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

Crim Pro - Modules 6-17 Flashcards

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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
Q

Must fruit of the poisonous tree be excluded?

A

yes, unless the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct

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26
Q

What are the exceptions to the fruit of the poisonous tree doctrine?

A

fruits derived from statements in violation of Miranda, independent source, attenuation/intervening acts, inevitable discovery, violations of knock and announce

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27
Q

What are the 3 “I’s” of breaking the poisonous fruit chain?

A
  1. independent source
  2. intervening causes
  3. inevitable discovery
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28
Q

Can in-court identification by a witness be excluded on the basis that the identification was fruit of an unlawful detention?

A

NO

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29
Q

Is the exclusionary rule applicable to grand juries?

A

No, unless evidence was obtained in violation of federal wiretapping statutes

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30
Q

Is the exclusionary rule applicable to parole revocation proceedings?

A

No

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31
Q

Does the exclusionary rule apply when police arrest someone erroneously but in good faith due to a defective warrant?

A

NO

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32
Q

4 exceptions to the defective warrant rule

A
  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
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33
Q

Can excluded evidence ever be used?

A

YES; if voluntary confession but violated Miranda, use for impeachment; if evidence obtained illegally, use to impeach defendant’s statements

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34
Q

What is the harmless error test?

A

if illegal evidence is admitted, a resulting conviction should be overturned on appeal, unless the government can show BRD that the error was harmless

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35
Q

Harmless error and habeas proceedings

A

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

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36
Q

The government bears the burden of establishing the admissibility of illegally obtained evidence by…

A

preponderance of the evidence

37
Q

Probable cause hearings must occur when?

A

within a reasonable period of time; usually within 48 hours after initial detention if seized without a warrant

38
Q

Bail

A

can usually be set no higher than is necessary to ensure the defendant’s appearance at trial

39
Q

General rules about grand juries

A
  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
Q

Speedy trial

A

evaluated based on totality of circumstances; does not attach until arrested/charged

41
Q

Prosecutors have a duty to disclose ________________ to defense?

A

exculpatory evidence

42
Q

When can a conviction be reversed based on withholding of exculpatory evidence?

A
  1. evidence is favorable to D
  2. prejudice has resulted
43
Q

T/F - If D is going to use an alibi or insanity, they do not need to notify the prosecution.

A

FALSE

44
Q

Insanity vs. Competency to Stand Trial

A

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
Q

When is a defendant incompetent to stand trial?

A
  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
Q

What is the standard for proving incompetency?

A

preponderance of the evidence; clear and convincing is unconstitutional

47
Q

At trial, a defendant has a right to an unbiased judge. When is this right violated?

A

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
Q

Right to jury trial

A

only for “serious” offenses punishable by more than 6 months jail time; not petty offenses

49
Q

How many jurors are needed to satisfy the right to a jury trial?

A

AT LEAST 6, no more than 12

50
Q

Peremptory challenges

A

each side gets 3; can strike for whatever reason, just not based on race or gender

51
Q

EPC-based attack on peremptory challenges: 3 step process

A
  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
Q

If a juror lies about their qualifications during voir dire and the trial resulted in a guilty verdict, then what?

A

vacate the verdict; move for mistrial

53
Q

D has a right to defend themselves at trial. What must be present?

A

waiver that is knowing and intelligent; judge has to consider D’s emotional and psychological state, determine that they are competent

54
Q

Ineffective assistance of counsel

A

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
Q

Conflicts of interest at trial

A

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
Q

Admission of co-defendant’s confessions

A

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
Q

Prior testimonial statement of unavailable witness

A

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
Q

What is a testimonial statement?

A

statements from preliminary hearing, grand jury hearing, former trial, or police interrogation conducted to establish or prove PAST FACTS

59
Q

Defendant must know what in order to accept a plea bargain?

A
  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
Q

Collateral attacks on guilty pleas after sentencing: pleas can be set aside for…

A
  1. involuntariness;
  2. lack of jurisdiction;
  3. ineffective assistance of counsel; or
  4. failure to seep the plea bargain
61
Q

Do judges have to accept the pleas?

A

NO

62
Q

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?

A

NO

63
Q

Does a defendant have a right to counsel during sentencing?

A

YES

64
Q

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?

A

NO, unless the second jury was told of the first jury’s sentence

65
Q

What is cruel and unusual punishment?

A

penalty that is grossly disproportionate to the seriousness of the offense committed

66
Q

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?

A

YES

67
Q

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.

A

TRUE

68
Q

Prison regulations impinge upon DPC only if what?

A

the regulations impose ATYPICAL AND SIGNIFICANT HARDSHIP in relation to the ordinary incidents of prison life

69
Q

If revocation of probation also involves imposition of a new sentence, D IS/IS NOT entitled to representation by counsel.

A

IS

70
Q

When does DJ attach?

A

when the jury is empaneled and sworn in (jury trial)
when the first witness is sworn in (bench trial)

71
Q

Exceptions permitting retrial of D even if jeopardy has attached

A
  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
Q

When are two crimes NOT the same offense?

A

each crime requires proof of an additional element that the other does not require

73
Q

DJ and lesser included offenses

A

attaches and bars retrial for lesser included offenses; vice versa

74
Q

Exception to DJ bar exists if unlawful conduct that is subsequently used to prove the greater offense…

A
  1. has not occurred at the time of the prosecution for the lesser offense; or
  2. has not been discovered despite due diligence
75
Q

Can the state continue to prosecute a charged offense despite defendant’s guilty plea to a lesser included or “allied” offense?

A

YES if stemming from the same incident

76
Q

Can the prosecution appeal?

A

yes even after jeopardy has attached; can appeal any dismissal on D’s motion that does NOT constitute an ACQUITTAL ON THE MERITS

77
Q

If the jury fails to impose the death penalty, can the prosecutor continue to seek it?

A

NO not on retrial after successful appeal

78
Q

Who can assert the privilege against self-incrimination?

A

ANY PERSON IN ANY TYPE OF CASE; does not have to be the defendant!!!

79
Q

When does a violation of self-incrimination occur?

A

when a person’s compelled statements are used against them in a CRIMINAL case

80
Q

Testimony obtained by a promise of immunity is __________ and therefore _______________.

A

coerced; involuntary

81
Q

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.

A

MAY NOT; CAN

82
Q

A person has _________ against compelled self-incrimination if there is no possibility of incrimination.

A

NO PRIVILEGE; ex. SOL has run

83
Q

What does immunity extend to?

A

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

84
Q

When does D waive the privilege against self incrimination?

A

when they take the stand and are subject to cross

85
Q

When does a witness waive the privilege against self incrimination?

A

only if they disclose incriminating information

86
Q

What rights must be given to a child during the trial of a delinquency proceeding?

A
  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
Q

SCOTUS held that the Excessive Fines Clause of 8A applies only to fines imposed as ____________; it does not apply to ____________.

A

punishment; civil fines

88
Q

If a forfeiture is penal and the Excessive Fines Clause of 8A applies, the forfeiture will not be excessive unless…

A

grossly disproportionate to the gravity of the offense

Criminal Law/Procedure (5 decks)

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