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Isabella Bar Study > Crim Pro (Isabella) > Flashcards

Crim Pro (Isabella) Flashcards

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1
Q

Confessions-When is a statement involuntary and how is it determined?

A

A statement will only be involuntary if there is some official compulsion (e.g. mental illness)

Voluntariness is determined by the totality of the circumstances and
-The Harmless Error Test applies, meaning that the conviction need not be overturned if there is other overwhelming evidence of guilt

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2
Q

Sixth Amendment: What is it and when does it apply?

A

Right to Counsel which include all CRITICAL stages of a prosecution after judicial proceedings have begun

NO violation before formal proceedings have begun. So right after being arrested no 6th, just 5th (Miranda)

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2
Q

Sixth Amendment-Offense Specific

A

Defendant can be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment. Sixth Amendment only applies to whichever charge(s) 6th Amendment has attached to

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3
Q

What happens if a D is entitled to a lawyer but wasn’t given one at trial? What amendment does that fall under?

A

results in an automatic reversal of the convictions

6th amendment

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4
Q

6th Amendment-Impeachment

A

A statement obtained in violation of a D’s sixth amendment rights may be used to impeach D’s testimony.

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5
Q

5th Amendment

A

Miranda Warnings (custodial interrogation)
-Right to remain silent
-Anything the person says can be used against them in court
-right to attorney
-if can’t afford, one will be appointed

(need not be verbatim so long as the substance is conveyed)

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6
Q

5th-Governmental Conduct

A

necessary only if the detainee knows that they are being interrogated by a government agent

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7
Q

5th- 2 step process for determining custody

A
  1. Whether reasonable person would feel free to terminate interrogation and leave
  2. Whether environment presents same inherently coercive pressures as station house questioning
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8
Q

2 requirements for miranda

A
  1. custody
  2. interrogation
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9
Q

Options a detainee has after given Miranda warnings

A
  1. Do nothing: court doesn’t presume waiver
  2. waive rights-must show waiver was knowing and voluntary
  3. right to remain silent-must be explicit, unambiguous, and unequivocal
  4. right to counsel=of detainee indicates they wish to speak to counsel all questioning must cease
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10
Q

Use of confession that was obtained in Miranda violation for impeachment

A

may be used to impeach D’s trial testimony but may not be used as evidence of guilt

Evidence generally inadmissible

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10
Q

Miranda warning, what has to happen if a detainee invokes right to an attorney

A

all questioning must cease until counsel has been provided unless the detainee

  1. waives their right to counsel by answering questions again or
  2. is released from the custodial interrogation and 14 days have passed since release

Request for counsel must be specific

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11
Q

What if the police fail to give Miranda warnings and detainee gives the police information that leads to non-testimonial evidence?

A

Evidence will be suppressed if the failure was purposeful but if the failure was not purposeful, the evidence probably will not be expressed

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12
Q

Miranda Rights Exceptions

A

-When questioning is necessary for public safety.
-When asking standard booking questions.
-When the police have a jailhouse informant talking to the person.
-When making a routine traffic stop for a traffic violation.
-Honest Mistake by an officer forgetting to

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13
Q

6th Amendment: Due Process Standard for post charge lineup/showup

A

D can attack an identification as denying due process if the id is UNNECESSARILY SUGGESTIVE and there is a SUBSTANTIAL LIKELIHOOD OF MISIDENTIFICATION

*D can’t refuse to participate in a lineup bc theres no compulsion so 5th doesn’t apply

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14
Q

Remedy for unconstitutional identification

A

exclusion of the in-court identification BUT a witness can make an in-court ID if it has an independent source

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15
Q

what if two people are tried together and one has given a confession implicating the other?

A

If 2 ppl are tried together and one has given a confession that implicated the other, confrontation clause prohibits use of that statement. UNLESS:

  1. all portions referring to other D can be eliminated
  2. confessing D takes stand and subjects themselves to cross-examination OR
  3. confession of nontestifying co-d is being used to rebut D’s claim that their confession was obtained coercively
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16
Q

Exclusionary Rule

A

unconstitutionally obtained evidence excluded at trial

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17
Q

Fruit of the Poisonous Tree

A

evidence obtained from exploitation of unconstitutionally obtained evidence

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18
Q

Exceptions of fruit of the poisonous tree doctrine?

A
  1. The fruits derived from statements in violation of Miranda
  2. Evidence obtained from an INDEPENDENT SOURCE
  3. Attenuation: casual link between police misconduct and evidence is broken
    -D’s INTERVENING ACT OF FREE WILL
  4. INEVITABLE DISCOVERY
  5. Violations of the knock and announce rule

*capitalize is commonly tested

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19
Q

When is the exclusionary rule inapplicable?

A

Grand juries unless evidence was obtained in violation of the federal wiretapping statute.

Also parole revocation proceedings, civil proceedings, or where evidence was obtained contrary only to state law or agency rules

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20
Q

Good Faith Reliance-Exclusionary Rule definition and exceptions

A

ER does not apply when police arrest someone erroneously but in food faith thinking they are acting legally.

exceptions

  1. warrant is so lacking in PC and/or particularity that no reasonable cop would have relied on it
  2. cop/prosecutor lied or misled the magistrate when seeking the warrant
  3. magistrate is biased
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21
Q

Use of excluded evidence for impeachment purposes

A

some illegally obtained may still be used to impeach D’s credibility if they take the stand.

-an otherwise voluntary confession in violation of Miranda
-evidence obtained from an illegal search (impeach D’s not others statements)

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22
Q

Harmless Error Test

A

if illegal evidence admitted, conviction should be overturned on appeal unless government can show beyond a reasonable doubt that error was harmless

if D can show error had a substantial and injurious effect or influence in determining the jury’s verdict then D should be released

NEVER applies to denial of the right to counsel (but can be used to impeach)

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23
Q

When does a probable cause hearing need to happen?

A

Within 48 hours

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24
Q

Grand Jury Proceedings

A

-conducted in secret

-D has no right to notice, to be present, or confront witnesses

-no right to counsel, or Miranda

-no right to have evidence excluded

-no right to challenge subpoena

-conviction from indictment issued by grand jury from which minority excluded WILL be excluded

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25
Q

Speedy Trial

A

Sixth Amendment

Evaluation of totality of circumstances

-length of delay
-reason for delay
-whether D asserted right
-prejudice to D

(LRAP)

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26
Q

When does the right to speedy trial attach?

A

When arrested or charged, if not no right to speedy trial

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27
Q

Prosecutors duty to disclose exculpatory evidence

A

duty to disclose material, exculpatory evidence to the D (Brady material)

Failure to disclose (willful or inadvertent) violates the Due Process Clause and is grounds for reversal if D can prove:

  1. evidence is favorable to D and
  2. prejudice has resulted and reasonable probability that the result of case would have different
28
Q

Competency v. insanity to stand trial

A

insanity-defense based on the D’s mental condition at the time they committed the charged crime

incompetency: mental condition at time of the bar. when D becomes competent they can stand trial

29
Q

When is due process violated at trial?

A

if judge has actual malice against D or has financial interest in trial result

30
Q

Right to public trial which amendments

A

6th and 14th

31
Q

When is there a right to jury?

A

Only serious offenses, if imprisonment is more than 6 months

no right in juvenile cases

32
Q

Number and unanimity of jurors

A

no constitutional right to 12 but needs to be at least 6, needs to be unanimous

33
Q

Right to venire selected from representative cross-section of community

A

need to show misrepresentation

34
Q

Peremptory challenges

A

generally for any reason but can’t challenge jurors solely on basis of race or gender

35
Q

Right to questioning on racial basis for voir dire

A

entitled to question specifically directed to racial prejudice whenever race is bound up in the case or if D is accused of an interracial capital crime

36
Q

D may waive right to counsel if:

A

waiver is knowing and intelligent and
defendant is competent to proceed pro se

37
Q

An ineffective assistance claimant must show:

A

-defective performance by. counsel and
-but for the deficiency, result of proceeding would have been different
(time would have been different, didn’t tell D about plea, deportation issues)
-does not include trial tactics

38
Q

Confrontation Clause

A

6th amendment right to confront adverse witnesses

not required when preventing such confrontation serves an important public purpose (disruptive defendant, child witnesses)

39
Q

Prior testimonial statement

A

prior testimonial evidence not permitted unless

  1. declarant is unavailable AND
    -D had an opportunity to cross-examine the declarant at the time the statement was made
40
Q

Burden of Proof

A

-state must prove guilt beyond a reasonable doubt
-burden may be on defendant to prove affirmative defenses
-presumption that shifts burden of proof to D violates 14th amendment that state prove every element beyond reasonable doubt

41
Q

What does the judge have to know when D is pleading

A

plea is voluntary and intelligent
and makes sure d knows and understands (can be from attorney):

  1. natute of the charge and crucial elements
  2. max possible penalty and any mandatory minimum
    -that D has right to plead guilty and that if they do they are waiving right to trial
42
Q

Reasons to set aside plea

A
  1. involuntariness
  2. lack of jurisdiction
  3. ineffective assistance of counsel
  4. failure to keep plea bargain
43
Q

Death penalty for rape or felony murder

A

not allowed if rape was neither intended to result in nor did result in death. Same logic for felony murder unless defendant’s participation was major and acked with reckless indifference

44
Q

Death Penalty

A

-must be imposed under statutory scheme that gives jury reasonable discretion, full information, and guidance

-no death penalty for rape

-can’t execute someone who is insane at time of execution

-no dp for intellectually disabled

45
Q

Is there a federal constitutional right to an appeal?

A

no

46
Q

Habeas Corpus Proceeding

A

-no right to appointed counsek
-petitioner has burden of proff to show unlawful detention by preponderance of evidence

A writ of habeas corpus is used to bring a prisoner or other detainee (e.g. institutionalized mental patient) before the court to determine if the person’s imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody.

47
Q

Rights to counsel at parole and probation recovation

A

only if theres imposition of a new sentence

48
Q

When does jeopardy attach?

A

person may not be retried for same offense once jeopardy has attached

-Jury trial-empaneling and swearing of jury
-bench trial-when first witness is sworn in
-commencement of a juvenile proceeding

49
Q

Certain exceptions that permit retrial even if jeopardy has been attached

A

-may retry a D whose first trial ends in a hung jury

-manifest necessity to abort the original trial or when termination happens at behest of defendant (e.g. medical emergency during trial)

-D who has successfully appealed conviction (unless reversal grounds was insufficient evidence)
* D can’t be tried for greater offense (if convicted of manslaughter but then appeals for a new trial D can only be tried for manslaughter not murder)

-breaches their plea bargain

-could have been tried for multiple offenses but D elects to have offenses tried separately

50
Q

Double Jeopardy: When are two crimes the same offense?

A

Two crimes are always the same offense UNLESS each crime requires proof of additional element that other does not

can have multiple punishments if statute requires it (D can be sentenced for robbery and using a weapon during a crime if statutes so provide)

51
Q

Retrial for lesser included offenses with attachment of jeopardy

A

-Attachment of jeopardy for greater offense bars retrial for lesser included offense

-Attachment of jeopardy for lesser included offense bars retrial for greater offense

(e.g. robbery includes the two lesser crimes of larceny and assault, if a D is tried for robbery they cant be retried for larceny and vice versa)

52
Q

Exception for jeopardy

A

New Evidence

if unlawful conduct that is subsequently used to prove the greater offense
(1) has not occurred at the time pf prosecution for the lesser offense
(2) has not been discovered despite due diligence

-if victim dies and can be retried for murder

53
Q

Double Jeopardy-Separate Sovereigns

A

can be tried for the same offense
Can be charged fed and state; 2 states

BUT NOT
states and its municipalities

54
Q

What amendment does double jeopardy fall under

A

fifth

55
Q

Who can assert privilege against self incrimination

A

by any person in any type of case when answer to question might tend to incriminate them

-not corporations or partnerships, only people

56
Q

When can privilege be asserted

A

person may refuse to answer a question whenever their response might furnish a link in the chain fo evidence needed to prosecute them.

privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution

57
Q

What does privilege against self incrimination protect?

A

testimonial or communicative evidence NOT real or physical evidence (blood sample, hair sample, handwriting sample, etc.)

-only COMPELLED testimonial evidence is privileged

58
Q

What rights must a juvenile be given during a trial

A
  1. written notice of charges
  2. assistance of counsel
  3. opportunity to confront and cross-examine witnesses
  4. right not to testify
  5. right to have guilt established by proff beyond reasonable doubt

no right to trial by jury

59
Q

Involuntary Manslaughter

A

A person commits involuntary manslaughter when he causes a death by criminal negligence or recklessness (depending on jurisdiction)

Further, the defendant needs to be the proximate cause of death and the cause-in-fact.

Criminal negligence=failing to be aware of a substantial and unjustifiable risk and that failure constitutes a substantial deviation from the standard of care that a reasonable person would have exercised.

Recklessness: conscious disregard for a substantial and unjustifiable risk

60
Q

Proximate cause of death

A

if the death was a natural and probable consequence of his conduct even if he did not anticipate the precise manner in which it would occur

61
Q

Intervening Act to shield from liability

A

If the act is a mere coincidence or is outside the foreseeable sphere of risk created by the defendant’s act.

62
Q

Agency Theory of Liability

A

In the majority of states, the “agency theory” limits the scope of liability by holding individuals responsible only for deaths that they or their partners in the act cause. A minority of states, however, follow the “proximate cause” theory of liability.

63
Q

Proximate Cause Theory of Liability

A

In these states, all participants are held responsible for any deaths which are set in motion by the commission of the felony. If, for example, during an armed robbery, a storeowner pulls out a gun and accidentally shoots and kills a customer, all participants in the underlying felony can be charged with murder.

64
Q

Larceny v Larceny by Trick

A

Larceny is when someone takes something that doesn’t belong to them with the intention of keeping it. Larceny by trick occurs when someone tricks another person into giving them something, but they don’t actually own it. For example, claiming to have permission to borrow a car and then driving off without intending to return it is larceny by trick. The owner of the property must have consensually given possession of the property to the offender, but never transferred ownership to the offender.

65
Q

M’Naghten Rule

A

Under the M’Naghten rule, a defendant is entitled to an acquittal if the proof establishes that a disease of the mind caused a defect of reason, such that the defendant lacked the ability at the time of his actions to either know the wrongfulness of his actions or understand the nature and quality of his actions.

66
Q

What is duress not a defense to?

A

Intentional homicide

67
Q

Mens Rea MPC and CL definition

A

MPC:
1. purposefully
2. knowingly
3. recklessly
4. criminal negligence

CL:
1. intentionally

68
Q
A

Isabella Bar Study (8 decks)

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