Criminal Procedure Flashcards

Question

Confessions: Miranda Warnings

Answer 1

. Required for 1) Custody and 2) Interrogation . Need not be verbatim if substance is covered . 5th amendment right- not 6th . Inapplicable at GJ hearing- do not apply to uncharged witness testifying before GJ even if under a subpoena . CUSTODY: when a reasonable person would not feel free to leave based on totality of circumstances . INTERROGATION: Must be given prior to interrogation by police and must know they are being interrogated by gov agency, not police informant- any words or conduct that would likely elicit an incriminating response . Spontaneous statements: routine booking questions are not interrogation

Answer 2

following a Miranda warning, detainee can 1) Do nothing: if the detainee does not respond, they will not presume waiver of rights but will not presume that they have asserted right to remain silent 2) Waive Right: must be knowingly and voluntary under totality of circumstances 3) Assert Right to Remain Silent: must be explicit, unambiguous and unequivocal and police must scrupulously honor request. May reinitiate questioning after a significant amount of time with new warning 4) Assert Right to Counsel: unambiguously indicates they want counsel, all questioning must cease unless 1) they later waive the right or 2) have been release and 14 days have lapsed since release

Answer 3

1) Impeachment; may be used to impeach the defendant’s trial testimony but not as evidence of guilt 2) Nontestimonial Fruits: may be used if the failure to issue was not purposeful, thought cop A gave it 3) Public Safety: allowed interrogation without warning when reasonably prompted by concern for public safety- hidden gun

Answer 4

. Prohibits introduction of evidence obtained in violation of 4, 5,or 6th amendment rights and excludes all fruit off of the poisonous tree . **Exceptions that are still admissible . Fruits derived from statements in violation of Miranda (if not purposeful violation) . Evidence obtained from a source independent of the original illegality . Evidence that has a remote connection to the unconstitutional conduct or attenuated from the wrong . **Acts of free will of the defendant: if the d leaves and come back voluntarily- intervening act Breaks the chain: 3 In’s that will get evidence in: 1) Independent source 2) Intervening act of free will 3) Inevitable discovery . Inevitable discovery . Violations of knock and announce rule . Live witness testimony: if there was a witness the information will come in . Identifications: in court: will be let in

Answer 5

. Inapplicable to grand juries unless law tapping, civil proceedings . Good faith rule: does not apply when the police arrest someone erroneously, but they think it is valid, exceptions: 1) Affidavit was so lacking no police officer would have relied on it 2) Warrant so lacking in particularity they would not have relied on it 3) Police lied to magistrate to get warrant 4) Magistrate is bias **Impeachment . Some illegally obtained information can be used to impeach the defendant’s statements . Question does not have to say for impeachment, just will it come in, always list this exception Harmless Error . Conviction should be overturned but gov can show beyond reasonable doubt they would have been convicted anyway

Answer 6

. If there is no probable cause must have hearing within 48 hours

Answer 7

. 5th am right has not been incorporated, so they are not required . Conducted in secret . Defendant has not right to notice, to be present, miranda warnings, have evidence excluded, right to atty, no right to challenge subpoena or question witnesses . Exclusion of minorities: conviction resulting from and indictment issued by GJ that members of a minority group have been excluded will be reversed without regard to harmlessness of error

Answer 8

. 6th am right based on totality of circumstances . LRAP: length, reason, asserted (if defendant asserted right), prejudice . Remedy is dismissal with prejudice . **If speedy issue- check whether the defendant has been arrested or charged- if not no speedy trial issue

Answer 9

. Duty to disclose exculpatory evidence . Failure to disclose whether willful or inadvertent violates the DPC and is grounds for reversing a conviction if proof that 1) Evidence is favorable to defendant 2) Prejudice has resulted and reasonable probability that the result of case would have been different if the undisclosed evidence was at trial

Answer 10

. Insanity is the mental condition at the time they committed the charged crime . Competency: mental condition at the time of trial, and is not a defense for the crime charged and does not bar trial

Answer 11

. DP violated if judge is shown to have actual malice against defendant or has financial interest . Not just- if I see you in my court again- not actual malice

Answer 12

. Only for serious offenses, not petty offenses . Serious if imprisonment for over 6 months is authorized . No jury trial right for juveniles

Answer 13

. Must be at least 6 . No right to 12 . Must be unanimous . Cross-section of community: d needs to show underrepresentation but no right to final jury being representative . Forbidden use of preemptory challenges for racial and gender discrimination . Impartial standard: juror should be excluded for cause if juror’s views would prevent or substantially impair the performance of duties

Answer 14

. Right to question on racial bias is entitled if race is issue or capital crime . Right to counsel at trial- but no right in misdemeanor cases without jail time . Waiver: must be knowing and intelligent and competent to stand trial

Answer 15

Must show 1) Deficient performance and 2) But for, the result would have been different

Answer 16

. Right to confront adverse witnesses . **NOT ABSOLUTE- face to face is not required when preventing confrontation serves and important government purpose-insulating a child witness from testifying

Answer 17

Generally not allowed except: 1) When portions referring to the defendant can be eliminated 2) Confessing defendant takes the stand 3) Used to rebut the defendant’s claim that confession was obtained coercively

Answer 18

. State must prove beyond reasonable doubt . May shift burden for affirmative defenses

Answer 19

. Must be voluntary and intelligent and be on record . Judge must tell: maximum possible sentence, mandatory minimums, waiving rights to appeal, and has the right not to plead guilty . Judge does not have to accept plea

Answer 20

. Right to counsel during sentencing . DP: 1) Murder: jury makes determination of death penalty and all mitigating evidence 2) Rape or Felony Murder: prohibits imposition of DP if the rape was neither intended to result in death or did result in death 3) Sanity is required even at trial, no DP for minors

Answer 21

. No right to appeal Collateral attack on conviction . Indigent has no right to counsel in Habeas . Petitioner has burden of proof by preponderance of the evidence . Civil action Rights During Punishment . Revocation of probation gets counsel unless the sentence is just imposed, then only if representation is necessary to a fair hearing Prisoner Rights . DP: regulations impinge if they impose a atypical and significant hardship . No expectation of privacy in cells

Answer 22

. May not be retried for the same crime under 5th . Attachment: . Jury: empaneling and swearing in of jury . Bench: first witness sworn . Juvenile: commencement . Civil- does not attach except for juvenile . **Exceptions: . Hung jury in state trial . Manifest necessity to abort original trial *Medical emergency . May retry if there has been a successful appeal unless the ground for reversal was insufficient evidence , based on the weight of evidence but not retried for a higher crime . Breach of plea bargain . Could have multiple charges in a single trial but d wants them separately . Same Offense . When two crimes are not the same offense unless each crime requires proof of an additional element the other does not require- even though some of the same facts may prove both crimes . Lesser included offenses: bars retrial for a greater offense bars retrial for lesser included offense unless, there is new evidence if unlawful conduct that is subsequently used to prove the greater offense that 1) has not occurred a the time of prosecution for the lesser offense or 2) has not been discovered despite due diligence . Separate Sovereigns . Same conduct can be tried for federal and state, or by 2 different states, or 2 different federal tribunals . **Can try d for same offense, do not let them distract you with attachment, it does not matter bc different sovereigns . **Municipalities are part of state so state and municipality cannot try the d

Answer 23

. Can be asserted by anyone in any type of case, only people not corporations . Privilege is personal so may be asserted when it might incriminate them . Must invoke privilege in civil to prevent being waived later in criminal prosecutions . Defendant has right to not to take witness stand . Witness must be sworn in and listen to question, then invoke . **Being required to give one’s name during a Terry stop does not violate the 5th amendment . Scope: protects only testimonial evidence not real or physical evidence- voice, hair, cheek swab . Compulsion of documents: must comply is not testimonial evidence . Occurs when person’s compelled statements are used against them in criminal court . Prosecutor cannot comment on defendant’s silence at time of arrest or during trial, only if d says they were not even allowed to defend themselves in closing and silence before the miranda can be used against them- but then apply harmless error test

Answer 24

. No right to trial by jury . If court adjudicates, jeopardy has attached and cannot be tried as an adult

Answer 25

. Excessive fines clause only applies to fines imposed as punishment, not civil fines . Monetary forfeitures are not subject to 8th amendment