Criminal Procedure Flashcards
What is a seizure within the scope of the 4th Amendment? What constitutes a seizure?
Any EXERCISE OF CONTROL by a government agent over a person or thing is a seizure and so must be reasonable. A seizure occurs when, under the TOTALITY OF THE CIRCUMSTANCES, a reasonable person would feel that they were NOT FREE TO DECLINE the officer’s requests or otherwise TERMINATE the encounter.
- A reasonable person in this context is a bold person, not a timid one.
What is an arrest? What is required for a valid arrest to take place?
An arrest occurs when the police take a person into custody against their will for purposes of criminal prosecution or interrogation. An arrest must be based on probable cause—that is, trustworthy facts or knowledge sufficient for a reasonable person to believe that the suspect has committed or is committing a crime for which arrest is authorized by law. Probable cause is based on the totality of the circumstances.
Generally, when is a warrant required for an arrest?
A warrant generally is not required before arresting a person in a public place. However, police generally must have a warrant to effect a nonemergency arrest of a person in their home.
When may officers with a warrant enter a suspect’s home?
The officers executing a warrant may enter the suspect’s home only if there is reason to believe the suspect is within it.
When may police bring a suspect to the station for questioning or fingerprinting against the person’s will?
Police must have full probable cause for arrest to bring a suspect to the station for questioning or fingerprinting against the person’s will.
What effect does an unlawful arrest have on a criminal prosecution?
An unlawful arrest, by itself, has no impact on any subsequent criminal prosecution.
What are Terry Stops and how do they work?
The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (that is, not merely a hunch), they may detain a person for investigative purposes. If the police also have reasonable suspicion that the detainee is armed and presently dangerous, they may also frisk the detainee for weapons.
- Articulable facts are needed (more than a mere hunch, but less than the PC standard).
- Whether the police have reasonable suspicion depends on the totality of the circumstances.
What do informant tips need to support reasonable suspicion or probable cause?
When reasonable suspicion is based on an informant’s tip, there must be an indicia of reliability (including predictive information) to be sufficient.
What time limits apply to investigatory detentions?
Investigatory detentions (Terry Stops) are not subject to a specific time limit. The police must act in a diligent and reasonable manner in confirming or dispelling their suspicions.
- The police may ask the detained person to identify themself (that is, state their name) and generally may arrest the detainee for failure to comply with such a request.
- The detention will also turn into an arrest if during the detention other probable cause for arrest arises.
When may police stop an automobile?
Generally, police officers may stop a car if they have at least reasonable suspicion to believe that a law has been violated (same as with a person).
Does the use of police dogs count as a search?
During routine traffic stops, a dog sniff is not a search, so long as the police do not extend the stop beyond the time needed to issue a ticket or conduct normal inquiries. Moreover, in 2013 the Supreme Court held that during such a traffic stop, a dog “alert” to the presence of drugs can form the basis for probable cause for a search.
- NOTE: In 2013, the Supreme Court also held that the police (without probable cause) cannot use a drug sniffing dog outside of the home of a suspected drug dealer.
When a police officer has made a mistake of law that is relevant to determining the validity of a seizure, what result?
A police officer’s mistake of law (EX: mistakenly believing that a vehicle must have two working brake lights) does not invalidate a seizure as long as the mistake was reasonable.
In automobile stops involving multiple automobile occupants, what rights do occupants other than the driver have?
An automobile stop constitutes a seizure not only of the automobile’s driver, but also of any passengers as well. Thus, passengers have standing to raise a wrongful stop as a reason to exclude evidence found during the stop.
What are the rules for police roadblocks?
If the police set up a roadblock for purposes other than seeking incriminating information about the drivers stopped, the roadblock will be constitutional. If special law enforcement needs are involved, the Supreme Court allows police officers to set up roadblocks to stop cars without individualized suspicion that the driver violated some law. To be valid, the roadblock must: (1) Stop cars on the basis of some neutral, articulable standard (EX: every car) and (2) Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility (EX: DUI checkpoint).
When may an officer order car occupants out of the car during a stop? What if the officer believes that the occupants are armed?
After lawfully stopping a vehicle, in the interest of officer safety, the officer may order the occupants of the vehicle to get out.
- Moreover, if the officer reasonably believes the detainees are armed, the officer may frisk the occupants and search the passenger compartment for weapons, even after the officer has ordered the occupants out.
What result/restrictions when officers stop a car for a traffic violation but have an ulterior motive (i.e., suspect another crime)?
If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop.
What is the general framework for a 4A evidentiary search or seizure?
(1) Is there governmental conduct?
(2) Is there standing?
(3) Is there a valid warrant?
(4) Is there an exception to the warrant requirement?
What is governmental conduct for 4A purposes?
For 4A purposes, governmental conduct is police officers, other government agents, or private individuals acting at the direction of the public police. It does
not protect against searches by privately paid police unless they are deputized as officers of the public police (power to arrest).
What is required to establish standing for 4A purposes?
There are two ways in which searches and seizures can implicate an individual’s 4A rights: (1) search or seizure by a government agent of a constitutionally protected area in which the individual had a reasonable expectation of privacy (with respect to the place searched or item seized); or (2) physical intrusion by the government into a constitutionally protected area to obtain information.
- Determination made based on the TOTC.
When a person holds objects out to the public, what effect for 4A purposes?
A person does not have a reasonable expectation of privacy in objects held out to the public. Generally, this includes information in the hands of third parties (such as bank account records).
- However, a person does have a reasonable expectation of privacy in their cell-site location information (that is, personal location information derived from cell phone usage data) which is stored in the hands of third parties.
When does a person have a reasonable expectation of privacy for 4A purposes?
(1) The person owned or had a right to possess the place searched.
(2) The place searched is the person’s home.
(3) The person is an overnight guest of the place’s owner.
- These create an automatic right of privacy.
(4) The person owns the property seized.
- If a person owns the property seized, they have standing only if they have a reasonable expectation of privacy in the item or area searched.
Provide a list of things in which an individual has no right to privacy in.
Sound of your voice; style of your handwriting; paint on the outside of car; account records held by the bank; location of car on a public street or driveway (NOTE: the installation of a GPS device on a suspect’s car constitutes a search within the 4A–need to physically tail); anything that can be seen across the open fields; anything that can be seen from flying over public airspace; odors emanating from your luggage or car; and garbage set out on the curb for collection.
What restrictions are there on sense-enhancing technology that police can use for purposes of 4A searches?
Use of sense-enhancing technology that is not in general public use (for example, a thermal imager as opposed to a telephoto camera lens) to obtain information from inside a suspect’s home that could not otherwise be obtained without physical intrusion violates the suspect’s legitimate expectation of privacy. And police officers may not covertly and trespassorily place a GPS tracking device on a person’s automobile without a warrant.
What is required for a valid search warrant?
(1) Probable Cause
- A warrant will be issued only if there is probable cause to believe that a crime has been committed (arrest) and/or that seizable evidence from that crime (search) will be found on the person or premises at the time the warrant is executed. Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to make a determination of probable cause independent of the officers’ conclusions.
- An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the INFORMANT’S RELIABILITY, the TIP’S VERACITY, and the INFORMANT’S BASIS FOR KNOWLEDGE are relevant factors in making this determination. Note that the informer’s identity generally need not be revealed.
(2) Particularity
- A warrant must describe with particularity the place to be searched and the items to be seized (even if the underlying affidavit does so).
- A warrant can be antipatory (evidence/person need not be there at the time the warrant is issued).
(3) Neutral and Detached Magistrate
- The magistrate who issues the warrant must be neutral and detached (for example, a state attorney general is not neutral).
Can warrants be used to search the homes of third-party non-suspects?
Yes. A warrant may be obtained to search premises belonging to non-suspects, as long as there is probable cause to believe that evidence will be found there.
How must a warrant be executed?
Only police may execute a warrant. No 3d party may be present unless they are used to identify stolen property. Police must knock and announce.
- Violations of the knock and announce rule will not result in the suppression of evidence
During the execution of a search warrant, can police search people found on the premises but not named in the search warrant? (or to follow, detain, and search persons who left before the warrant was executed?)
A warrant to search for contraband authorizes the police to detain occupants of the premises during a search, but a search warrant does not authorize the police to search persons found on the premises who were not named in the warrant.
- Neither does the warrant give officers authority to follow, stop, detain, and search persons who left the premises shortly before the warrant was executed.
What is a Search Incident to a Lawful Arrest?
Incident to a constitutional arrest (that is, one based on probable cause to believe a law has been violated and that meets other constitutional requirements), the police may search the person and areas into which they might reach to obtain weapons or destroy evidence.
- The police may also make a protective sweep of the area if they believe accomplices may be present. The search must be contemporaneous in time and place with the arrest, but, at least with respect to searches of automobiles, the term “contemporaneous” does not necessarily mean “simultaneous.”
- If an arrest is unconstitutional, any search incident to that arrest is also unconstitutional.
What can be searched during a SILA seach?
The person and the areas within the person’s wingspan.
When and how may police search an automobile during a SILA search?
The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search: The arrestee is unsecured and still may gain access to the interior of the vehicle; OR The police reasonably believe that evidence of the offense for which the person was arrested may be found in the vehicle.
When is a suspect an arrestee?
When the officer tells them that they’re under arrest and attempts to restrain them (EX: w/ handcuffs). (???)
What analysis when considering searches involving technologies that didn’t exist at the time of the constitution?
In assessing the validity of a search incident to arrest involving things that did not exist when the 4A was adopted (for example, cell phones, blood alcohol tests), the court will balance the degree to which the search incident to arrest intrudes upon a person’s privacy against the degree to which the search is needed to promote legitimate governmental interests.
When a suspect is arrested, how can they treat a cell phone for search 4A search purposes?
The physical attributes of a cell phone may be searched, but not the data.
What kind of searches may be made of a suspect subsequent to their incarceration or the car’s impoundment?
At the police station, the police may make an inventory search of the arrestee’s belongings pursuant to established department procedure. Similarly, the police may make an inventory search of an impounded vehicle (and can search any containers within the vehicle).
What is the automobile exception to the 4A warrant requirement?
PC THAT THERE IS ILLEGAL ACTIVITY WITHIN THE CAR. If the police have probable cause to believe that a vehicle contains fruits, instrumentalities, or evidence of a crime, they may search the whole vehicle (including the trunk) and any closed container that might reasonably contain the item for which they had probable cause to search.
- If a warrantless search of a vehicle is valid, the police may tow the vehicle to the station and search it later. However, if the vehicle is parked within the curtilage (for example, the driveway) of a suspect’s home, the police may not search the vehicle without a warrant.
- If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place without a warrant.
- The PC necessary to justify the warrantless search of an auto under the automobile exception can arise after the car is stopped, but the probable cause must arise before anything or anybody is searched.
What is the Plain View exception to the 4A warrant requirement?
The police may make a warrantless seizure when they: (1) are legitimately on the premises; (2) discover evidence, fruits or instrumentalities of crime, or contra
band; (3) see such evidence in plain view; and (4) have PC to believe (it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime.
What is the Consent exception to the 4A warrant requirement?
A warrantless search is valid if the police have a voluntary consent. Knowledge of the right to withhold consent is not a prerequisite to establishing a voluntary consent.
- The scope of the search may be limited by the scope of the consent, but it generally extends to all areas to which a reasonable person under the circumstances would believe it extends.
- Police saying that they have a warrant negates consent.
Who has authority to consent to a search of an abode and when can they provide this consent? What does the interplay between co-occupants look like?
Any person with an apparent equal right to use or occupy the property may consent to a search, and any evidence found may be used against the other owners or occupants.
However, an occupant cannot give valid consent to a search when a co-occupant is present and objects to the search and the search is directed against the co-occupant. Nevertheless, if a co-occupant has objected to a search and is removed for a reason unrelated to the refusal (for example, a lawful arrest), the police may act on the consent of the remaining occupant, even if the removed co-occupant had refused consent.
What is required for a Terry Stop and Frisk? What may an officer ask of the suspect?
A police officer may stop a person without PC for arrest if they have an articulable and reasonable suspicion of criminal activity. The officer may require the detainee to state their name, and if the officer also reasonably believes that the person may be armed and presently dangerous, the officer may conduct a protective frisk.
What is the permissible scope of a Terry Frisk?
The scope of the frisk is generally limited to a pat down of outer clothing, unless the officer has specific information that a weapon is hidden in a particular area of the suspect’s clothing.
- During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its “plain feel,” is a weapon or contraband, and such items are admissible as evidence.
Does “manipulated” fall into the “plain feel” meaning for Terry Frisk purposes?
No.
What options does an officer have if a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous?
If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may: (1) conduct a frisk of the suspected person, and (2) search the vehicle, so long as it is limited to the areas in which a weapon may be placed.
What is the Evanescent Evidence exception to the 4A warrant requirement?
Evanescent evidence is evidence that might disappear quickly if the police took the time to get a warrant. Officers may obtain evanescent evidence (not blood draw though) if it’s practical to do so.
What is the Hot Pursuit exception to the 4A warrant requirement?
Police in hot pursuit of a fleeing felon may make a warrantless search and seizure and may even pursue the suspect into a private dwelling.
- 15 minutes behind is not hot pursuit.
- Fleeing Felon? If the fleeing person is suspected of a misdemeanor, their flight does not always justify a warrantless entry into a home. The officer must consider all the circumstances to determine whether there is a law enforcement emergency that justifies a warrantless entry.
- If the police are truly in hot pursuit of a felon, they can enter anyone’s home without a warrant, and any evidence they see in plain view will be admissible.
What is the Emergency Aid / Community Caretaker exception to the 4A warrant requirement?
A police officer may enter premises without a warrant if the officer faces an emergency that threatens the health or safety of an individual or the public.
What is required for public school searches? What limitations apply to the appropriateness of a search?
A warrant or probable cause is not required for public school officials to search public school students or their possessions; only reasonable grounds for the search are necessary.
A school search will be held to be reasonable only if: (1) It offers a moderate chance of finding evidence of wrongdoing; (2) The measures adopted to carry out the search are reasonably related to the objectives of the search; and (3) The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction.
What are the rules regarding wiretapping for 4A purposes? What rules apply when a suspect engages in conversations with others?
Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes a search under the Fourth Amendment. A valid warrant authorizing a wiretap may be issued if (1) there is showing of probable cause, (2) the suspected persons involved in the conversations to be overheard are named, (3) the warrant describes with particularity the conversations that
can be overheard, (4) the wiretap is limited to a short period of time, (5) the wiretap is terminated when the desired information has been obtained, and (6) return is made to the court, showing what conversations have been intercepted.
- FALSE FRIEND + UNINVITED EAR: A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation or is an informer wired for sound or taping the conversation. A speaker has no Fourth Amendment claim if they make no attempt to keep a conversation private.
How is voluntariness determined for the purpose of confessions?
For a self-incriminating statement to be admissible under the Due Process Clause, it must be voluntary, as determined by the totality of the circumstances.
- The Harmless Error Test applies. The conviction need not be overturned if there is overwhelming evidence of guilt.
What rights does the 6A provide?
The 6A right to counsel applies to all CRITICAL STAGES of prosecution after judicial proceedings have begun (EX: formal charges have been filed).
- The 6A prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after the defendant has been charged unless the defendant has waived their right to counsel.
To what charges do 6A rights apply?
The 6A right to counsel is offense specific. Thus, even though a defendant’s 6A rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding unrelated, uncharged offenses without violating the Sixth Amendment right to counsel (although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda).
- Two offenses will be considered different if each requires proof of an additional element that the other crime does not require.
May 6A rights be waived? If so, what is the standard for such a waiver?
The 6A right to counsel may be waived. The waiver must be knowing and voluntary.
- The waiver does not necessarily require the presence of counsel (at least if counsel has not actually been requested by the defendant but rather was appointed by the court).
What are the remedies for 6A violations?
At non-trial proceedings (such as post-indictment interrogations), the HARMLESS ERROR rule applies to deprivations of counsel.
But if the defendant was entitled to a lawyer at trial, the failure to provide counsel results in automatic REVERSAL OF THE CONVICTION, even without a showing of specific unfairness in the proceedings. Similarly, erroneous disqualification of privately retained counsel at trial results in automatic reversal.
How may a statement obtained in violation of a suspect’s 6A right to counsel be used?
A statement obtained in violation of a defendant’s 6A right to counsel, while not admissible in the prosecution’s case-in-chief, may be used to impeach the defendant’s contrary trial testimony. This rule is similar to the rule that applies to Miranda violations.
When are Miranda warnings required?
Miranda warnings are required when a suspect is in custodial interrogation (in custody and accused of a crime). Miranda warnings are necessary only if the detainee knows that they are being interrogated by a government agent.
- NOTE: The Miranda requirements do not apply to an uncharged witness testifying before a grand jury, even if the witness was compelled by subpoena to be there.
What substance is required to make Miranda warnings proper?
For an admission or confession to be admissible under the 5A privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that: (1) The person has the right to remain silent; (2) Anything the person says can be used against them in court; (3) The person has the right to presence of an attorney; and (4) If the person cannot afford an attorney, one will be appointed for them if they so desire.
How is custody determined for 5A purposes? How is interrogation determined for 5A purposes?
(1) A reasonable person would not feel free to terminate the interrogation and leave.
- TOTC.
- Does the environment present the same inherently coercive pressures as a station house questioning?
(2) “Interrogation” includes any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.
- Miranda warnings not required before spontaneous statements.
- NOTE: routine booking questions do not constitute interrogation.
What rights does a detainee have after receiving their Miranda warnings?
After receiving Miranda warnings, a detainee has several options: do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.
What assumptions apply when a detainee does nothing after receiving their Miranda warnings?
If the detainee does not respond at all to Miranda warnings, the Court will not presume a waiver, but neither will the Court presume that the detainee has asserted a right to remain silent or to consult with an attorney. Therefore, the police may continue to question the detainee.
How may a detainee waive their 5A rights?
The detainee may waive their rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was knowing and voluntary.
- TOTC used.
- It appears that if the government can show that the detainee received Miranda warnings and then chose to answer questions, that is probably sufficient.
How must a detainee invoke their right to remain silent? What result when they do so?
The invocation of the right to remain silent must be unambiguous.
The police must scrupulously honor the request by not badgering the detainee.
How must a detainee invoke their right to an attorney? What result when they do so?
The invocation of the right to an attorney must be unambiguous. When properly invoked, ALL QUESTIONING MUST CEASE until counsel has been provided unless the detainee (1) waives the right to counsel OR (2) is released back to normal life and 14 days have passed since release.
- If silence invoked, can question about another time. If counsel requested, the police may not resume interrogating the detainee until counsel is provided or the detainee initiates the questioning, EVEN IF THEY’RE QUESTIONING ABOUT ANOTHER OFFENSE.
What are the effects of a Miranda violation?
Evidence is generally inadmissible. However, the statements may be used to impeach D’s trial testimony (but not used as evidence of guilt).
If the detainee gives the police information that leads to non-testimonial evidence, then the evidence is suppressed if the failure to give Miranda warnings was purposeful but will likely be admitted if the failure was not purposeful.
What is the Public Safety exception to the 5A?
The police can interrogate without Miranda warnings when they are reasonably prompted by a concern for public safety.
When can a defendant attack an identification?
A defendant can attack an identification if it is UNNECESSARILY SUGGESTIVE and if there is a SUBSTANTIAL LIKELIHOOD of misidentification.
What is the remedy for unconstitutional identifications? Exceptions?
The remedy for unconstitutional identifications is exclusion of the in-court identification.
- Can’t bring the person into court to testify.
EXCEPTION: The witness may make an in-court identification if it has an independent source (something else providing the witness with knowledge).
When should hearings on the admissibility of identification evidence occur? What requirements apply regarding juries and admission of the evidence?
Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but exclusion of the jury is not constitutionally required. The government bears the burden of proving that: (1) counsel was present; (2) the accused waived counsel; or (3) there is an independent source for the in-court identification. The defendant must prove an alleged due process violation.
What is the Exclusionary Rule? What is the Fruit of the Poisonous Tree doctrine under the Exclusionary Rule)?
When evidence is unconstitutionally obtained, the evidence is excluded from trial.
Evidence obtained from the exploitation of unconstitutionally obtained evidence is excluded at trial.
What are the exceptions to the Exclusionary Rule and the Fruit of the Poisonous Tree doctrine?
- Fruits derived from statements in violation of Miranda are okay.
- Evidence obtained from an independent source makes the evidence okay.
- Attenuation: Causal link between the police misconduct and the evidence is broken–makes the evidence okay.
- D’s intervening act of free will makes the evidence okay.
- Inevitable discovery makes the evidence okay.
- Violations of the Knock and Announce rule have no bearing on the ER.
What are the 3 I’s of break the chain for Exclusionary Rule purposes?
Make evidence admissible at trial:
- Independent source.
- Intervening act of free will (of D).
- Inevitable discovery.
What exceptions to the Good Faith exception to the Exclusionary Rule are there?
The exclusionary rule does not apply when the police arrest someone erroneously but in good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law. The exceptions to Good Faith Reliance on a defective warrant are as follows:
(1) The affidavit is so lacking in PC so that no reasonable officer would rely on it.
(2) The affidavit underlying the warrant is so lacking in particularity that no reasonable officer would have relied on it.
(3) The police officer or prosecutor lied to or misled the magistrate when seeking the warrant.
(4) The magistrate is biased and therefore has wholly abandoned their neutrality.
What is the rule for excluding evidence on appeal?
If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was harmless. The conviction will be upheld if it would have resulted despite the improper evidence. In a habeas proceeding where the petitioner claims constitutional error, the petitioner should be released if they can show that the error had a substantial and injurious effect or influence in determining the jury’s verdict; if the judge is in grave doubt as to the harm, the petition must be granted.
- NOTE: The harmless error standard never applies to the denial of the right to counsel at trial; this error is never harmless.
What are the rules for Grand Jury Proceedings?
- Conducted in secret.
- D has no right to notice.
- No right to counsel.
- No right to have evidence excluded (even if unconstitutionally obtained).
- No right to challenge subpoena on 4A grounds.
- Conviction from indictment issued by grand jury from which minority group was excluded will be reversed.
What are the factors used to determine whether the right to a speedy trial (6A) has been violated? What is the remedy for violation?
LRWP.
- Length of delay.
- Reason for delay.
- Whether D asserted the right.
- Prejudice to D.
Remedy is dismissal with prejudice.
When is the failure to disclose evidence grounds for reversing a conviction?
The failure to disclose material, exculpatory evidence is grounds for reversing a conviction if (1) the evidence is favorable to D and (2) prejudice has resulted (result of trial may have been different).
- Even inadvertent failure to disclose can result in reversal.
When does D have a right to a jury trial?
There is no constitutional right to jury trial for petty offenses, but only for serious offenses. An offense is serious if imprisonment for more than six months is authorized.
- NOTE: There is no right to jury trial in juvenile delinquency proceedings.
What number of jurors is needed? What number is needed for a verdict?
A jury must be composed of at least 6 people and the verdict must be unanimous.
When may peremptory challenges be used?
Generally, peremptory challenges may be used for any reason. However, you cannot challenge jurors solely on the basis of race or gender.
When may a juror be excluded for cause?
A juror should be excluded for cause if the juror’s views would prevent or substantially impair performance of their duties.
What result when there is a violation of the right to counsel at trial?
A defendant has a right to counsel. Violation of this right at trial, including erroneous disqualification of the defendant’s privately retained counsel, requires reversal. For non-trial denials, the harmless error test is applied.
What is needed to establish that D had ineffective assistance of counsel?
The 6A right to counsel includes the right to effective counsel. This right extends to the first appeal. Effective assistance of counsel is generally presumed. To establish ineffective assistance of counsel, it must be shown that (1) there was a deficient performance by counsel (specific deficiencies) and (2) but for the deficiency, the result of the proceeding would have been different.
- If counsel admits D’s guilt, this error mandates a new trial.
What is D’s basic confrontation clause right?
The 6A grants to a defendant in a criminal prosecution the right to confront adverse witnesses. The right is not absolute: Face-to-face confrontation is not required when preventing such confrontation serves an important public purpose (for example, protecting child witnesses from trauma). Also, a judge may remove a
disruptive defendant, and a defendant may voluntarily leave the courtroom during trial.
May a co-defendant’s confession be admitted against the other defendant?
If two persons are tried together and one has given a confession that implicates the other, the right of confrontation prohibits use of that statement, even where the confession interlocks with the defendant’s own confession, which is admitted. However, such a statement may be admitted if:
(1) All portions referring to the other defendant can be eliminated,
(2) The confessing defendant takes the stand and subjects themself to cross-examination with respect to the truth or falsity of what the statement asserts; OR
(3) The confession of the non-testifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively.
Is prior testimonial evidence admissible in a criminal trial?
Per the confrontation clause, prior testimonial evidence is not admitted unless: (1) the declarant is unavailable AND (2) the defendant had the opportunity to cross-examine the declarant at the time the statement was made.
What is the burden of proof in a criminal trial?
The state must prove guilt beyond a reasonable doubt. The burden may be on D to prove affirmative defenses. A presumption that shifts the burden of proof to D violates the 14A.
What jury instructions may a judge give?
A judge is to give a jury instruction requested by the defendant or the prosecution if the instruction is correct, has not already been given, and is supported by sound law.
What are the requirements for allowing a guilty plea?
The guilty plea must be voluntary and intelligent. This must be done by addressing the defendant personally in open court on the record. Specifically, the judge must be sure that the defendant knows and understands things such as:
- The nature of the charge to which the plea is offered and the crucial elements of the crime charged;
- The maximum possible penalty and any mandatory minimum; and
- That the defendant has a right not to plead guilty and that if they do plead guilty, they waive the right to trial.
NOTE: The judge need not personally explain the elements of each charge to the defendant on the record; it is sufficient that the record reflects that the nature of the charge and the elements of the crime were explained to the defendant by their own counsel.
What are the reasons to set aside a plea?
(1) involuntariness (failure to meet standards for taking a plea), (2) lack of jurisdiction, (3) ineffective assistance of counsel, or (4) failure to keep the plea bargain.
Must a judge accept D’s plea bargain?
A plea bargain will be enforced against the prosecutor and the defendant, but not against the judge, who does not have to accept the plea.
What result when the prosecutor threatens to bring harsher charges if D doesn’t settle?
A guilty plea is not involuntary merely because it was entered in response to the prosecution’s threat to charge the defendant with a more serious crime if they do not plead guilty. There is no prosecutorial vindictiveness in charging a more serious offense when defendant demands a jury trial.
Does D have a right to counsel during sentencing?
Yes. D has a right to counsel during sentencing.
What are the basic death penalty rules?
The death penalty must be imposed under a statutory scheme that gives the jury reasonable discretion, full information, and guidance.
- No death penalty for rape if it wasn’t intended to result in or didn’t result in death.
- Cannot execute a prisoner who is insane at the time of the execution.
- No death penalty for a person who is intellectually disabled.
- No death penalty for someone under 18 at the time of the offense.
- No constitutional right to appeal.
What rights and burdens apply for a habeas corpus proceeding?
- No right to appointed counsel.
- Petitioner has the burden of proof to show unlawful detention by a preponderance of the evidence.
- Petitioner must be in actual custody.
- Must exhaust other appeals before getting into a habeas proceeding.
When do prison regulations impinge on due process rights?
Prison regulations impinge on due process rights only if they impose atypical and significant hardship in relation to the ordinary incidents of prison life.
- No 4A rights in prisoner’s cell.
- Prisoners must have reasonable access to courts.
When does jeopardy attach?
Jeopardy attaches in a jury trial with the empaneling and swearing of a jury. For a bench trial, it attaches when the first witness is sworn.
What are exceptions permitting retrial despite jeopardy having attached?
- The first trial ends in a hung jury.
- Manifest necessity to abort the first trial (EX: medical emergency).
- D successfully appealed the conviction (unless ground for reversal was insufficient evidence).
- D breached the plea bargain.
- D could have been tried for multiple charges in a single trial but chose to have the charges tried separately.
When are two crimes the same offense for double jeopardy purposes?
Two crimes are the same offense unless each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.
Does double jeopardy bar a retrial following a mistrial ruling?
As a general rule, the right to be free of double jeopardy for the same offense bars a retrial for the same offense once jeopardy has attached in the first trial.
- One of the exceptions permitting retrial even if jeopardy has attached is when a mistrial is granted in the first trial at the request of the defendant on any ground not constituting an acquittal on the merits.
What result in double jeopardy when, on retrial, the prosecution seeks to prosecute on a claim more serious than that for which the defendant was convicted at the first trial?
The Double jeopardy clause prohibits retrying a defendant whose conviction has been reversed on appeal for any offense MORE SERIOUS than that for which he was convicted in the first trial.
How does the attachment of jeopardy affect lesser and greater offenses?
When elements are the same–the lesser’s elements being fully included in the greater’s elements–either the greater or smaller defense (EX: larceny or robbery) needs to be chosen by the prosecution.
- Attachment of jeopardy for greater offense bars retrial for lesser included offense.
- Attachment of jeopardy for lesser included offense bars retrial for greater offense.
Can separate sovereigns try the exact same case, or does this violate double jeopardy?
They can try the same case.
- State and Fed gov separate.
- Different states separate.
- State and municipalities NOT separate!
Who may assert the privilege against self-incrimination?
Privilege against self-incrimination can be asserted by any person in any type of case when the answer to a question might tend to incriminate them.
When may the privilege against self-incrimination be asserted?
A person may refuse to answer a question whenever their response might furnish a link in the chain of evidence needed to prosecute them. The privilege must be claimed in civil proceedings to prevent the privilege from being waived for a later criminal prosecution. Thus, if an individual responds to questions instead of claiming the privilege during a civil proceeding, they cannot later bar that evidence from a criminal prosecution on compelled self-incrimination grounds.
What comments may be made about a defendant’s silence?
A prosecutor may not comment on a defendant’s silence after being arrested and receiving Miranda warnings. Neither may the prosecutor comment on a defendant’s failure to testify at trial. However, a defendant, upon timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from the defendant’s failure to testify. Moreover, the judge may offer this instruction sua sponte, even over the defendant’s objection.
How is the situation analyzed when a prosecutor impermissibly comments on a defendant’s silence?
When a prosecutor impermissibly comments on a defendant’s silence, the harmless error test applies.
In a lineup proceeding, when does the accused have the right to have his/her counsel present after they’ve been charged?
As soon as the accused is in sight of the identification witnesses.
How is the Miranda exception to the Fruit of the Poisonous Tree doctrine analyzed?
If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession will be inadmissible if the “question first, warn later” nature of the questioning was intentional (that is, the facts make it seem like the police USED THIS AS A SCHEME TO GET AROUND MIRANDA REQUIREMENTS).
However, a subsequent valid confession may be admissible if the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.
Is a judge required to raise the issue of competency when a party is acting in a way that indicates incompetency?
If it appears to the judge that a party might be incompetent, the judge has a constitutional obligation to conduct further inquiry and determine whether in fact the party is incompetent.
When a suspect asks for an attorney at a proceeding against him, which of the 5th and/or 6th amendments does this invoke?
This invokes only the 6th amendment. Courts will not infer that the suspect is invoking his 5th amendment (non-offense specific) right to counsel in such a scenario.
What is admitted when a defendant enters a guilty plea, to what degree are fourth amendment claims waived in a subsequent civil damages action?
“A defendant’s guilty plea neither admits the legality of the incriminating search not waives fourth amendment claims in a subsequent civil damages action challenging the legality of the incriminating search.”
If the right to counsel has been denied in a misdemeanor case, when does this result in a violation of the 6A?
If they receive prison time, their right has been violated.
