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Criminal Law/Procedure > Crim Pro - Modules 6-17 > Flashcards

Crim Pro - Modules 6-17 Flashcards

1
Q

When does 6A right to assistance of counsel attach?

A

after initiation of formal proceedings

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2
Q

What is the difference between 5A and 6A?

A

6A is offense specific; 5A is not

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3
Q

What are the two main criminal procedure tests?

A

totality of the circumstances and harmless error

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4
Q

What does 6A allow as far as police interrogations?

A

defendant may be questioned regarding unrelated, UNCHARGED offenses without violating 6A

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5
Q

Can 6A be waived? If so, how?

A

yes; must be knowing and voluntary

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6
Q

What is the remedy for a 6A violation at nontrial proceedings (ex. post-indictment interrogations)?

A

harmless error rule applies; if harmful, cannot use

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7
Q

What is the remedy for 6A violation at trial?

A

failure to provide attorney at trial results in AUTOMATIC REVERSAL of conviction

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8
Q

What can a statement obtained in violation of 6A be used for?

A

impeachment purposes only; cannot be used in prosecutions case-in-chief

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9
Q

Are Miranda warnings required to be given verbatim?

A

NO; non verbatim is fine as long as the substance of the rights are conveyed adequately

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10
Q

When are Miranda warnings required?

A

when the suspect is in custody of the government and accused of the crime; must be given prior to interrogation

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11
Q

T/F - Miranda warnings are necessary only if the detainee knows they are being interrogated by a governmental agent.

A

YES; not required when being interrogated by informant

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12
Q

Are Miranda warnings applicable at a grand jury hearing?

A

NO; does not apply to an uncharged witness testifying before a grand jury

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13
Q

What is custody?

A

a reasonable person under the circumstances would feel that they were not free to terminate the interrogation and leave

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14
Q

Does the environment of the interrogation matter?

A

yes, plays into custody; if police controlled, likely an interrogation and warnings are needed

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15
Q

What is interrogation?

A

any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee

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16
Q

If a detainee does nothing or says nothing, will the court presume a waiver of warnings?

A

NO; police can continue to question

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17
Q

Waiver of Miranda

A

must be knowing and voluntary; totality of circumstances

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18
Q

Invocation of right to remain silent

A

must be explicit, unambiguous, and unequivocal; police must scrupulously honor this request

if detainee reinitiates contact with police, the waiver is waived and police can question

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19
Q

Invocation of right to counsel (5A)

A

must be unambiguous, all questioning must cease immediately UNLESS detainee waives OR detainee is released from custody and 14 days have passed since release

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20
Q

T/F - If detainee indicates that they wish to remain silent, police can probably requisition them about a different crime after a break if fresh warnings are administered.

A

TRUE

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21
Q

T/F - If detainee requests counsel, police may not resume interrogation until detainee is provided with counsel or detainee initiates the questioning.

A

TRUE

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22
Q

Effect of a Miranda violation

A

inadmissible under exclusionary rule; can be used for impeachment

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23
Q

Due Process and 6A

A

defendant can attack a post-charge line up as denying due process if the identification is unnecessarily suggestive and there is a substantial likelihood of misidentification; in-court identification must be excluded

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24
Q

What is the exclusionary rule?

A

prohibits introduction of evidence obtained in violation of 4A, 5A, and 6A

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25
Must fruit of the poisonous tree be excluded?
yes, unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct
26
What are the exceptions to the fruit of the poisonous tree doctrine?
fruits derived from statements in violation of Miranda, independent source, attenuation/intervening acts, inevitable discovery, violations of knock and announce
27
What are the 3 "I's" of breaking the poisonous fruit chain?
1. independent source 2. intervening causes 3. inevitable discovery
28
Can in-court identification by a witness be excluded on the basis that the identification was fruit of an unlawful detention?
NO
29
Is the exclusionary rule applicable to grand juries?
No, unless evidence was obtained in violation of federal wiretapping statutes
30
Is the exclusionary rule applicable to parole revocation proceedings?
No
31
Does the exclusionary rule apply when police arrest someone erroneously but in good faith due to a defective warrant?
NO
32
4 exceptions to the defective warrant rule
1. Affidavit severely lacks PC; no reasonable officer would have relied on it 2. affidavit severely lacks particularity; no reasonable officer would have relied on it 3. police or prosecutor lied/misled the magistrate 4. magistrate is biased
33
Can excluded evidence ever be used?
YES; if voluntary confession but violated Miranda, use for impeachment; if evidence obtained illegally, use to impeach defendant's statements
34
What is the harmless error test?
if illegal evidence is admitted, a resulting conviction should be overturned on appeal, unless the government can show BRD that the error was harmless
35
Harmless error and habeas proceedings
if P claims constitutional error, P should be released if they can show that the error had a SUBSTANTIAL AND INJURIOUS EFFECT OR INFLUENCE in determining the jury's verdict
36
The government bears the burden of establishing the admissibility of illegally obtained evidence by...
preponderance of the evidence
37
Probable cause hearings must occur when?
within a reasonable period of time; usually within 48 hours after initial detention if seized without a warrant
38
Bail
can usually be set no higher than is necessary to ensure the defendant's appearance at trial
39
General rules about grand juries
1. conducted in secret; defendant not entitled to attend (no entitlement to notice, cannot confront witnesses) 2. no right to counsel or Miranda; witnesses have no right to have an attorney present 3. indictments may be based on evidence that would be inadmissible at trial 4. no right to challenge a subpoena on 4A grounds; cannot claim lack of PC 5. cannot exclude minorities on grand jury
40
Speedy trial
evaluated based on totality of circumstances; does not attach until arrested/charged
41
Prosecutors have a duty to disclose ________________ to defense?
exculpatory evidence
42
When can a conviction be reversed based on withholding of exculpatory evidence?
1. evidence is favorable to D 2. prejudice has resulted
43
T/F - If D is going to use an alibi or insanity, they do not need to notify the prosecution.
FALSE
44
Insanity vs. Competency to Stand Trial
Insanity - mental condition at the time they committed the charged offense (is a defense) Incompetency - not a defense, but a bar to trial, based on D's mental condition at trial
45
When is a defendant incompetent to stand trial?
1. they lack a rational as well as factual understanding of the charges and proceedings; or 2. they lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding
46
What is the standard for proving incompetency?
preponderance of the evidence; clear and convincing is unconstitutional
47
At trial, a defendant has a right to an unbiased judge. When is this right violated?
DPC is violated if judge has shown ACTUAL MALICE against D or they have a financial interest in having the trial result in a guilty verdict
48
Right to jury trial
only for "serious" offenses punishable by more than 6 months jail time; not petty offenses
49
How many jurors are needed to satisfy the right to a jury trial?
AT LEAST 6, no more than 12
50
Peremptory challenges
each side gets 3; can strike for whatever reason, just not based on race or gender
51
EPC-based attack on peremptory challenges: 3 step process
1. D must show facts or circumstances that raise an inference that the exclusion was based on race or gender; 2. P must come forward with a race/gender-neutral explanation for the strike; 3. Judge makes a determination whether or not strike was sincere
52
If a juror lies about their qualifications during voir dire and the trial resulted in a guilty verdict, then what?
vacate the verdict; move for mistrial
53
D has a right to defend themselves at trial. What must be present?
waiver that is knowing and intelligent; judge has to consider D's emotional and psychological state, determine that they are competent
54
Ineffective assistance of counsel
Must prove: 1. deficient performance by counsel; and 2. but for the deficiency, result would be different D must give specific instances of deficiencies
55
Conflicts of interest at trial
if attorney advises judge of resulting COI AT OR BEFORE the trial, and the court refuses to appoint separate counsel for co-defendants, D is entitled to AUTOMATIC REVERSAL
56
Admission of co-defendant's confessions
Admit if: 1. all portions referring to the other defendant can be eliminated; 2. confessing defendant takes the stand and subjects himself to cross; or 3. confession of the non testifying co-D is being used to rebut the D's claim that their confession was obtained coercively
57
Prior testimonial statement of unavailable witness
May not be admitted unless: 1. declarant is unavailable; and 2. D had an opportunity to cross the declarant at the time that the statement was made
58
What is a testimonial statement?
statements from preliminary hearing, grand jury hearing, former trial, or police interrogation conducted to establish or prove PAST FACTS
59
Defendant must know what in order to accept a plea bargain?
1. nature of the charge, and the crucial elements of the crime; 2. maximum possible penalty and any mandatory minimum; and 3. D has a right to to plead guilty, and if they do, they waive their right to trial
60
Collateral attacks on guilty pleas after sentencing: pleas can be set aside for...
1. involuntariness; 2. lack of jurisdiction; 3. ineffective assistance of counsel; or 4. failure to seep the plea bargain
61
Do judges have to accept the pleas?
NO
62
Is there a presumption of prosecutorial vindictiveness in charging a more serious crime when defendant demands a jury trial instead of taking a plea bargain?
NO
63
Does a defendant have a right to counsel during sentencing?
YES
64
Does a judge have to give reasons if a greater sentence was imposed upon a de novo trial or in a state that uses jury sentencing?
NO, unless the second jury was told of the first jury's sentence
65
What is cruel and unusual punishment?
penalty that is grossly disproportionate to the seriousness of the offense committed
66
Does 8A prohibit the execution of a prisoner who is insane at the time of execution, even if the prisoner was sane at the time the crime was committed?
YES
67
T/F - 8A does to forbid the execution of a person with a mental disorder that leaves them without any memory of committing the crime for which they are being punished if they can still form a rational understanding of the reason for the death sentence.
TRUE
68
Prison regulations impinge upon DPC only if what?
the regulations impose ATYPICAL AND SIGNIFICANT HARDSHIP in relation to the ordinary incidents of prison life
69
If revocation of probation also involves imposition of a new sentence, D IS/IS NOT entitled to representation by counsel.
IS
70
When does DJ attach?
when the jury is empaneled and sworn in (jury trial) when the first witness is sworn in (bench trial)
71
Exceptions permitting retrial of D even if jeopardy has attached
1. first trial ends in hung jury 2. trial discontinued, manifest necessity to abort original trial 3. reversal required b/c first result is against great weight of the evidence 4. D breached plea bargain 5. D could have been tried for multiple charges in single trial but elected to have offenses tried separately
72
When are two crimes NOT the same offense?
each crime requires proof of an additional element that the other does not require
73
DJ and lesser included offenses
attaches and bars retrial for lesser included offenses; vice versa
74
Exception to DJ bar exists if unlawful conduct that is subsequently used to prove the greater offense...
1. has not occurred at the time of the prosecution for the lesser offense; or 2. has not been discovered despite due diligence
75
Can the state continue to prosecute a charged offense despite defendant's guilty plea to a lesser included or "allied" offense?
YES if stemming from the same incident
76
Can the prosecution appeal?
yes even after jeopardy has attached; can appeal any dismissal on D's motion that does NOT constitute an ACQUITTAL ON THE MERITS
77
If the jury fails to impose the death penalty, can the prosecutor continue to seek it?
NO not on retrial after successful appeal
78
Who can assert the privilege against self-incrimination?
ANY PERSON IN ANY TYPE OF CASE; does not have to be the defendant!!!
79
When does a violation of self-incrimination occur?
when a person's compelled statements are used against them in a CRIMINAL case
80
Testimony obtained by a promise of immunity is __________ and therefore _______________.
coerced; involuntary
81
Immunized testimony MAY/MAY NOT be used for impeachment of D's testimony at trial, but CAN/CANNOT be used in a trial for perjury.
MAY NOT; CAN
82
A person has _________ against compelled self-incrimination if there is no possibility of incrimination.
NO PRIVILEGE; ex. SOL has run
83
What does immunity extend to?
only offenses to which the question relates; does not protect against perjury committed during the immunized testimony
84
When does D waive the privilege against self incrimination?
when they take the stand and are subject to cross
85
When does a witness waive the privilege against self incrimination?
only if they disclose incriminating information
86
What rights must be given to a child during the trial of a delinquency proceeding?
1. written notice of charges; 2. assistance of counsel; 3. opportunity to confront and cross witnesses; 4. the right not to testify; and 5. the right to have guilt established BRD
87
SCOTUS held that the Excessive Fines Clause of 8A applies only to fines imposed as ____________; it does not apply to ____________.
punishment; civil fines
88
If a forfeiture is penal and the Excessive Fines Clause of 8A applies, the forfeiture will not be excessive unless...
grossly disproportionate to the gravity of the offense

Criminal Law/Procedure (5 decks)

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