Criminal Procedure 1

Question 1

Fruits of Poisonous Tree Doctrine

Answer 1

evidence found b/c of illegally obtained evidence excluded

UNLESS balance chance of deterring police misconduct against value of evidence

Question 2

Exceptions to Fruit of Poisonous Tree Doctrine

Answer 2

Independent source
Attenuation (intervening act/circumstance)
Inevitable discovery by police
Live Witness Testimony
In-Court ID
Violation of no-knock entry rule
Good Faith reliance on defective search warrant
Use of Evidence to Impeach

Question 3

Outside scope of fruit of poisonous tree doctrine

Answer 3

-civil proceedings
-grand jury

-proceeding to revoke parole
-violation of state law / internal agency rule

Question 4

3 INs fruit of poisonous tree exceptions

Answer 4

-INdepenant souce
-INtervening act of free will by D
-INevitibile discovery

Question 5

rule applied to VIOLATIONS of exclusionary rule

Answer 5

Harmless error (overturn on appeal UNLESS gvmnt can show error was harmless)

Question 5

when can use evid found from volunt confession which violated miranda

Answer 5

impeach d but not impeach others

Question 6

Speedy trail, when does right attach

Answer 6

if D has been arrested or charged, right attaches

Question 6

Speedy Trial (how to gauge, when attach, remedy)

Answer 6

Under totality of circumstances, court will consider LRAP:
LENGTH of delay / REASON for delay / did d ASSERT rights / PREJUDICE to D

attaches on arrest or charging

remedy for violation: dismissal w/ prejudice

Question 7

Grand Jury

Answer 7

Not required of States (but some put it in const.)

Secret proceeding,

Broad Subpoena Power (quash only if no reas. poss. material sought relevant to GJ investigation)

If GJ find Prob. Cause, they issue a true bill

Question 8

Grand Jury, what rights D doesn’t have

Answer 8

Counsel
Miranda Warnings
Warnings that witness is potential D

Can’t challenge PC for subpoenas
Can’t exclude evidence that would be inadmissible at trial

Question 9

Exclusionary Rule

Answer 9

Evidence obtained in violation of defendant’s Fourth, Fifth, or Sixth Amendment rights generally will be excluded to deter government violation of constitutional rights

Question 10

Preliminary Hearing

Answer 10

Hearing to determine probable cause (must be w/in reasonable time (48 hours))

Not req. if PC already found (like grand jury or arrest warrant)

Question 11

Initial Appearance

Answer 11

Soon after arrest

D told of charges, bail set, appointment if counsel if needed

Question 12

Bail

Answer 12

In Fed prosec. right to bail under due process clause

Not req. of states (unless they say so in Constitution)

When right to bail exists
–>excessive bail viol. 8th AM
–>unfair procedures violate due process

Question 13

Brady Violations

Answer 13

Gvmnt must disclose exculp. evid

Failure = DP violation if
RP trail result would have been different if
undisclosed evidence had been presented at trial

Question 14

Competency to Stand Trial (standard, timing, who must raise, burden to prove)

Answer 14

Time of trial

Standard:
D lacks rational/factual understanding of charges and proceedings
OR
D lacks ability to reasonably consult with a lawyer

Trial judge has duty to raise if no one else does

Burden to prove may be placed on D

D can be committed short term, but for longer need same procedure as you would for normal commitment

Question 15

Pretrial Publicity

Answer 15

Excessive prejudicial publicity may —> need new venue

Question 16

Right to Public Trial

Answer 16

6th and 14th Am provide right

PC hearing presumably open to public

Suppression hearings open w/ exceptions

Question 17

Suppression Hearing

Answer 17

Open Unless
court makes FINDINGS to support closure
other reasonable ALTERNATIVES were considered
closure no BROADER than necessary
party seeking closure has OVERRIDING interest

Question 18

Right to Jury

Answer 18

6th Am right for serous offenses - imprisonment more than 6 months; civil contempt (no right)

guilty plea = waived right to jury trial

Question 19

Right to Jury (#, unanimity, cross-section)

Answer 19

At least 6 jurors, verdict unanimous

D can complain even if not in excluded group
Preemptory challenge cannot be used in discriminating manner
-if D shows fact/circ. raising INFERENCE of prejudice
-P must give RACE/SEX neutral explanation
-Judge determine P’s SINCERITY
(defendants are similarly limited)

Question 20

Right to Impartial Jury

Answer 20

Right to Q on racial prejudice if race inexplicably bound up

Opposition to death penalty - may be excluded if view would prevent or substantially impair performance of duty

Question 21

Right to Counsel (remedy if violated, waiver)

Answer 21

1. denial at trial requires reversal
2. Denial of right at non-trial proceedings = harmless error standard (reversal unless harmless error)
3. Waiver valid if voluntary and intelligent (D needs factual and rational understanding of proceeding)

Question 22

Effective Assistance of Counsel

Answer 22

• part of 6th Am right
  -Effectiveness presumed
  -Ineffective if (deficient performance and but for deficiency, result would have been diff)

-trial tactics does not equal ineffective
-to argue it was bad you must give specifics

Question 23

Ineffective Assistance: Conflict of Interest - rep. multiple clients

Answer 23

-may be basis for reversal

-no right to joint representation

Question 24

Right to Confront Witnesses

Answer 24

Not absolute (ie disruptive defendant)

Co-Defendant’s confession, Prior Testimonial Statement of Witness Inadmissible (exceptions)

Question 25

Right to Confront Witnesses - CoDefendant’s Confession

Answer 25

Confession implicating Co-D Prohibited, unless
-references to D can be excised; or
-Confessing D takes stand and subjects himself to Exam

Question 26

Right to Confront Witness - Prior Testimonial Statement of Witness

Answer 26

Inadmissible unless:

Witness unavailable to testify (not through fault of D)

AND

Defendant Had opportunity to X exam witness when statement was made

Question 27

Prior Testimonial Statement, define Testimonial

Answer 27

at minimum includes: testimony from prelim hearings, grand jury hearings, former trial, police interrogation

1) Police interrogation not testimonial if purpose of Q was to respond to ongoing emergency
2) results of forensic test testimonial if offered to prove truth of testing

Question 28

Burden of Proof in Criminal Proceedings

Answer 28

Beyond Reasonable Doubt

Shift Burden from P to D violates 14th Am due process

Question 29

Guilty Plea (req / remedy/ judge must do what?)

Answer 29

Voluntary, Intelligent (unfairly informed defendant not bound by plea)

Judge personally address D on record to make sure D knows
NATURE of charge and crucial elements
MAXIMUM possible charge and mandatory minimum
Right NOT TO PLEAD guilty
PLEA waives right to trial

Question 30

Bases for attack on guilty plea

Answer 30

involuntary

court lacked JD

Ineffective assistance of counsel

failure of prosecutor to keep plea bargain

(note, D can’t withdraw plea if it was an intelligent choice among alternatives)

Question 31

Constitutional Rights for Sentence and Punishment

Answer 31

Counsel - yes

Confrontation - no (exceptions: death penalty / magnified sentence baes on new facts)

Question 32

Resentencing after D’s Successful Appeal

Answer 32

If judge give greater punishment, must show why on record

if de novo trial or jury trial, dosen’t apply

Question 33

Substantive rights regarding punishment

Answer 33

8th Am prohibits C/U punishment (grossly disproportional to offense)

Question 34

Death penalty

Answer 34

only ok for murder and felony murder if accomplice participated in major way and acted with reckless disregard to value of human life

Statutory scheme must give fact finder reasonable discretion/ info /guidance in making decision, statute cannot be vague