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criminal procedure Flashcards

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1
Q

when can a judge enhance a sentence without a specific jury finding

A

*three strike rule
*statute gives wide discretion on time period
*prior criminal convictions

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2
Q

when does double jeopardy attach

A

*jury trial: when jury sworn in
*bench trial: when first witness sworn in

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3
Q

when is retrial allowed

A

*the conviction was reversed for a reason other than insufficient evidence
*mistrial occurs and manifest necessity is found

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4
Q

when does double jeopardy apply

A

*prosecution after convicted of same offense
*prosecution after acquitted of same offense
*multiple prosecutions or punishments for the same offense

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5
Q

test for same offense

A

Blockburger test: lesser included offense? different elements required?

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6
Q

when does double jeopardy not apply

A

*multiple victims
*separate jurisdictions
*multiple charges but not punishments

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7
Q

requirements for choice of counsel

A

*properly admitted in jurisdiction
*available for trial
*no conflict or other disqualifier

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8
Q

when is capital punishment constitutional (or not)

A

*the victim died

*under 18 when committed the crime
*have a cognitive impairment
*insane at execution

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9
Q

judicial responsibility

A

to remain impartial

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10
Q

prosecutorial responsibilities

A

*Brady doctrine
*can’t knowingly present false testimony
*can’t contact D outside of their counsel’s presence
*can’t comment on D’s failure to testify at trial

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11
Q

defense counsel responsibilities

A

*conflict of interest: no joint representation without court approval or prior representation of a witness
*effective assistance

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12
Q

two requirements for effective assistance of counsel

A

*their performance was reasonable conduct in the profession
*there was not a reasonable probability the result would be different if they had acted reasonably

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13
Q

what is the Crawford doctrine?

A

a testimonial statement of a third party is inadmissible if they are unavailable and D had no prior opportunity to cross-examine them

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14
Q

what is the Bruton doctrine?

A

D’s own statements are admissible against them (but not another defendant unless D is testifying)

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15
Q

what is the Brady docrine?

A

a prosecutor must turn over all material exculpatory evidence to D that (1) tends to show D is not guilty or (2) enables D to impeach the prosecutor’s witnesses

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16
Q

list of trial rights (5)

A

*right to speedy trial
*right to confront witnesses against
*right to jury trial
*right to public trial (unless their is a substantial risk of prejudice to D)
*right to compulsory process for own witnesses

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17
Q

types of removal in voir dire

A

*challenges for cause
*peremptory challenges

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18
Q

how charges are brought at the federal and state level

A

*fed: indictment through grand jury based on probable cause
*state: indictment or information based on probable cause

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19
Q

test for D’s competency

A

does D understand the nature of the proceedings and is able to assist their lawyer?

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20
Q

when must D prove they are competent?

A

*to stand trial
*to plea guilty
*to waive the right to a jury trial

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21
Q

what must a judge do for a guilty plea to be valid?

A

*inform D of their rights and ensure they understand
*inform D of the nature of the charges and essential elements
*inform D of the sentences possible
*inform D of any immigration consequences
*make sure their is a factual basis for the plea
*determine the plea is not the result of force, threat, or promises

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22
Q

key questions for determining whether a constitutional violation has occurred

A

*4A: search or seizure? probable cause? warrant or applicable exception?
*5A: D in custody? being interrogated? Miranda warnings given? invocation of rights? voluntary confession?
*6A: was D charged? at a critical stage?

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23
Q

define the exclusionary rule

A

evidence obtained in violation of the Constitution is inadmissible against the person whose rights were violated

24
Q

define the fruit of the poisonous tree doctrine

A

the exclusionary rule applies to evidence obtained as a result of the initial violation

25
Q

exceptions to the exclusionary rule

A

*failure to knock and announce
*inevitable discovery
*independent source
*attenuation in the causal chain
*good faith: reliance on a law or warrant that is later unconstitutional or found defective (not applicable if any intentional conduct occurred)
*negligence (kind of)

26
Q

what is required if a pre-indictment identification procedure is impermissibly suggestive?

A

clear and convincing evidence that D would’ve been identified even without the lineup

27
Q

when does the 5A privilege against self-incrimination apply?

A

to natural persons who make a testimonial statement to the government that would subject them to criminal liability

28
Q

if Miranda is violated, what is admissible?

A

*statement: only for impeachment
*resulting evidence: for anything

29
Q

if a statement is given involuntarily, what is admissible?

A

*statement: never
*resulting evidence: never

30
Q

elements for Miranda to apply

A

*custodial: arrested? reasonable person would not otherwise free to leave?
*interrogation: engaging in conduct that the police should know would elicit a response?

31
Q

invoking rights under Miranda

A

*must invoke the right to remain silent or to counsel explicitly
*once invoke the right to remain silent, police can only resume questioning after a substantial time has passed and they have provided the warning again
*once invoke the right to counsel, police cannot resume questioning until D has a lawyer present OR affirmatively initiates contact

32
Q

seven exceptions allowing a warrantless search

A

*exigent circumstances
*search incident to lawful arrest
*consent
*administrative search
*plain view
*stop and frisk
*cars
*special government exception (schools, prisons, routine booking)

33
Q

considerations for whether a search has occurred

A

*reasonable expectation of privacy?
*government intrusion?

34
Q

common areas where a reasonable expectation of privacy exists (vs. not)

A

*home, hotel room, car (kind of), office, luggage, curtilage

vs.

*garbage on the street, public street, open fields, abandoned property, financial records, inmate’s cell, conversations with undercover cops

35
Q

requirements for a valid search warrant

A

*issued by a neutral magistrate
*based on probable cause, supported by oath or affidavit, to believe the items are related to a crime
*description of the property and place to be searched with particularity

36
Q

what is allowed in a search incident to lawful arrest?

A

*search of the person and immediate surroundings to protect from weapons or danger OR to prevent the destruction or concealment of evidence

37
Q

requirements for a valid arrest warrant

A

*issued by a neutral and detached magistrate
*based on probable cause, supported by oath or affidavit the individual committed a particular crime
*identifies the person and offense

38
Q

when can an arrest be made in a dwelling?

A

*warrant
*exigent circumstances
*consent
*if in a third party’s dwelling, with a valid arrest warrant and search warrant

39
Q

when is a warrantless arrest allowed?

A

*any crime committed in the officer’s presence
*the officer has probable cause to believe the person committed a felony

40
Q

in a Terry stop, if an officer doesn’t have reasonable suspicion, is the evidence recovered admissible?

A

*yes if develop probable cause
*no if the initial stop and arrest are unlawful

41
Q

elements of seizure

A

*the use of physical force OR a show of authority that
*intentionally ends or restrains one’s freedom of movement

*would a reasonable person feel free to disregard the officer?

42
Q

types of seizures and burden to conduct

A

*stop and frisk: reasonable suspicion
*traffic stop: reasonable suspicion
*arrest: probable cause

43
Q

does an illegal arrest in a 3rd party’s home prevent prosecution?

A

no, not as long as the defendant was properly charged

44
Q

three circumstances for searching a 3rd party’s home for a defendant subject to an arrest warrant

A

*search warrant
*3rd party’s consent
*exigent circumstances

45
Q

when are general checkpoint stops allowed?

A

*based on neutral, articulable standards
*purpose closely related to cars

46
Q

when are checkpoints allowed for a special government need?

A

*stop’s primary purpose to apprehend an individual other than the car’s occupants
*stop significantly advances a public concern
*stop minimally interferes with 4A rights

47
Q

are Miranda warnings required when the defendant does not know the interrogator is a police officer?

A

no, not if the police officer is undercover

48
Q

definition of a “critical stage” for purposes of 6A

A

any event where the absence of counsel may prejudice the defendant’s right to a fair trial

49
Q

is testimony given under grant of immunity coerced?

A

yes, the statements are considered involuntary and therefore inadmissible

50
Q

statements made through grant of immunity are precluded from use in what type of cases?

A

criminal prosecution

51
Q

when does the 6A right to counsel attach before indictment (special circumstance)??

A

any uncharged crime that constitutes the same offense as the formally charged crime (Blockburger test)

51
Q

if the 6A right to counsel is violated, are the defendants statements admissible?

A

yes, but only for impeachment

51
Q

what happens when a defendant is denied the right to choose their own counsel?

A

automatic reversal of any decision

52
Q

when must a preliminary hearing to determine whether probable cause exists to hold D occur?

A

within 48 hours of arrest if not based on a grand jury indictment or arrest warrant

53
Q

three scenarios warranting exigent circumstances

A

*imminent threat that relevant evidence will be destroyed
*hot pursuit: suspect fleeing after felony has occurred
*emergency aid: immediate threat of harm to police/public

54
Q

who bears the burden of proving that D waived Miranda rights?

A

the prosecution

55
Q

for what types of appeals must an indigent D be provided counsel?

A

appeals as of right but not discretionary appeals

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