Crim Pro 2 - Sheet1 Flashcards
crim pro
5th Amendment Right to Counsel
arises only when someone who hears a Miranda warning says “I want a lawyer”. NOT OFFENSE SPECIFIC= police cannot interrogate D on any subject.
crim pro
6th Amendment Right to Counsel
for all criminal proceedings; OFFENSE SPECIFIC= police can question about different offenses w/out lawyer (different crimes= at least 1 different element). Arises post-filing.
crim pro
Pre-Trial ID
Attacking Pre-Trial ID: post-charge lineup and showups give rise to 6th Amendment right to counsel. (no right to counsel at showing of photographs.) If lineup is suggestive, violates due process.
Remedy: exclude in-court id; however Govt can still assert and Independent Source (i.e. witness had ample time to look at D at time of the crime. If prosecutor can show independent source, we will permit the in court ID.)
crim pro
Pre-trial Issues
Bail (bail issues are immediately appealable; preventive detention is constitutional)
Grand Juries (states do NOT have to have GJ as part of process) (GJ witness may be compelled to testify based on illegally seized evidence.) (Proceedings are secretive. D has no right to appear).
crim pro
Right to a Fair Trial
Right to an unbiased judge (bias = financial interest in outcome OR some actual malice against D. (“next time you are back here, im giving you the max” is NOT bias)
crim pro
Right to Jury Trial
**Attaches at any time
crim pro
Right to Counsel
Right to counsel is the right to the effective assistance of counsel.
Standards: D must show (1) deficient performance by counsel; (2) but for the deficiency, the result would have been different. (very difficult to prove).
crim pro
Guilty Pleas & Plea Bargaining
Guilty Plea= waiver of right to jury trial
Requirements of Guilty Plea= (1) revealed on record; (2) judge notifies D of
nature of charges, maximum sentence, and right to plead guilty.
- Mistake: D may withdraw his plea & plead again if mistake
- Collateral Attacks on Guilty Pleas: General Rule: Supreme Court will not disturb guilty pleas. EXCEPTIONS: (1) plea was involuntary; (2) lack of jurisdiction; (3) Ineffective assistance of counsel (never works); (4) failure of prosecutor to keep an agreed upon plea (crt will determine if specific performance or withdrawal).
crim pro
Sentencing & Death Penalty
Appeals: D may not be given a harsher sentence on retrial after a successful appeal.
- Mitigating Facts: any death penalty that does not give D a chance to present mitigating facts and circumstances is unconstitutional. State cannot limit, by
statute, mitigating factors. All relevant mitigating evidence must be admissible.*
- Aggravating Facts: only a jury, and not a judge, may determine the aggravating factors justifying imposition of the death penalty.
- No automatic category: no crime where it is automatic you get the Death penalty
crim pro
Double Jeopardy
When Jeopardy Attaches (jury trial- when jury is sworn in; bench trial- first witness is sworn).
- Exceptions Permitting Retrial: (1-jury is unable to agree on verdict; 2- mistrial for manifest necessity i.e. D gets sick; 3- Retrial after successful appeal; 4- breach of an agreed upon plea bargain by D).
- 2 crimes: 2 crimes do not constitute the same offense if each crime requires proof of an initial element that the other does not. (i.e. Manslaughter with a vehicle & hit & run
crim pro
Self-Incrimination
5th Amendment
- Who can assert? Anybody. In any kind of proceeding; but if you don’t assert the first time, the privilege is waived for all subsequent prosecutions.
- Scope: 5th Amendment does not protect us from using our bodies to incriminate ourselves; only protects from compelled testimony. (no lie detector tests)
- Comment to Jury: prosecutor cannot make a negative comment to jury about Ds failure to testify or remaining silent after Miranda warnings.
- Eliminating the privilege: (1) immunity (use & derivative); (2) no possibility of incrimination (i.e. SoL); (3) waiver (D taking stand waives privilege as to all legitimate subjects of cross-examination)
