56

The Supreme Court has allowed interrogation without Miranda warnings when it was reasonably prompted by a concern for public safety (for example, to locate a hidden gun that could have caused injury to innocent persons)

Answer 57

A suspect has a right to the presence of an attorney at any post-charge lineup or showup. An accused does not have a right to counsel at photo identifications Or when police take physical evidence, such as handwriting exemplars or fingerprints.

Answer 58

A defendant can attack an identification as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification.

Answer 59

The remedy for unconstitutional identifications is exclusion of the in-court identification

Answer 60

A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an independent source. The most common independent source is opportunity to observe at the time of the crime (for example, the witness viewed the defendant close up for several minutes during commission of the crime).

Answer 61

Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proving that: (1) counsel was present; (2) the accused waived counsel; or (3) there is an independent source for the in-court identification. The defendant must prove an alleged due process violation.

Answer 62

Unconstitutionally obtained evidence is excluded at trial Fruit of the poisonous tree Evidence obtained from exploitation of unconstitutionally obtained evidence

Answer 63

The fruits derived from statements obtained in violation of Miranda Evidence obtained from a source independent of the original illegality Attenuation: causal link between police misconduct and evidence is broken. Intervening acts of free will on the part of the defendant. Inevitable discovery Violations of the knock and announce rule Three I’s of breaking the chain: Independent source Intervening act of free will Inevitable discovery If an original unlawful police action leads police to other witness, that person will likely not be excluded A defendant may not exclude a witness’s in-court identification on the ground that it is the fruit of an unlawful detention.

Answer 64

Inapplicable to Grand Juries, Civil Proceedings, Violations of State Law, Internal Agency Rules, and Parole Revocation Proceedings The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of the federal wiretapping statute. The rule is also inapplicable at parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to state law or agency rules.

Answer 65

The exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.

Answer 66

(1) The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied on it. (2) The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it. (3) The police officer or prosecutor lied to or misled the magistrate when seeking the warrant. (4) The magistrate is biased and therefore has wholly abandoned their neutrality.

Answer 67

Some illegally obtained evidence may still be used to impeach the defendant’s credibility if they take the stand at trial. Specifically, an otherwise voluntary confession taken in violation of the Miranda requirements is admissible for impeachment purposes, and evidence obtained from an illegal search may be used by the prosecution to impeach the defendant’s, but not others’, statements. REMEMBER CAN COME IN TO IMPEACH

Answer 68

If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was harmless. Mound of other evidence shows guilt

Answer 69

A defendant is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge out of the hearing of the jury. The government bears the burden of establishing the admissibility by a preponderance of the evidence. The defendant has the right to testify at a suppression hearing without their testimony being admitted against them at trial on the issue of guilt.

Answer 70

Without probable cause already established, need probable cause hearing within 48 hours.

Answer 71

The Fifth Amendment right to indictment by grand jury has not been incorporated into the Fourteenth Amendment, but some state constitutions require grand jury indictment. Conducted in secret Defendant has no right to notice No right to counsel or Miranda warnings No right to have evidence exclusion No right to challenge subpoena on 4th Amendment grounds Conviction from indictment issued by grand jury from which minority group was excluded will be reversed without regard to harmless error

Answer 72

A determination of whether a defendant’s Sixth Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances Factors: Length of delay Reason for delay Whether defendant asserted right Prejudice to defendant

Answer 73

Dismissal with prejudice

Answer 74

Does not attach until D has been arrested or charged **When a speedy trial issue is raised, check timing. Has defendant been arrested or charged? If not, then no speedy trial violation.

Answer 75

Failure to disclose material, exculpatory evidence is grounds for reversing conviction if (wilfully or inadvertently): 1. Evidence is favorable to defendant and 2. Prejudice has resulted

Answer 76

Insanity Defense to a criminal charge based on the defendant’s mental condition at the time they committed the charged crime. Incompetency Not a defense to the charge, but rather is a bar to trial. It is based on the defendant’s mental condition at the time of trial. If the defendant later regains competency, they can then be tried and convicted.

Answer 77

Due process is violated if the judge is shown to have actual malice (not actual hate or anger) against the defendant or to have had a financial interest in having the trial result in a guilty verdict. Impermissible bias also is present when a judge earlier had significant, personal involvement as a prosecutor in a critical decision regarding the defendant’s case.

Answer 78

There is no constitutional right to jury trial for petty offenses, but only for serious offenses. An offense is serious if imprisonment for more than six months is authorized. Also, there is no right to jury trial in juvenile delinquency proceedings There is no constitutional right to a jury of 12, but must be at least six jurors to satisfy the right to a jury trial. Jury verdicts must be unanimous.

Answer 79

A defendant has a right to have the jury selected from a representative cross-section of the community. The defendant need only show the underrepresentation of a distinct and numerically significant group in the venire to show their jury trial right was violated. Note that a defendant does not have the right to proportional representation of all groups on their particular jury Not a right for ACTUAL jury in trial

Answer 80

Generally may use peremptory challenge for any reason Cannot challenge jurors solely on the basis of race or gender

Answer 81

Standard—Impair or Prevent Performance The standard for determining when a prospective juror should be excluded for cause is whether the juror’s views would prevent or substantially impair the performance of their duties in accordance with their instructions and oath. Related, worker, etc

Answer 82

A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever race is bound up in the case or the defendant is accused of an interracial capital crime.

Answer 83

A defendant has a right to counsel. Violation of this right at trial, including erroneous disqualification of the defendant’s privately retained counsel, requires reversal. For nontrial denials, the harmless error test is applied.

Answer 84

Waiver must be knowing and intelligent Defendant is competent to proceed pro se Note that a defendant does not have a right to self-representation on appeal.

Answer 85

1. Deficient performance by counsel 2. But for deficiency, result of proceeding would have been different Must show specific deficiencies Note: If counsel admits their client’s guilt in the face of the defendant’s clearly articulated desire to maintain their innocence during the sentencing phase of trial, this structural error mandates a new trial without any need to first show prejudice.

Answer 86

The Sixth Amendment grants to a defendant in a criminal prosecution the right to confront adverse witnesses. The right is not absolute: Face-to-face confrontation is not required when preventing such confrontation serves an important public purpose (for example, protecting child witnesses from trauma). Also, a judge may remove a disruptive defendant, and a defendant may voluntarily leave the courtroom during trial.

Answer 87

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the defendant’s own confession, which is admitted. However, such a statement may be admitted if: All portions referring to the other defendant can be eliminated The confessing defendant takes the stand and subjects themself to cross-examination with respect to the truth or falsity of what the statement asserts; or The confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively

Answer 88

Declarant Unavailable Defendant had opportunity to cross-examine declarant at time statement was made

Answer 89

State must have guilt beyond a reasonable doubt Burden may be on defendant to prove affirmative defenses Presumption that shifts burden of proof to defendant violates 14th amendment

Answer 90

A judge is to give a jury instruction requested by the defendant or the prosecution if the instruction is correct, has not already been given, and is supported by some evidence.

Answer 91

Guilty plea must be voluntary and intelligent This must be done by addressing the defendant personally in open court on the record. Specifically, the judge must be sure that the defendant knows and understands things such as: The nature of the charge to which the plea is offered and the crucial elements of the crime charged The maximum possible penalty and any mandatory minimum; and That the defendant has a right not to plead guilty and that if they do plead guilty, they waive the right to trial

Answer 92

The judge need not personally explain the elements of each charge to the defendant on the record; it is sufficient that the record reflects that the nature of the charge and the elements of the crime were explained to the defendant by their own counsel.

Answer 93

The remedy for a failure to meet the standards for taking a plea is withdrawal of the plea and pleading anew.

Answer 94

Those pleas that are seen as an intelligent choice among a defendant’s alternatives are immune from collateral attack. But a plea can be set aside for (1) involuntariness (failure to meet standards for taking a plea), (2) lack of jurisdiction, (3) ineffective assistance of counsel, or (4) failure to keep the plea bargain.

Answer 95

Plea bargain enforced against prosecutor and defendant but not the judge, who does not have to accept plea Plea is not involuntary because of threat of being charged with more serious crime if not pleading guilty

Answer 96

A guilty plea conviction may be used as a conviction in other proceedings when relevant (for example, as the basis for sentence enhancement). However, a guilty plea neither admits the legality of incriminating evidence nor waives Fourth Amendment claims in a subsequent civil damages action.

Answer 97

A defendant has a right to counsel during sentencing.

Answer 98

The death penalty can be imposed only under a statutory scheme that gives the jury reasonable discretion, full information concerning defendants, and guidance in making the decision. The statute cannot be vague. Moreover, it must allow the sentencing body to consider all mitigating evidence

Answer 99

No death penalty for rape Cannot execute prisoner who is insane at time of execution No death penalty for person who is intellectually disabled No death penalty for those who committed crime as a minor

Answer 100

There is no federal constitutional right to an appeal

Answer 101

Indigent has no right to appointed counsel Petitioner has burden of proof to show unlawful detention by preponderance of evidence The state may appeal the grant of a writ of habeas corpus. A defendant generally may bring a habeas petition only if the defendant is in custody. Generally, this includes anyone who has not fully served the sentence about which they wish to complain.

Answer 102

If revocation of probation also involves imposition of a new sentence, the defendant is entitled to representation by counsel in all cases in which they are entitled to counsel at trial

Answer 103

Prisoners’ rights issues rarely appear on the Multistate Bar Exam, and when they do appear they usually involve the same constitutional analysis as set out in the general constitutional law outline. The most important rules peculiar to criminal procedure are: Due Process Prison regulations impinge on due process rights only if the regulations impose “atypical and significant hardship” in relation to the ordinary incidents of prison life. No Fourth Amendment Protection in Cells Right of Access to Courts Prisoners must be given reasonable access to the courts

Answer 104

Jury trial: empaneling and swearing of jury Bench trial: when first witness is sworn Juvenile proceeding bars future criminal trial for same offense Juvenile proceedings in civil trials

Answer 105

First trial ends in a hung jury. Manifest necessity to abort first trial (ex. Medical necessity) Defendant successfully appealed conviction (unless ground for reversal was insufficient evidence) Retrial is permitted when reversal is based on the weight (rather than sufficiency) of the evidence. However, on retrial, a defendant may not be tried for a greater offense than that for which they were convicted. A harsher sentence may be imposed for reasons other than vindictiveness for taking an appeal, but if the jury found that the death penalty was not appropriate in the first trial, a death sentence may not be imposed at the second trial Defendant breaches plea bargain (ex. must testify every time) Defendant could have been tried for multiple charges in single trial but chose to have offenses tried separately

Answer 106

Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.

Answer 107

Attachment of jeopardy for a greater offense bars retrial for lesser included offenses. Attachment of jeopardy for a lesser included offense bars retrial for a greater offense. Shared all elements (ie robbery, larceny, and assault)

Answer 108

An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense (1) has not occurred at the time of prosecution for the lesser offense or (2) has not been discovered despite due diligence. Similarly, a retrial for murder is permitted if the victim dies after attachment of jeopardy for battery

Answer 109

Prohibition against double jeopardy does not apply to trials by separate sovereigns State and fed gov = separate sovereigns 2 states = separate sovereigns State and its municipalities = same sovereign **The rule is simple: Separate sovereigns can try a defendant for the same offense. Beware of facts that try to divert you from this easy issue (for example, statements about juries being empaneled or witnesses sworn in—things that go to attachment). Attachment does not matter if there are two separate sovereigns. On the other hand, remember that municipalities are considered part of the state, and so both a state and its municipality cannot validly try a defendant for the same offense.

Answer 110

Privilege against self incrimination can be asserted by any person in any type of case when answer to question might tend to incriminate them. Only natural persons may assert the privilege, not corporations or partnerships. The privilege is personal and so may be asserted by a defendant, witness, or party only if the answer to the question might tend to incriminate them.

Answer 111

A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. Thus, if an individual responds to questions instead of claiming the privilege during a civil proceeding, they cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.

Answer 112

A criminal defendant has a right not to take the witness stand at trial and not to be asked to do so. In any other situation, the privilege does not permit a person to avoid being sworn as a witness or being asked questions. Rather, the person must listen to the questions and specifically invoke the privilege rather than answer the questions. **Being required to give one’s name after Terry stop does not violate 5th amendment

Answer 113

5th amendment priv protects testimonial or communicative evidence and not real or physical evidence I.e blood sample, handwriting, voice, hair Constitutionally valid for dna cheek swab after serious crime

Answer 114

A person served with a subpoena requiring production of documents tending to incriminate them generally has no basis in the privilege to refuse to comply, because the act of producing the documents does not involve testimonial self-incrimination.

Answer 115

The Fifth Amendment does not prohibit law enforcement officers from searching for and seizing documents tending to incriminate a person. The privilege protects against being compelled to communicate information, not against disclosure of communication made in the past.

Answer 116

A violation of the Self-Incrimination Clause does not occur until a person’s compelled statements are used against them in a criminal case.

Answer 117

A Prosecutor may not comment on defendant’s silence after receiving Miranda warnings or at trial NOTE: A prosecutor can comment on D’s failure to take stand when in response to D’s assertion that D was not allowed to explain story If suspect remains silent before Miranda warnings, silence can be used against them

Answer 118

When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies

Answer 119

The state may not chill exercise of the Fifth Amendment privilege against compelled self-incrimination by imposing penalties for failure to testify

Answer 120

A witness may be compelled to answer questions if granted adequate immunity from prosecution.

Answer 121

Use and derivative use immunity guarantees that the witness’s testimony and evidence located because of testimony will not be used against them. Exception: the witness may still be prosecuted if the prosecutor shows that the evidence to be used against the witness was derived from a source independent of the immunized testimony

Answer 122

Testimony obtained by a promise of immunity is coerced and therefore involuntary. Thus, immunized testimony may not be used for impeachment of a defendant’s testimony at trial. However, any immunized statements, whether true or untrue, can be used in a trial for perjury.

Answer 123

Federal prosecutors may not use evidence obtained as a result of a state grant of immunity, and vice versa

Answer 124

A person has no privilege against compelled self-incrimination if there is no possibility of incrimination (for example, statute of limitations has run).

Answer 125

Immunity extends only to the offenses to which the question relates and does not protect against perjury committed during the immunized testimony

Answer 126

Defendant waives by taking witness stand (to extent necessary) Witness waives by disclosing incriminating information

Answer 127

There is no right to trial by jury in delinquency proceedings. Pretrial detention of a juvenile is allowed where it is found that the juvenile is a “serious risk” to society, as long as the detention is for a strictly limited time before trial may be held. If the juvenile court adjudicates a child a delinquent, jeopardy has attached and the prohibition against double jeopardy prevents the child from being tried as an adult for the same behavior.

Answer 128

Excessive Fines Clause of the Eighth Amendment applies only to fines imposed as punishment; it does not apply to civil fines. Thus, penal forfeitures are subject to the Clause, but civil forfeitures are not

Answer 129

Monetary forfeitures (for example, forfeiture of twice the value of illegally imported goods) brought in civil actions generally are not subject to the Eighth Amendment.

Answer 130

Government conduct Standing–REP Valid Warrant (probable cause and particularity) ---Good faith exception ------Exceptions to good faith exception Exception to Warrant

Answer 131

5th amendment is before formal charges (suspect) Attorney required for all questioning 6th amendment is after formal charges Offense specific, can talk to you about OTHER types of cases without lawyer (may need to remirandize etc)