Criminal Procedure

Question 1

The Constitution provides the ___ of protection for criminal defendants. States are free to grant greater protection, and many do

Answer 1

floor

Question 2

The first eight amendments to the U.S. Constitution apply to the federal government. Most of these rights are applicable to the states through the ____

Answer 2

Due Process Clause of the Fourteenth Amendment.

Question 3

The right to ___ has been held not to be binding on the states. It has not yet been determined whether the ____.

Answer 3

indictment by a grand jury for capital and infamous crimes

Eighth Amendment prohibition against excessive bail creates a right to bail (However, most state constitutions create a right to bail and prohibit excessive bail.)

Question 4

The Fourth Amendment provides that people should be free from ____

Answer 4

unreasonable searches and seizures.

Question 5

___ by a government agent over a person or thing is a seizure.

Answer 5

Any exercise of control

Question 6

Governmental seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and so must be ____

Answer 6

reasonable.

Question 7

A seizure occurs when, under the totality of the circumstances, ____

Answer 7

a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter

Question 8

An arrest occurs when the police take a person into custody _____

Answer 8

against their will for purposes of criminal prosecution or interrogation.

Question 9

An arrest must be based on ____

Answer 9

probable cause

Question 10

PC for arrests is defined as

Answer 10

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.

Question 11

A warrant generally is not required before arresting a person in _____. However, police generally must have a warrant to effect a ____

Answer 11

a public place; nonemergency arrest of a person in their home.

Question 12

The officers executing an arrest warrant may enter the suspect’s home only if ____

Answer 12

there is reason to believe the suspect is within it.

Question 13

Police must have full probable cause for arrest to bring a suspect to the station for ____

Answer 13

questioning or fingerprinting against the person’s will.

Question 14

An unlawful arrest, by itself, has ____ sequent criminal prosecution.

Answer 14

no impact

Question 15

The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a ___

Answer 15

reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (based on TOC)

Question 16

For a Terry Stop the police may detain a person for ____

Answer 16

investigative purposes

Question 17

If the police also have reasonable suspicion that the detainee is ____, they may frisk the detainee for weapons.

Answer 17

armed and dangerous

Question 18

When reasonable suspicion is based on an informant’s tip, there must be an ____ to be sufficient.

Answer 18

indicia of reliability (including predictive information)

Question 19

Investigatory stops are not subject to a specific time limit. The police must act in a ____

Answer 19

diligent and reasonable manner in confirming or dispelling their suspicions.

Question 20

During a Terry Stop the police may ask the detained person to ____ (that is, state their name) and generally may ___ the detainee for failure to comply with such a request.

Answer 20

identify themself; arrest

Question 21

Brief ____ seizures are similarly valid if based on reasonable suspicion (Terry)

Answer 21

property

Question 22

Generally, police officers may stop a car if they have ____

Answer 22

at least reasonable suspicion to believe that a law has been violated.

Question 23

During routine traffic stops, a dog sniff is ____, so long as the police do not ____

Answer 23

not a search; extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.

Question 24

The Supreme Court held that during such a traffic stop, a dog “alert” to the presence of drugs can ____

Answer 24

form the basis for probable cause for a
search.

Question 25

The Supreme Court held that the police
(without probable cause) cannot use a drug sniffing dog ____

Answer 25

outside of the home of a suspected drug dealer.

Question 26

A police officer’s mistake of law does not invalidate
a seizure as long as the mistake was ____.

Answer 26

reasonable

Question 27

An automobile stop constitutes a seizure of ____

Answer 27

the automobile’s driver and any passengers as well.

Question 28

If the police set up a roadblock for purposes ____, the roadblock will be constitutional.

Answer 28

other than seeking incriminating information about the drivers stopped

Question 29

If ____ 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.

Answer 29

special law enforcement

Question 30

To be valid, the roadblock must:

Answer 30

• Stop cars on the basis of some neutral, articulable standard (for example, every car) and
• Be designed to serve purposes closely related to a particular problem pertaining to automobiles and their mobility

Question 31

A roadblock to test for ____ is valid because of the pervasiveness of the driving problem, but a roadblock to s____ is not valid because the purpose of such a checkpoint is only to detect evidence of ordinary criminal wrongdoing.

Answer 31

drunk drivers; search cars for illegal drugs

Question 32

After lawfully stopping a vehicle, in the interest of officer safety, the officer may ____. Moreover,
if the officer reasonably believes the detainees are armed, the officer may ____, even after the officer has ordered the occupants out.

Answer 32

order the occupants of the vehicle to get out; frisk the occupants and search the passenger compartment for weapons

Question 33

If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if ____

Answer 33

their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop (pre-textual stop)

Question 34

If the police have probable cause to believe that a suspect has hidden drugs in their home, they may, ____ so that they can prevent the suspect from destroying the drugs while they obtain a search warrant.

Answer 34

for a reasonable time, prevent the suspect from going into the home unaccompanied

Question 35

A valid warrant to search for contraband allows the police to ____ during a proper search.

Answer 35

detain occupants of the premises

Question 36

There is a Fourth Amendment “seizure” when a police officer uses ___ to apprehend a suspect. Thus, an officer may not do this unless it is ____ to do so under the circumstances

Answer 36

deadly force; reasonable

Question 37

Like arrests, evidentiary searches and seizures must be reasonable to be valid under the Fourth Amendment, but here reasonableness requires ____

Answer 37

a warrant except in six circumstances.

Question 38

Evidentiary search and seizure issues should be approached using the following analytical model:

Answer 38

1 - is there governmental conduct
2- Is there standing (reasonable expectation of privacy)
3 - Is there a valid warrant (PC, particularity)
4 - if no warrant, exceptions to the warrant requirement

Question 39

The Fourth Amendment generally protects only against _____. It does not protect against searches by privately paid police unless they are ____

Answer 39

governmental conduct; deputized as officers of the public police.

Question 40

There are two ways in which searches and seizures can implicate an individual’s Fourth Amendment rights:

Answer 40

(1) search or seizure by a government agent of a constitutionally protected area in which the
individual had a reasonable expectation of privacy; or
(2) physical intrusion by the government into a constitutionally protected area to obtain information.

Question 41

To have a Fourth Amendment right, a person must have ____

Answer 41

their own reasonable expectation of privacy with respect to the place searched or the item seized.

Question 42

The determination of whether a person has a reasonable expectation of privacy is made on the totality of the circumstances, but a person has a reasonable expectation of privacy any time:

Answer 42

• The person owned or had a right to possession of the place searched
• The place searched was in fact their home, whether or not they owned or had a right to possession of it (for example, a grandchild
  living at a grandparent’s home); or
• The person was an overnight guest of the owner of the place searched

Question 43

There is an important “sometimes” category of standing: The person ____. In this context a person
has standing only if they have a reasonable expectation of privacy in the item or area searched.

Answer 43

owns the property seized

Question 44

A person does not have a reasonable expectation of privacy after telling someone to ____

Answer 44

throw something away

Question 45

A person does not have a reasonable expectation of privacy in objects held ____

Answer 45

out to the public (generally includes information in the hands of third parties)

Question 46

A person does have a reasonable expectation of privacy in their ____ which is stored in the hands of
third parties.

Answer 46

cell-site location information (that is, personal location information derived from cell phone usage data)

Question 47

The following is a list of things held out to the public, the seizure of which implicates no right to privacy:

Answer 47

(1) The sound of your voice
(2) The style of your handwriting
(3) The paint on the outside of your car
(4) Account records held by a bank
(5) The location of your car on a public street or in a driveway
(6) Anything that can be seen across the open fields
(7) Anything that can be seen from flying over public airspace
(8) The odors emanating from your luggage or car; and
(9) Garbage set out on the curb for collection

Question 48

Even though the location of acar on a public street is not entitled to a REP the Supreme Court held that ____ constitutes a search within the Fourth Amendment.

Answer 48

installation of a GPS device on a suspect’s car

Question 49

Use of sense-enhancing technology that is ____ violates the suspect’s legitimate expectation of privacy.

Answer 49

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

Question 50

There are two core requirements for a facially valid search warrant: (+ one more)

Answer 50

probable cause and particularity. +issued by neutral and detached magistrate

Question 51

A warrant will be issued only if there is probable cause to believe that seizable evidence will be found on the person or premises at the time ____

Answer 51

the warrant is executed.

Question 52

Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to ____

Answer 52

make a determination of probable cause independent of the officers’ conclusions.

Question 53

An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the informant’s _____ are relevant factors in making this determination. Note that the informer’s identity generally ____

Answer 53

reliability and credibility or their basis for knowledge; need not be revealed.

Question 54

A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:

Answer 54

• A false statement was included in the affidavit by the affiant (the officer applying for the warrant)
• The affiant intentionally or recklessly included the false statement; and
• The false statement was material to the finding of probable cause

–> This test for invalidating the affidavit is very restrictive—all three requirements for invalidity (falsehood, intentionally or recklessly included, and material to probable cause) must be met.

Question 55

Evidence obtained by the police _____ may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.

Answer 55

in reasonable reliance on a facially valid warrant

Question 56

The good faith exception to relying on a facially valid warrant applies only if the police
____. The exception does not apply if the police ____ a warrant.

Answer 56

obtained a warrant and it is invalid; failed to obtain

Question 57

A warrant must describe with particularity the ____. If it does not, the warrant is unconstitutional, even if ____

Answer 57

place to be searched and items to be seized; the underlying affidavit gives such detail.

Question 58

A warrant can predict when illegal items may be in a suspect’s home or office. The items need not be on the premises at the time ____

Answer 58

the warrant is issued.

Question 59

A warrant may be obtained to search premises belonging to nonsuspects, as long as there is ____

Answer 59

probable cause to believe that evidence will
be found there.

Question 60

The magistrate who issues the warrant must be ____

Answer 60

neutral and detached

Question 61

Requirements for executing a warrant

Answer 61

• Only the police (and not private citizens) may execute a warrant
• It must be executed without unreasonable delay
• Police must knock, announce their purpose, and wait a reasonable time for admittance (unless the officer has reasonable suspicion, based on facts, that announcing would be dangerous or futile or would inhibit the investigation)
• The police may not be accompanied by any third
  parties unless the third parties are present to aid in identifying stolen property.
• The scope of the search is limited to what is reasonably necessary to discover the items described in the warrant

Question 62

Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not ____

Answer 62

specified in the warrant

Question 63

Violations of the knock and announce rule will ____.

Answer 63

not result in the suppression of evidence otherwise properly obtained

Question 64

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 ____. Neither does the warrant give
officers authority to ____ the warrant was executed.

Answer 64

were not named in the warrant; follow, stop, detain, and search persons who left the premises shortly before (but if they have reasonable suspicion = Terry)

Question 65

Detentions are limited to persons in the ____ when the warrant is being executed.

Answer 65

immediate vicinity of the premises

Question 66

Exceptions to the warrant requirement.

Answer 66

1. Incident to constitutional arrest
2. Automobile search
3. Plain view
4. Consent
5. Stop and frisk
6. Hot pursuit, exigent circumstances, evanescent
   evidence, emergency aid

Question 67

All warrantless searches conducted by law enforcement officers are unconstitutional unless ____

Answer 67

they fit into one of six recognized exceptions to the warrant requirement.

Question 68

Incident to a constitutional arrest the police may ____.

Answer 68

search the person and areas into which they might reach to obtain weapons or destroy evidence.

Question 69

Incident to a constitutional arrest the police may also make a protective sweep of the area if ____

Answer 69

they believe accomplices may be present.

Question 70

The search incidental to lawful arrest must be ____ with the arrest

Answer 70

contemporaneous in time and place

Question 71

If an arrest is unconstitutional, any search incident to that arrest is ____.

Answer 71

also unconstitutional

Question 72

Geographic scope of search incident to lawful arrest

Answer 72

The person and the areas within the person’s
wingspan.

Question 73

The police may conduct a search of the passenger compartment of an automobile incident to arrest only if at the time of the search: (Gant rule)

Answer 73

• 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 (they can find other things in that process and that’s ok = look ex ante)

Question 74

In assessing the validity of a search incident to arrest involving things that did not exist when the Fourth Amendment was adopted (for
example, cell phones, blood alcohol tests), the court will balance ____

Answer 74

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.

Question 75

Contemporaneous with an arrest for intoxicated driving, police officers may administer a warrantless ____ to determine the arrestee’s alcohol levels but may not administer a warrantless
____

Answer 75

breath test; blood test.

Question 76

Violation of an implied consent law (that
is, a law providing that by driving on the roads a driver impliedly consents to a blood test if stopped for intoxicated driving) can be punished ____

Answer 76

civilly (for example, suspension of license) but not criminally.

Question 77

Police officers my examine the ____ of a person’s cell phone upon arrest. However, officers may not examine the ____ without a warrant since it cannot be used as a weapon.

Answer 77

physical attributes; data on a cell phone

Question 78

At the police station, the police may make an inventory search of ____. Similarly, the police may make an inventory search of an ___ vehicle.

Answer 78

the arrestee’s belongings pursuant to established department procedure; impounded (including containers in cars

–> and that can be used against you!

Question 79

Automobile Exception

Answer 79

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 and any container that might reasonably contain the item for which they had probable cause to search.

Question 80

If a warrantless search of a vehicle is valid, the police may ____ 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 ____

Answer 80

tow the vehicle to the station; not search the vehicle without a warrant.

Question 81

If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place _____.

Answer 81

without a warrant

Question 82

The search of an automobile may extend to packages belonging to ____.

Answer 82

a passenger (it is not limited to the driver’s belongings)

Question 83

If the police have probable cause only to search a container in a vehicle (for example, luggage recently placed in the trunk), they may search ____

Answer 83

only the container, not other parts of the vehicle.

Question 84

The probable cause necessary to justify the warrantless search of an auto under the automobile exception can arise after ____ but the probable cause must arise before anything or anybody is ____

Answer 84

the car is stopped; searched.

Question 85

Under the plain view exception the police may make a warrantless seizure when they:

Answer 85

• Are legitimately on the premises
• Discover evidence, fruits or instrumentalities of crime, or contraband
• See such evidence in plain view; and
• Have probable cause to believe (that is, it must be immediately apparent) that the item is evidence, contraband, or a fruit or instrumentality of crime

Question 86

If while executing a search warrant for a handgun, the officer opens a small drawer where the gun could be and sees heroin, the heroin is admissible since it was in plain view of an officer who had a right to look there. This is because the officer ___

Answer 86

legitimately on the premises and legitimately allowed to look there

Question 87

A warrantless search is valid if the police have a ____ consent.

Answer 87

voluntary

Question 88

_____ is not a prerequisite to establishing a voluntary consent

Answer 88

Knowledge of the right to withhold consent

Question 89

The scope of the search that was voluntarily consented to may be limited by ____, but generally extends to all areas to which _____.

Answer 89

the scope of the consent; a reasonable person under the circumstances would believe it extends

Question 90

Any person with an ____ may consent to a search, and any evidence found may be used against the other owners or occupants.

Answer 90

apparent equal right to use or occupy the property

Question 91

An occupant cannot give valid consent to a search when ____ and the search is directed against the co-occupant.

Answer 91

a co-occupant is present and objects to the search

Question 92

If a co-occupant has objected to a search and is
removed for a reason ____ (for example, a lawful arrest), the police may act on consent of the remaining occupant, even if ____

Answer 92

unrelated to the refusal; the removed co-occupant had refused consent.

Question 93

A homeowner parent can certainly consent to a search of the home’s kitchen, and probably to a search of their son’s (even if he is an adult) room unless the facts strongly indicate that ____

Answer 93

the parent does not have a right to go in the room (for example, always locked, only defendant
has key, etc.).

Question 94

A ___ is not an arrest, and thus an officer
need not have probable cause (but they would need reasonable suspicion)

Answer 94

stop

Question 95

The scope of the Terry frisk is generally limited to a patdown of ___, unless the officer has specific information that ____

Answer 95

outer clothing; a weapon is hidden in a particular area of the suspect’s clothing

Question 96

During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its ____ is a ____, and such items are admissible as evidence.

Answer 96

“plain feel,” (CAN’T MANIPULATE); weapon or contraband

Question 97

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:

Answer 97

(1) conduct a frisk of the suspected person, and
(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed.

Question 98

Evanescent evidence is evidence that ____

Answer 98

might disappear quickly if the police took the time to get a warrant.

Question 99

Police in ___ of a fleeing felon may make a warrantless search and seizure and may even ____

Answer 99

hot pursuit; pursue the suspect into a private dwelling

Question 100

However, if the fleeing person is suspected of a ____, their flight does not always justify a warrantless entry into a home.

Answer 100

misdemeanor

Question 101

If the police are not within ____ behind the
fleeing felon, it is not a hot pursuit that falls under the exception.

Answer 101

15 minutes

Question 102

A police officer may enter premises without a warrant if the officer faces an emergency that ____

Answer 102

threatens the health or safety of an individual
or the public.

Question 103

ADMINISTRATIVE INSPECTIONS AND SEARCHES must have a warrant for searches of private residences and commercial buildings, but the probable cause required to obtain a warrant is more lenient than for other searches: A showing of ____

Answer 103

a general and neutral enforcement plan will justify issuance of a warrant.

Question 104

The following warrantless administrative searches have been upheld:

Answer 104

• Administrative searches to seize spoiled or contaminated food
• Administrative searches of a business within a highly regulated industry
• Inventory searches of arrestees or their vehicles pursuant to established department procedure
• Searches—including suspicionless strip searches—of prisoners
  before being admitted into the general prison population, even
  of persons arrested for minor crimes
• Searches of airline passengers prior to boarding
• Searches of parolees and their homes—even without reasonable grounds for the search, at least as long as there is a statute authorizing such
  searches
• Searches of government employees’ desks and file cabinets where the scope is reasonable and there is a work-related need or reasonable suspicion of work-related misconduct
• Drug tests of railroad employees involved in an accident
• Drug tests of persons seeking customs employment in positions connected to drug interdiction
• Drug tests of public school students who participate in extracurricular activities

Question 105

A warrant or probable cause is not required for public school officials to search ____; only ____ for the search are necessary.

Answer 105

public school students or their possessions; reasonable grounds

Question 106

A school search will be held to be reasonable only if:

Answer 106

• It offers a moderate chance of finding evidence of wrongdoing
• The measures adopted to carry out the search are reasonably related to the objectives of the search; and
• The search is not excessively intrusive in light of the age and sex of the student and nature of the infraction

Question 107

The Fourth Amendment does not apply to searches and seizures by United States officials in ___ and involving an alien, at least where the alien ____

Answer 107

foreign countries; does not have a substantial connection to the United States.

Question 108

Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at ____, due to national sovereignty interests.

Answer 108

the U.S. border

Question 109

Roving patrols inside the U.S. border may
stop a vehicle for questioning of occupants if an officer reasonably suspects that ____. Border officials may ____inside the border for questioning of occupants and may disassemble the vehicle, even without ____

Answer 109

the vehicle contains undocumented aliens; stop a vehicle at a fixed checkpoint; reasonable suspicion

Question 110

Permissible border searches include opening of international mail when postal authorities have ____.

Answer 110

reasonable cause to suspect that the mail contains contraband

Question 111

The Immigration Services Division may do a ___ in a factory to determine citizenship of each employee.

Answer 111

“factory survey” of the work force

Question 112

Even illegally obtained evidence (that is, evidence
obtained in violation of the Fourth Amendment) may be used in a ___ deportation hearing.

Answer 112

civil

Question 113

Officials with “reasonable suspicion” that a traveler is smuggling contraband in their stomach may ____

Answer 113

detain the traveler.

Question 114

Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes ____

Answer 114

a search under the Fourth Amendment.

Question 115

A valid warrant authorizing a wiretap may be
issued if

Answer 115

(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

Question 116

The Unreliable Ear Rule

Answer 116

A speaker assumes the risk that the person to whom they are talking either consents to the government monitoring the conversation oris an informer wired for sound or taping the conversation.

Question 117

The Uninvited Ear Rule

Answer 117

A speaker has no Fourth Amendment claim if they make no attempt to keep a conversation private.

Question 118

Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute ____

Answer 118

judicial approval is required before a pen
register may be used

Question 119

Evidence obtained in a manner that ____—in other words, a manner that offends a “sense of justice”—is inadmissible under the Due Process Clause.

Answer 119

shocks the conscience

Question 120

If a crime is induced by official actions that ____, any conviction stemming from those actions is unconstitutional.

Answer 120

shock the conscience

Question 121

The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the ____ Amendments.

Answer 121

Fourth, Fifth, Sixth, and Fourteenth

Question 122

For a self-incriminating statement to be admissible under the Due Process Clause, it must be ___, as determined by the totality of the circumstances. A statement will be not meet this requirement only if ____

Answer 122

voluntary; there is some official compulsion (for example, a confession is not involuntary merely because it is a product of mental illness).

Question 123

If an involuntary confession is admitted into evidence, the____ test applies.

Answer 123

harmless error ( this means the conviction need not be overturned if there is other overwhelming evidence of guilt)

Question 124

The Sixth Amendment guarantees the right to the assistance of counsel in ____, which include all critical stages of a prosecution after ____

Answer 124

all criminal proceedings; judicial proceedings have begun

Question 125

The sixth amendment prohibits the police from deliberately eliciting an incriminating statement from a defendant outside the presence of counsel after ____ unless the defendant has waived their right to counsel.

Answer 125

the defendant has been charged

Question 126

A defendant who is arrested but not yet
charged does not have a ___ Amendment right to counsel but does have a ____ Amendment right to counsel

Answer 126

Sixth; Fifth (under Miranda)

Question 127

A defendant has a right to be represented by privately retained counsel, or to have counsel appointed for them by the state if the defendant is indigent, at the following stages:

Answer 127

• Post-indictment interrogation, whether or not custodial
• Preliminary hearings to determine probable cause to prosecute
• Arraignment
• Post-charge lineups
• Guilty plea and sentencing
• Felony trials
• Misdemeanor trials when imprisonment is actually imposed or when a suspended jail sentence is imposed
• Overnight recesses during trial
• Appeals as a matter of right
• Appeals of guilty pleas

Question 128

Stages at which 6A right to counsel doesn’t apply

Answer 128

• Blood sampling
• Taking of handwriting or voice exemplars
• Precharge or investigative lineups
• Photo identifications
• Preliminary hearings to determine probable cause to detain
• Brief recesses during the defendant’s testimony at trial
• Discretionary appeals
• Parole and probation revocation proceedings
• Post-conviction proceedings

Question 129

The Sixth Amendment is ___. Thus, even though a
defendant’s Sixth Amendment rights have attached regarding the charge for which they are being held, the defendant may be questioned regarding ____ without violating the Sixth Amendment right to counsel

Answer 129

offense specific; unrelated, uncharged offenses

-> Although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda

Question 130

Two offenses will be considered different for 6A questioning if each requires proof of ____ that the other crime does not require.

Answer 130

an additional element

Question 131

The Sixth Amendment right to counsel may be waived. The waiver must be____. However,

Answer 131

knowing and voluntary;

Question 132

Waiver of 6A right to counsel does not necessarily require ____, at least if ____

Answer 132

the presence of counsel; counsel has not actually been requested by the defendant but rather was appointed by the court.

Question 133

At nontrial proceedings (such as post-indictment interrogations), the ____ rule applies to deprivations of counsel.

Of the defendant was entitled to a lawyer at trial, the failure to provide counsel results in ____

Answer 133

harmless error; automatic reversal of the conviction (even without a showing of specific unfairness in the proceedings)

Question 134

____ at trial also results in automatic reversal under the 6A.

Answer 134

Erroneous disqualification of privately retained counsel

Question 135

A statement obtained in violation of a defendant’s Sixth Amendment right to counsel, while not admissible in the prosecution’s case-in-chief, may be used to ____

Answer 135

impeach the defendant’s contrary trial testimony.

Question 136

Miranda warnings are required when a suspect is ____

Answer 136

in custodial interrogation.

Question 137

For an admission or confession to be admissible under the Fifth Amendment privilege against self-incrimination, a person in custody must, prior to interrogation, be informed, in substance, that:

Answer 137

• The person has the right to remain silent
• Anything the person says can be used against them in court
• The person has the right to presence of an attorney; and
• If the person cannot afford an attorney, one will be appointed for them if they so desire

-> Note that the warnings need not be verbatim so long as the substance of the warnings is conveyed.

Question 138

Despite the fact that the Miranda warnings mention a right to counsel, the failure to give the warnings violates a defendant’s Fifth Amendment right to be ____, not their Sixth Amendment right to counsel.

Answer 138

free from compelled self-incrimination

Question 139

Anyone in the custody of the government and accused of a crime must be given Miranda warnings ____ to interrogation by the police.

Answer 139

prior

Question 140

Miranda warnings are necessary only if the detainee knows ____

Answer 140

that they are being interrogated by a government agent

-> The warnings are not necessary when the detainee is being interrogated by an informant whom the defendant does not know is working for
the police.

Question 141

The Miranda requirements do not apply to an ____ grand jury, even if the witness was compelled by subpoena to be there.

Answer 141

uncharged witness

Question 142

Determining whether custody exists is a two-step process:

Answer 142

1 - The first step (sometimes called the “freedom of movement test”) requires the court to determine whether a reasonable person under the circumstances would feel that they were free to terminate the interrogation and leave.
-> TOC test

2 - If yes, the next step considers “whether the relevant environment presents the same inherently coercive pressures as the type of station house questioning at issue in Miranda.
-> the more a setting resembles a traditional arrest (that is, the more constrained the suspect feels), the more likely the Court will consider it to be custody.

Question 143

“Interrogation” includes ____

Answer 143

any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.

Question 144

Miranda warnings are not required before ____ are made by a detainee.

Answer 144

spontaneous statements

Question 145

Note that _____ do not constitute interrogation.

Answer 145

routine booking questions

Question 146

After receiving Miranda warnings, a detainee has several options:

Answer 146

do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.

Question 147

If the detainee does not respond at all to Miranda warnings, the Court will not presume ____. Therefore, the police may _____

Answer 147

a waiver, that the detainee has asserted a right to remain silent or to consult with an attorney

continue to question the detainee.

Question 148

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 _____.

Answer 148

knowing and voluntary (TOC test)

Question 149

It appears that if the government can show that the detainee received Miranda warnings and then ____, that is probably sufficient for waiver.

Answer 149

chose to answer questions

Question 150

To be effective, the detainee’s indication that they wish to remain silent must be ____

Answer 150

explicit, unambiguous, and unequivocal

Question 151

If the detainee indicates that they wish to remain silent, the police must ___ this request by not badgering the detainee.

Answer 151

scrupulously honor

Question 152

In the Supreme Court’s only opinion directly on point, it allowed police to reinitiate questioning after the right to silence was invoked when the police ___

Answer 152

waited a significant amount of time, the person was re-Mirandized, and the questions were limited to a crime that was not the subject of the earlier questioning.

Question 153

If the detainee ____ indicates that they wish to speak to counsel, ____ must cease until counsel has been provided unless the detainee (with two exceptions below)

Answer 153

unambiguously; all questioning

Question 154

Exceptions to questions without counsel when right has been unambiguously invoked under the 5A

Answer 154

(1) then waives their right to counsel (for example, by reinitiating questioning) or
(2) is released from the custodial interrogation back to their normal life and 14 days have passed since release

Question 155

Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally ____ the right to counsel.

Answer 155

does not satisfy (counsel must be present during the interrogation unless the detainee has waived the right).

Question 156

If the detainee indicates that they wish to remain
silent, the police probably may ____. If the detainee requests counsel, the police may ____

Answer 156

re-question them about a different crime after a break if fresh warnings are administered

not resume interrogating the detainee until counsel is provided or the detainee initiates the questioning. (or 14 days pass after relase)

Question 157

Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. With exeptions for:

Answer 157

• Use of Confession for Impeachment
• Warnings After Questioning and Confession if unplanned/inadvertent and subsequent confession made
• Non-testimonial Fruits of an Unwarned Confession (where non-purposeful)

Question 158

Statements obtained in violation of the Miranda rules may be used to ____ trial testimony, but may not be used as ____.

Answer 158

impeach the defendant’s; evidence of guilt.

Question 159

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 ____

Answer 159

intentional

Question 160

In the “question first, [Miranda] warn later” situation, a subsequent valid confession may be admissible if ____

Answer 160

the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.

Question 161

If the police fail to give Miranda warnings and during interrogation a detainee gives the police information that leads to ____, the evidence will be suppressed if the failure was ____, but if the failure was ____, the evidence probably will not be suppressed.

Answer 161

nontestimonial evidence; purposeful; not purposeful

Question 162

The Supreme Court has allowed interrogation without Miranda warnings when it was reasonably prompted by ____

Answer 162

a concern for public safety

Question 163

A suspect has a right to the presence of an attorney at any ____ lineup or showup. An accused does not have a right to counsel at ____ or when police take ____, such as handwriting exemplars or fingerprints.

Answer 163

post-charge; photo identifications

Question 164

The right to counsel before trial is very limited
and does not cover procedures where the defendant is not ____

Answer 164

personally confronted by the witness against them

Question 165

A defendant can attack an identification as denying due process if the identification is ____

Answer 165

unnecessarily suggestive and there is a substantial likelihood of misidentification.

Question 166

Because a lineup does not involve compulsion to give ___ evidence, a suspect’s Fifth Amendment right against compelled self-incrimination ____

Answer 166

“testimonial”; does not apply.

-> Thus, the defendant may not refuse to participate in a lineup on this basis.

Question 167

The remedy for unconstitutional identifications is ____

Answer 167

exclusion of the in-court identification.

Question 168

A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an ____

Answer 168

independent source (The most common independent source is opportunity to observe at the time of the crime)

Question 169

Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but ____

Answer 169

exclusion of the jury is not constitutionally required.

Question 170

At a hearing determining the admissibility of potentially unconstitutional pretrial identification the government bears the burden of proving that:

The defendant must prove ___

Answer 170

(1) counsel was present;
(2) the accused waived counsel; or
(3) there is an independent source for the in-court identification.

an alleged due process violation.

Question 171

The exclusionary rule is a judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant’s ___ Amendment rights.

Answer 171

Fourth, Fifth, and Sixth

Question 172

Under the exclusionary rule, unconstitutionally obtained evidence is inadmissible at trial, and all ___ must also be excluded unless ____

Answer 172

“fruit of the poisonous tree”; the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.

Question 173

Exceptions to fruit of the poisonous tree doctrine:

Answer 173

• The fruits derived from statements obtained in violation of Miranda
• Evidence obtained from a source independent of the original
  illegality
• Evidence for which the connection between the unconstitutional police conduct and the evidence is remote (considering whether the misconduct was purposeful or flagrant) or has been interrupted by some intervening circumstance, so that the causal link between the police misconduct and the evidence is broken
  –> This includes intervening acts of free will on the part of the defendant.
• Inevitable discovery
• Violations of the knock and announce rule

Question 174

It is difficult to have ____excluded on exclusionary rule grounds.

Answer 174

live witness testimony

Question 175

A defendant may not exclude a witness’s in-court ____ on the
ground that it is the fruit of an unlawful detention.

Answer 175

identification

Question 176

Unduly suggestive out-of-court identifications that create a substantial likelihood of misidentification can violate the Due Process Clause of the Fourteenth Amendment (case by case determination)

However, the Court will not consider
applying the exclusionary rule unless the unnecessarily suggestive circumstances were ____

Answer 176

arranged by the police.

Question 177

Limitations on the exclusionary rule

Answer 177

• Inapplicable to Grand Juries, Civil Proceedings, Violations of State Law, Internal Agency Rules, and Parole Revocation Proceedings
• Good Faith Reliance on Law, Defective Search Warrant, or Clerical Error
• Use of Excluded Evidence for Impeachment Purposes
• Knock and Announce Rule Violations

Question 178

The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of ____. The rule is also inapplicable at ____.

Answer 178

the federal wiretapping statute; parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to state
law or agency rules

Question 179

The exclusionary rule does not apply when the police arrest someone erroneously but in _____

Answer 179

good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.

Question 180

There are four exceptions to a good faith reliance on a defective warrant:

Answer 180

(1) The affidavit underlying that warrant is so lacking in probable cause that no reasonable police officer would have relied 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.

Question 181

An otherwise voluntary confession taken in violation of the Miranda requirements is admissible for ____ purposes, and evidence obtained from an illegal search may be used by the prosecution to ____, but not others’, statements.

Answer 181

impeachment; impeach the defendant’s

Question 182

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 ____

Answer 182

harmless.

Question 183

In a habeas proceeding where the petitioner claims constitutional
error, the petitioner should be released if they can show that the error had a ____; if the judge is in grave doubt as to the harm, the petition must be granted.

Answer 183

substantial and injurious effect or influence in determining
the jury’s verdict

Question 184

A defendant is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge ____

Answer 184

out of the hearing of the jury.

Question 185

The government bears the burden of establishing the admissibility by a ____

Answer 185

preponderance of the evidence.

Question 186

The defendant has the right to testify at a suppression hearing without their testimony ____

Answer 186

being admitted against them at trial on the issue of guilt.

Question 187

If probable cause has already been determined (for example, the arrest was pursuant to a warrant or a grand jury indictment), ___ to determine probable cause need be held.

Answer 187

no preliminary hearing

Question 188

If probable cause has not already been determined and there are significant constraints on an arrestee’s liberty (for example, jail or bail,but not release on recognizance), a preliminary hearing to determine probable cause must be held within ___

Answer 188

a reasonable time (for example, 48
hours)

-> There is no real remedy for a denial of the hearing, but evidence discovered as
a result of the unlawful detention can be excluded under the exclusionary rule.

Question 189

Most state constitutions create a right to be released on bail unless ____. Generally, bail can be set no higher than is necessary to ____

Answer 189

he charge is a capital one; assure the defendant’s appearance at trial.

Question 190

Refusal to grant bail or the setting of excessive bail may be ____; however, the Supreme Court has upheld portions of the federal Bail Reform Act that allow arrestees to be held without bail if they
____

Answer 190

appealed immediately; pose a danger or would fail to appear at trial.

Question 192

The Supreme Court has never held that the the Eighth Amendment provision for ____applies to the states.

Answer 192

bail

Question 193

Standards for commitment and subsequent release of defendants ____ must be essentially identical with those for commitment of persons not charged with a crime; otherwise there is a denial of equal protection.

Answer 193

incompetent to stand trial

Question 194

The Fifth Amendment right to indictment by grand jury has ____ incorporated into the Fourteenth Amendment to apply to the states

Answer 194

not been

-> Note, most states east of the Mississippi and the federal system use the grand jury as a regular part of the charging process.

Question 195

Grand jury proceedings are conducted in ____.

Answer 195

secret

Question 196

The defendant has no right to notice that the grand jury is considering ____

Answer 196

an indictment against them, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury.

Question 197

A witness subpoenaed to testify before the grand jury does not have the right to

Answer 197

• Receive Miranda warnings
• Nor is a witness entitled to a warning that they are a “potential defendant” when called to testify before the grand jury.
• Witnesses have no right to have an attorney present.

Question 198

A grand jury may base its indictment on evidence that would be ____, and an indicted defendant may not have the indictment quashed on the ground that it ____.

Answer 198

inadmissible at trial; is based on illegally obtained evidence

Question 199

The “defendant” (grand jury witness) ____ if called, although they can ____ on the grounds that they may incriminate them.

Answer 199

must appear; refuse to answer specific questions

Question 200

There is no right to challenge a subpoena on the Fourth Amendment grounds that the grand jury lacked ____—or any reason at all—to call a witness for questioning.

Answer 200

“probable cause”

Question 201

A conviction resulting from an indictment issued by a grand jury from which members of a minority group have been excluded will be reversed without regard _____

Answer 201

to harmlessness of error (pretty much the only way there is a defect sufficient to quash a grand jury indictment for the bar)

Question 202

A determination of whether a defendant’s Sixth Amendment right to a speedy trial has been violated is made by an evaluation of the totality of the circumstances. Factors considered are

Answer 202

the length of delay, reason for delay, whether defendant asserted their right, and prejudice to defendant.

Question 203

The remedy for a violation of the right to a
speedy trial is ____

Answer 203

dismissal with prejudice.

Question 204

The right to a speedy trial does not attach until the defendant has been ____

Answer 204

arrested or charged.

-> Note: The defendant does not need to know of the charges for the speedy trial rights to attach.

Question 205

To comply with speedy trial rights if the defendant is charged and is incarcerated in another jurisdiction, reasonable efforts must be used to ____

Answer 205

obtain the presence of the defendant.

Question 206

Also, it is a violation of the right to a speedy trial to permit the prosecution to ____

Answer 206

indefinitely suspend charges.

Question 207

The government has a duty to disclose ____ to the defendant.

Answer 207

material, exculpatory evidence

Question 208

Failure to disclose Brady evidence—
whether willful or inadvertent—violates the Due Process Clause and is grounds for reversing a conviction if the defendant can prove that:

Answer 208

(1) the evidence is favorable to the defendant because it either impeaches or is exculpatory; and
(2) prejudice has resulted (that is, there is a reasonable probability that the result of the case would have been different if the undisclosed evidence had been presented
at trial).

Question 209

If the defendant is going to use an alibi or insanity defense, they must ____

Answer 209

notify the prosecution.

Question 210

If an alibi is to be used, the defendant
must give the prosecution a list of their witnesses. The prosecution must give the defendant a list of the witnesses it will ____

Answer 210

use to rebut the defense.

Question 211

The prosecutor may not comment at trial on the defendant’s failure to produce ____

Answer 211

a witness named as supporting the alibi or on failure to present the alibi itself.

Question 212

A defendant acquitted by reason of insanity may not ____.

Answer 212

be retried and convicted (although they may be hospitalized under some circumstances.)

Question 213

Incompetency to stand trial, on the other hand, is not a defense to the charge, but rather is a ____

Answer 213

bar to trial.

Question 214

Incompetency to stand trial is based on the defendant’s mental condition at the time of ____. If the defendant later regains competency, they can then be ____.

Answer 214

trial; tried and convicted.

Question 215

A defendant is incompetent to stand trial if they either

Answer 215

(1) lack a rational as well as factual understanding of the charges and proceedings, or
(2) lack sufficient present ability to consult with their lawyer with a reasonable degree of understanding.

Question 216

The state may place on the defendant the burden of proving incompetency by a ____, but requiring the defendant to show incompetency by ____ evidence is unconstitutional.

Answer 216

preponderance of the evidence; “clear and convincing”

Question 217

A defendant who has successfully asserted the insanity defense may be confined to a mental hospital for a term _____. However, the defendant cannot be ____ after regaining sanity merely because the defendant is unable to prove themself not dangerous to others.

Answer 217

longer than the maximum period of incarceration for the offense; indefinitely committed

Question 218

Excessive pretrial publicity prejudicial to the defendant may require ____

Answer 218

change of venue or retrial.

Question 219

Trial begins with the opening argument of ____ followed by the ____ opening argument. Closing arguments proceed
in the following order:

Answer 219

the prosecution; defense’s

(1) the government argues, (2) the defense
argues, and (3) the government rebuts.

Question 220

The ____ guarantee the right to a public trial, but the right varies with the stage of the proceeding involved.

Answer 220

Sixth and Fourteenth Amendments

Question 221

Preliminary probable cause hearings are presumptively ____, as are pretrial suppression hearings, although the
latter may be closed to the public under limited circumstances for example, the party seeking closure has an ___.

Answer 221

open to the public and press; overriding interest likely to be prejudiced by disclosure and there is no reasonable alternative besides closure

Question 222

A court must make ____ to accommodate public attendance at jury voir dire proceedings.

Answer 222

“every reasonable
effort”

Question 223

The press and public have a First Amendment right to attend ___, even when ____.

The state may constitutionally permit televising criminal proceedings over the ____

Answer 223

the trial itself; the defense and prosecution agree to close it

defendant’s objection.

Question 224

Due process is violated if the judge is shown to have ____ against the defendant or to have had a ____ in having the trial result in a guilty verdict.

Impermissible bias also is present
when a judge earlier had ____ in a critical decision regarding the defendant’s case.

Answer 224

actual malice; financial interest

significant, personal involvement as a prosecutor

Question 225

A defendant in a minor misdemeanor prosecution has ___ to have the trial judge be a lawyer if upon conviction the defendant has a right to ____.

Answer 225

no right trial; de novo in a court with a lawyer-judge

Question 226

For serious crimes, the judge probably must be ____

Answer 226

law-trained.

Question 227

It violates the DPC if the trial is conducted in a manner making it unlikely that the jury gave the evidence ____

Answer 227

reasonable consideration

Question 228

It violates the DPC if the state compels the defendant to stand trial in ____

Answer 228

prison clothing

Question 229

It violates the DPC if The state compels the defendant to stand trial or appear at penalty phase proceedings visibly ____, unless the court finds it justified by ____

Answer 229

shackled; concerns about courtroom security or escape

Question 230

It violates the DPC if the jury is exposed to influence ____

Answer 230

favorable to the prosecution

Question 231

Due process does not require the police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit _____

Answer 231

bad faith destruction.

Question 232

There is no constitutional right to jury trial for petty offenses, but only for ___.

Answer 232

serious offenses

Question 233

An offense is serious (and the def. has a right to a jury trial) if imprisonment for ____ is authorized

Answer 233

more than six months

Question 234

There is no right to jury trial in ____

Answer 234

juvenile delinquency proceedings.

Question 235

For civil ____, there is no jury trial right.

Answer 235

contempt proceedings

Question 236

For criminal contempt proceedings, cumulative penalties totaling more than ____ cannot be imposed without affording the defendant the right to a jury trial.

BUT If a judge summarily imposes punishment for contempt ___, penalties may aggregate more than that time without a jury trial.

Answer 236

six months; during trial

Question 237

A judge may place a contemnor (someone who is guilty of criminal contempt) on probation for up to five years without affording them the right to a jury trial, as long as ____

Answer 237

revocation of probation would not result in imprisonment for more than
six months.

Question 238

There is no constitutional right to a jury of 12, but there must be at least ____ to satisfy the right to a jury trial. Jury verdicts must be ____

Answer 238

six jurors; unanimous.

Question 239

A defendant has a right to have the jury selected from a ____ of the community

Answer 239

representative cross-section

Question 240

The defendant need only show the underrepresentation of a ____ in the venire to show their jury trial right was violated. Note that a defendant does not have the right to proportional representation of all groups on ____

Answer 240

distinct and numerically significant group; their particular jury.

Question 241

Although generally a prosecutor may exercise peremptory challenges for any reason, the Equal Protection Clause forbids the use of peremptory challenges to exclude potential jurors solely on account of ____

Answer 241

their race or gender.

Question 242

An equal protection-based attack on
peremptory strikes involves three steps

Answer 242

(1) The defendant must show facts or circumstances that raise an inference that the exclusion was based on race or gender.
(2) Upon such a showing, the prosecutor must come forward with a race-neutral explanation for the strike (even an unreasonable explanation is sufficient, as long as it is race-neutral).
(3) The judge then determines whether the prosecutor’s explanation was the genuine reason for striking the juror, or merely a pretext for purposeful discrimination.
-> If the judge believes that the prosecutor was sincere, the strike may be upheld.

Question 243

The standard for determining when a prospective juror should be excluded for cause is whether the juror’s views would ____ the performance of their duties in accordance with their instructions and oath.

Answer 243

prevent or substantially impair

Question 244

A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever ____

Answer 244

race is bound up in the case or the defendant is accused of an interracial capital crime.

Question 245

In capital punishment cases, a state may not automatically exclude for cause all those who ____; it must be determined whether the juror’s views would ____ performance of their duties in accordance with their instructions and oath.

Answer 245

express a doubt or scruple about the death penalty

prevent or substantially impair (normal standard)

Question 246

A death sentence imposed by a jury from which a juror was improperly excluded is subject to ____

Answer 246

automatic reversal.

Question 247

If a jury is to decide whether a defendant is to be sentenced to death, on voir dire the defendant must be allowed to ask potential jurors if _____

Answer 247

they would automatically give the death penalty upon a guilty verdict.

-> A juror who answers affirmatively must be excluded for cause because such a juror cannot perform their duties in accordance with instructions as to mitigating circumstances.

Question 248

If a trial court refuses to exclude for cause a juror whom the court should exclude, and the defendant uses a peremptory challenge to exclude the juror, there is ____

Answer 248

no constitutional violation.

Question 249

Inconsistent verdicts (for example, finding the defendant guilty and co-defendant not guilty on the same evidence) are ____

Answer 249

not reviewable.

Question 250

If substantive law provides that a sentence may be increased beyond the statutory maximum for a crime if additional facts (other than prior conviction) are proved, proof of the facts must be ____

Answer 250

submitted to the jury and proved beyond reasonable doubt

-> the defendant’s right to jury trial is violated if the judge makes the determination.

Question 251

The same general rule about not sending fact questions that increase sentence amount applies to:

Answer 251

(1) setting the amount due on a fine = If the amount is based on facts, there is a right to have a jury find those facts.
(2) sentencing enhancements after guilty pleas.

Question 252

In deciding whether to overturn a sentence for failure to submit a sentencing factor to the jury, the ___ test is applied.

Answer 252

harmless error

Question 253

A state legislature may give to its judges (rather than the jury) the power to decide whether sentences for multiple crimes are to run ____, even though the decision is based on the facts of the case.

Answer 253

consecutively or concurrently

Question 254

A defendant has a right to defend themself at trial if, in the judgment
of the judge, their waiver is ____ and, based on the trial judge’s consideration of the defendant’s ____, the defendant is competent to proceed pro se.

Answer 254

knowing and intelligent; emotional and psycho-logical state

Question 255

A defendant does not have a right to self-representation on ____

Answer 255

appeal.

Question 256

The state generally provides counsel in close cases of ___, but may then seek reimbursement from those convicted defendants who later become ___

Answer 256

indigence; able to pay.

Question 257

The Sixth Amendment right to counsel includes the right to ____

Answer 257

effective counsel.

Question 258

The 6A right to effective counsel extends to the ____

Answer 258

first appeal

Question 259

Effective assistance of counsel is generally ____

Answer 259

presumed.

Question 260

An ineffective assistance claimant must show:

Answer 260

• Deficient performance by counsel; and
• But for the deficiency, the result of the proceeding would have been different (for example, the defendant would not have been convicted or the sentence would have been shorter)
• The defendant must point out specific deficiencies and cannot base the claim on inexperience, lack of time to prepare, the gravity of the charges, the complexity of defenses, or accessibility of witnesses to
  counsel.

Question 261

If counsel admits their client’s guilt in the face of the defendant’s clearly articulated desire to maintain their innocence during the sentencing phase of trial, this structural error ____

Answer 261

mandates a new trial without any need to first show prejudice.

Question 262

To make out a Sixth Amendment ineffective assistance claim in a plea bargain case, the defendant must show:

Answer 262

deficient performance and a reasonable possibility that the outcome of the plea process would have been different with competent advice.

Question 263

An attorney’s failure to notify a defendant of a plea offer can constitute deficient performance if the defendant can show that:

Answer 263

(1) had the plea agreement been communicated, the defendant
likely would have accepted; and
(2) the plea likely would have been entered without the prosecutor’s canceling it.

-> The fact that the defendant subsequently has a fair trial (after turning down a plea offer) does not prevent the ineffective assistance claim.

Question 264

It is constitutionally deficient for counsel not to inform a client whether their plea carries a risk of ____

Answer 264

deportation

Question 265

Circumstances not constituting ineffective assistance include ____

Answer 265

trial tactics and the failure to raise a constitutional defense that is later invalidated.

Question 266

Joint representation is not ____. However, if an attorney advises the trial court of a resulting conflict of interest at or before
trial, and the court refuses to appoint separate counsel, the defendant is entitled to ____

Answer 266

per se invalid; automatic reversal.

Question 267

A defendant’s conflict of interest with their attorney is ____ a ground or relief.

Answer 267

rarely

Question 268

A defendant has ____ to be jointly represented with their co-defendants if the government can show a potential conflict of interest.

Answer 268

no right

Question 269

Where a defendant has made a preliminary showing that they are
likely to be able to use the insanity defense, the state must provide ____

Answer 269

a psychiatrist for the preparation of the defense.

Question 270

The right to counsel does not forbid the seizure of drug money and property obtained with drug money, even where defendant was going to use such money or property to ____

Answer 270

pay an attorney.

Question 271

A defendant has no right to consult with their attorney while ____ and may be sequestered from their attorney during ____

Answer 271

testifying; short breaks (for example, 15 minutes as opposed to overnight).

Question 272

The Sixth Amendment grants to a defendant in a criminal prosecution the right to confront ____

Answer 272

adverse witnesses.

Question 273

The confrontation clause right is not absolute, there are some exceptions:

Answer 273

• Face-to-face confrontation is not required when preventing such confrontation serves an important public purpose
• A judge may remove a
  disruptive defendant, and a defendant may voluntarily leave the court-
  room during trial.

Question 274

If two persons are tried together and one has given a confession that implicates the other, the right of confrontation ____, even where the confession ____, which is admitted.

Answer 274

prohibits use of that statement; interlocks with the defendant’s own confession

Question 275

A co-defendant’s confession interlocks with the defendant’s own confession

Answer 275

• All portions referring to the other defendant can be eliminated
• 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
• The confession of the nontestifying co-defendant is being used to rebut the defendant’s claim that their confession was obtained coercively

Question 276

Under the Confrontation Clause, prior testimonial evidence (for example, statements made at prior judicial proceedings) may not be admitted unless:

Answer 276

• The declarant is unavailable, AND
• The defendant had an opportunity to cross-examine the declarant at the time the statement was made

Question 277

The Court has not provided a comprehensive definition of the term
“testimonial,” under the confrontation clause but has held that it includes, at a minimum, statements

Answer 277

from a preliminary hearing, a grand jury hearing, a former trial, or police interrogation conducted to establish or prove past acts.

Question 278

Statements from police interrogations intended to aid the police in responding to an ____ are not testimonial.

Answer 278

ongoing emergency—such as answering
a 911 operator’s question while reporting a crime in progress

Question 279

Statements to individuals who are not principally charged with uncovering and prosecuting crimes are subject to the
Confrontation Clause, but they are _____ than statements given to police officers.

Answer 279

significantly less likely to be testimonial

Question 280

If results of forensic lab tests are offered for ____, they are testimonial in nature and inadmissible unless the person who did the testing is made available for cross-examination.

Answer 280

proof of the matter asserted (for example, testimony from a lab technician that powder found on the defendant is cocaine)

Question 281

No Confrontation Clause issue is raised when the lab test results are not offered to _____

Answer 281

prove the validity of the test results (for example, testimony that the results from a private lab matched results from a state lab offered to show the results match—not that the private lab results are correct).

Question 282

A defendant can be held to have forfeited a Confrontation Clause claim by ____. However, the Court will not find a forfeiture by wrongdoing unless the wrongdoing was _____

Answer 282

wrongdoing; intended to keep the
witness from testifying

Question 283

The Due Process Clause requires in all criminal cases that the state prove guilt beyond a reasonable doubt. The presumption of innocence is a basic component of a fair trial. However, the state may generally impose the burden of proof upon the defendant in regard
to ____

Answer 283

an affirmative defense, such as insanity or self-defense.

Question 284

A _____ violates the Fourteenth Amendment’s requirement that the state prove every element of the crime beyond
a reasonable doubt.

Answer 284

mandatory presumption or a presumption that shifts the burden
of proof to the defendant

Question 285

A judge is to give a jury instruction requested by the defendant or the
prosecution if the instruction is ____

Answer 285

correct, has not already been given, and is supported by some evidence.

Question 286

The judge must determine that the plea is ____. This must be done by addressing the defendant personally in ____

Answer 286

voluntary and intelligent; open court on the record.

Question 287

Specifically for pleas, the judge must be sure that the defendant knows and understands things such as:

Answer 287

• The nature of the charge to which the plea is offered and the crucial elements of the crime charged
  –> 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.
• 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

Question 288

The remedy for a failure to meet the standards for taking a plea is ____

Answer 288

withdrawal of the plea and pleading anew.

Question 289

Those pleas that are seen as an intelligent choice among a defendant’s alternatives are immune from collateral attack. But a plea can be set aside for

Answer 289

(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.

Question 290

A plea bargain will be enforced against the prosecutor and the defendant, but not against the ____

Answer 290

judge, who does not have to accept the
plea.

Question 291

A guilty plea is not involuntary merely because it was entered in response to the prosecution’s threat to ___

Answer 291

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.

Question 292

A guilty plea conviction may be used as a conviction in ____ (for example, as the basis for sentence enhancement). However, a guilty plea neither admits the legality of incriminating evidence nor waives Fourth Amendment claims in a
subsequent ____

Answer 292

other proceedings when relevant; civil damages action.

Question 293

A defendant has a right to ____ during sentencing.

Answer 293

counsel

Question 294

For the purposes of sentencing the ____ may be based on hearsay and uncross-examined reports (for example, the defendant has no right to confrontation
or cross-examination). However, where a ____ those facts must be found in a
context that grants a right to confrontation and cross-examination.

Answer 294

usual sentence; magnified sentence is based on a statute that requires new findings of fact to be made (for example, the defendant is mentally ill)

Question 295

A defendant in a death penalty case must have more opportunity for ____ than need be given a defendant in other sentencing proceedings.

Answer 295

confrontation

Question 296

If a greater punishment is imposed on a defendant who has been reconvicted after a successful appeal than was imposed at the first trial, the judge must ____.

Answer 296

set forth in the record the reasons for the harsher sentence.

Question 297

A judge need not give reasons for imposing a higher sentence after a retrial pursuant to a successful appeal if the greater sentence was imposed upon ____

Answer 297

a de novo trial or in a state that uses jury sentencing, unless the second jury was told of the first jury’s sentence.

Question 298

The Eighth Amendment prohibits ____ punishment.

Answer 298

cruel and unusual

Question 299

A penalty that is ____ to the seriousness of the offense committed is cruel and unusual.

Answer 299

grossly disproportionate

Question 300

State appellate courts do not have to compare the death sentence imposed in a case under appeal with ____

Answer 300

other penalties imposed in similar cases.

Question 301

The death penalty can be imposed only under a statutory scheme that .

Answer 301

• Gives the jury reasonable discretion, full information concerning defendants, and guidance in making the decision
• The statute is not vague
• It must allow the sentencing body to consider all mitigating evidence.

Question 302

If the death sentence is partly based on the aggravating factor of the defendant’s prior conviction, the sentence must be
reversed if ____

Answer 302

the prior conviction is invalidated.

Question 303

A death sentence that has been affected by a vague or other-wise unconstitutional factor can still be upheld, but only if ____

Answer 303

all aggravating and mitigating factors involved are reweighed and death is still found to be appropriate.

Question 304

The Eighth Amendment prohibits imposition of the death penalty for
the crime of ____

Answer 304

• Raping an adult woman or a child if the rape was neither intended to result in nor did result in death
• Felony murder unless the felony murderer’s participation was major and they acted with reckless indifference to the value of human life.

Question 305

The Eighth Amendment prohibits executing a prisoner who is insane
at the time of ____, even if the prisoner was sane at the time ____

Answer 305

execution; the crime was committed.

Question 306

It is cruel and unusual punishment to impose the death penalty on a person who is ____

Answer 306

intellectually disabled.

Question 307

The Eighth Amendment does not 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 ____

Answer 307

form a rational understanding of the reason for the death sentence.

Question 308

Execution of persons who were ____ at the time they committed their offense (including murder) violates the Eighth Amendment.

Answer 308

under 18 years old

Question 309

The mere possibility that the three-drug lethal injection protocol used by many states to carry out executions might be administered improperly and thus cause the condemned unnecessary pain does
____

Answer 309

not make the procedure cruel and unusual punishment.

Question 310

The form of execution would be
cruel and unusual only if the condemned can prove ___

Answer 310

that there is a serious risk of inflicting unnecessary pain or that an alternative procedure is feasible, may be readily implemented, and in fact significantly
reduces substantial risk of severe pain.

Question 311

A statute that makes it a crime to have a given ____ violates the Eighth Amendment because it punishes a mere propensity to engage in dangerous behavior. However, it is permissible to make ____

Answer 311

“status”; criminal specific activity related to a certain status

Question 312

The Eighth Amendment forbids the sentence of life imprisonment without parole for a ____ who committed a non-homicide crime. However, those who have committed homicide can be sentenced to
life imprisonment without the possibility of parole, but the Eighth Amendment prohibits the use of a sentencing scheme that imposes ___ life without parole.

Answer 312

minor; mandatory

Question 313

In determining the sentence, the trial judge may take into account a belief that the defendant committed ____ while testifying at trial on their own behalf.

Answer 313

perjury

Question 314

Where aggregate imprisonment exceeds the maximum period fixed by statute and results directly from _____, there is an impermissible discrimination and violation of the Equal Protection Clause.

Answer 314

involuntary nonpayment of a fine or court costs

Question 315

There is no ____ right to an appeal.

Answer 315

federal constitutional

Question 316

If an avenue of post-conviction review is provided, conditions that make the review less accessible to ____ violate
equal protection. Thus, indigents must be given ____ during a first appeal granted to all as a matter of right and for appeals of guilty pleas and pleas of nolo contendere.

Answer 316

the poor than to the rich; counsel at state expense

Question 317

In a jurisdiction using a two-tier system of appellate courts with discretionary review by the highest court, an indigent defendant need not be provided with counsel during ____

Answer 317

the second, discretionary appeal.

Question 318

If the Supreme Court announces a new rule of criminal procedure (for example, one not dictated by precedent) in a case on direct review, the rule must be applied to ____

Answer 318

all other cases on direct review.

Question 319

After appeal is no longer available or has proven unsuccessful, defendants may generally still attack their convictions ____

Answer 319

collaterally.

Question 320

An indigent has no right ___ to at a habeas corpus proceeding.

Answer 320

appointed counsel

Question 321

For habeas proceedings Petitioner has the burden of proof by ____ to show an unlawful detention.

Answer 321

preponderance of evidence

Question 322

The state may appeal the grant of a writ of ____

Answer 322

habeas corpus.

Question 323

A defendant generally may bring
a habeas petition only if the defendant is ___.

Answer 323

in custody (Generally, this includes anyone who has not fully served the sentence about which they wish to complain.)

Question 324

If revocation of probation also involves imposition of a new sentence, the defendant is entitled to ____

Answer 324

representation by counsel in all cases in which they are entitled to counsel at trial.

Question 325

If, after probation revocation, an already imposed sentence of imprisonment springs into application, or if the case involves parole revocation, the right to counsel is available only if ____

Answer 325

representation is necessary to a fair hearing

Question 326

Prison regulations impinge on due process rights only if the regulations impose ____

Answer 326

“atypical and significant hardship” in relation to the ordinary incidents of prison life.

Question 327

Prisoners have no ____ in their cells and so have no Fourth Amendment protection with respect to searches of their cells.

Answer 327

reasonable expectation of privacy

Question 328

Prisoners must be given ___ to the courts.

Answer 328

reasonable access

Question 329

Prisoners’ First Amendment rights of freedom of speech, association, and religion may be burdened by regulations reasonably related to ____.

Answer 329

penological interests (for example, running a safe and secure prison).

Question 330

Note in pirson that ____ mail can be broadly regulated, but ____ mail generally cannot be regulated.

Answer 330

incoming; outgoing

Question 331

A federal statute prohibits states from interfering with a prisoner’s religious practices absent ____

Answer 331

a compelling interest.

Question 332

Prisoners have a right to ____ under the Eighth Amendment prohibition against cruel and unusual punishment.

Answer 332

adequate medical care

Question 333

A person convicted of a felony may be ____, and this disability can constitutionally continue beyond the term of their sentence.

Answer 333

unable to vote in state elections

Question 334

Under the Fifth Amendment, a person may not be retried for the same offense once ____

Answer 334

jeopardy has attached.

Question 335

Jeopardy attaches in a jury trial at the ____

Answer 335

empaneling and swearing of the jury.

Question 336

In bench trials jeopardy attaches when ____

Answer 336

the first witness is sworn.

Question 337

____ of a juvenile proceeding bars a subsequent criminal trial for the same offense.

Answer 337

Commencement

Question 338

Jeopardy generally does not attach in ____.

Answer 338

civil proceeding other than juvenile proceedings

Question 339

Certain exceptions permit retrial of a defendant even if jeopardy has attached:

Answer 339

• A state may retry a defendant whose first trial ends in a hung jury
• A trial may be discontinued and the defendant reprosecuted for the same offense when there is manifest necessity to abort the original trial or when termination occurs at the behest of the defendant on any ground not constituting acquittal on the merits.
• A state may retry a defendant who has successfully appealed a conviction unless the ground for reversal was insufficient evidence to support a guilty verdict.
• Charges may be reinstated after a defendant breaches their plea bargain.
• If a defendant could have been tried for multiple charges in a single trial, but the defendant elects to have the offenses tried separately, jeopardy does not attach to the first trial for the other charges.

Question 340

A state may retry a defendant who has successfully appealed a conviction unless the ground for reversal was ____. Retrial is permitted when ____ reversal is based on the weight (rather than sufficiency) of the
evidence.

Answer 340

insufficient evidence to support a guilty verdict; weight (rather than sufficiency)

Question 341

On retrial, a defendant may not be tried for a ____ than that for which they were convicted.

Answer 341

greater offense

Question 342

A harsher sentence may be imposed for reasons other than vindictiveness for taking an appeal, but if the jury found that the death penalty was not appropriate in the first trial, a death sentence may
____

Answer 342

not be imposed at the second trial.

Question 343

Once you agree to testify you are agreeing to testify at ____

Answer 343

the first trial and any subsequent trial

Question 344

For jeopardy purposes two crimes are the same offense unless _____

Answer 344

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.

Question 345

Even if two crimes constitute the same offense under the [uncommon element] test, multiple punishments are permissible if ____

Answer 345

there was a legislative intent to have the cumulative punishments

-> For example, a defendant can be
sentenced both for robbery and using a weapon during the commis-
sion of a crime if statutes so provide

Question 346

Attachment of jeopardy for a greater offense bars retrial for ____. Attachment of jeopardy for a lesser included offense bars retrial for a ____

Answer 346

lesser included offenses; greater offense.

Question 347

An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense:

Answer 347

(1) has not occurred at the time of prosecution for the lesser offense or (2) has not been discovered despite due diligence.

Question 348

A retrial for murder is permitted if the victim _____

Answer 348

dies after attachment of jeopardy for battery.

Question 349

A state may continue to prosecute a charged offense despite defendant’s guilty plea to a ____

Answer 349

lesser included or “allied” offense stemming from the same incident.

Question 350

The Double Jeopardy Clause is not violated when a person is indicted for a crime the conduct of which was already used to ____ the defendant’s sentence for another crime.

Answer 350

enhance

Question 351

The Double Jeopardy Clause prohibits only ____. Thus, a state generally is free to bring a ____ against a defendant even if the defendant has already been criminally tried for the conduct out of which the civil action arises.

Answer 351

repetitive criminal prosecutions; civil action

Question 352

The government may bring a criminal action even though the defendant has
already faced ____ for the same conduct unless ____.

Answer 352

civil trial; it is clear from the statutory scheme that the purpose or effect of the statute is to impose a criminal penalty

Question 353

The constitutional prohibition against double jeopardy does not apply to trials by ___

Answer 353

separate sovereigns.

Question 354

A person may be tried for the
same conduct by both the state and federal governments or by two
states, but not by a state and ___

Answer 354

its municipalities (viewed as part of the state)

Question 355

The Double Jeopardy Clause also does not bar a single sovereign from successive prosecutions of ____ arising from the same conduct.

Answer 355

distinct offenses

Question 356

Even after jeopardy has attached, the prosecution may appeal any dismissal on the defendant’s motion that ____

Answer 356

does not constitute an acquittal on the merits.

Question 357

The Double Jeopardy Clause does not bar appeals by the prosecution if a successful appeal would ____

Answer 357

not require a retrial.

Question 358

There is no bar to a government appeal of a ____ pursuant to statute permitting such review. However, if ____, the prosecution may not seek the death penalty on retrial after successful appeal.

Answer 358

sentence; the jury fails to impose the death penalty

Question 359

Under the doctrine of collateral estoppel, a defendant may not be tried or convicted of a crime if a prior prosecution by that sovereignty resulted in ____

Answer 359

a factual determination inconsistent with one required for conviction.

Question 360

The Fifth Amendment privilege against self-incrimination can be asserted by ____

Answer 360

any person in any type of case

Question 361

Only ____ may assert the privilege, not corporations or partnerships

Answer 361

natural persons

Question 362

The Fifth Amendment privilege against self-incrimination is personal and so may be asserted by a defendant, witness, or party only if the answer to the question might ____

Answer 362

tend to incriminate them.

Question 363

A person may refuse to answer a question whenever their response might ____

Answer 363

furnish a link in the chain of evidence needed to prosecute them.

Question 364

The privilege against self-incrimination must be claimed in ____ to prevent the privilege from being waived for a later criminal prosecution.

Answer 364

civil proceedings

Question 365

A ____ has a right not to take the witness stand at trial and not to be asked to do so.

Answer 365

criminal defendant

Question 366

In any other situation than a criminal def., the privilege does not permit a person to avoid ____. Rather, the person must ____ rather than answer the questions.

Answer 366

being sworn as a witness or being
asked questions; listen to the questions and specifically invoke the privilege

Question 367

Merely being required to furnish one’s name after a Terry stop generally ____ the Fifth Amendment because disclosure of one’s name generally poses ____

Answer 367

does not violate; no danger of incrimination.

Question 368

The Fifth Amendment privilege protects only ____ evidence and not ____ evidence.

Answer 368

testimonial or communicative; real or physical

Question 369

For a suspect’s communication to be considered testimonial, it must relate to a ____

Answer 369

factual assertion or disclose information.

Question 370

Examples of non-testimonial evidence that the prosecution can compel a person to produce include ____

Answer 370

samples of a person’s blood, handwriting, voice, and hair.

Question 371

The Supreme Court held that it is constitutionally valid to take a ____ after an arrest for a ___ crime.

Answer 371

DNA cheek swab; serious

Question 373

A person served with a subpoena requiring production of documents ending to incriminate them generally has ___ in the privilege to refuse to comply, because the act of producing the documents ____

Answer 373

no basis; does not involve testimonial self-incrimination.

Question 374

The Fifth Amendment does not prohibit law enforcement officers from ___ tending to incriminate a person.

Answer 374

searching for and seizing documents

-> The privilege protects against being compelled to communicate information, not against disclosure of communication made in the past.

Question 375

A violation of the Self-Incrimination Clause does not occur until ____

Answer 375

a person’s compelled statements are used against them in a criminal case.

Question 376

Only ____ testimonial evidence is privileged from self-incrimination.

Answer 376

compelled

Question 377

A prosecutor may not comment on:

Answer 377

• A defendant’s silence AFTER being arrested and receiving Miranda warnings.
• On a defendant’s failure to testify at trial.

Question 378

A defendant, upon timely motion, is entitled to have the judge instruct the jury that they may not draw an adverse inference from ___. Moreover, the judge may offer this instruction ____, even over the defendant’s objection.

Answer 378

the defendant’s failure to testify; sua sponte

Question 379

A prosecutor can comment on a defendant’s failure to take the stand when ____

Answer 379

the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story.

Question 380

Note that if a suspect chooses to remain silent ____ police read them their Miranda rights, that silence can be used against the suspect in court.

Answer 380

before

Question 381

When a prosecutor impermissibly comments on a defendant’s silence, the ____ test applies.

Answer 381

harmless error

Question 382

The state may not chill exercise of the Fifth Amendment privilege against compelled self-incrimination by ____

Answer 382

imposing penalties for failure to testify.

Question 383

A witness may be compelled to answer questions if granted ____

Answer 383

adequate immunity from prosecution.

Question 384

Adequate immunity from prosecution includes ___

Answer 384

“Use and derivative use” immunity

Question 385

“Use and derivative use” immunity guarantees that ____ will not be used against the witness. However, the witness may still be prosecuted if the prosecutor shows that the evidence to be used against the witness was ____

Answer 385

the witness’s testimony and evidence located by means of the testimony; derived from a source independent of the immunized testimony.

Question 386

Testimony obtained by a promise of immunity is coerced and therefore ___. Thus, immunized testimony may not be used for ____ of a defendant’s testimony at trial. However, any immunized statements, whether true or untrue, can be used in a trial for ____

Answer 386

involuntary; impeachment; perjury.

Question 387

Federal prosecutors ___ use evidence obtained as a result of a state grant of immunity, and vice versa.

Answer 387

may not

Question 388

A person has no privilege against compelled self-incrimination if there is ____

Answer 388

no possibility of incrimination (for example, statute of limitations has run).

Question 389

A criminal defendant, by taking the witness stand, waives the privilege to the extent necessary to ____. A witness waives the privilege only if they ____.

Answer 389

subject them to any cross-examination; disclose incriminating information

Question 390

The following rights must be given to a child during trial of a delinquency proceeding:

Answer 390

(1) written notice of charges,
(2) assistance of counsel,
(3) opportunity to confront and cross-examine witnesses,
(4) the right not to testify, and
(5) the right to have “guilt” established by proof beyond reasonable doubt.

Question 391

The Supreme Court has held that there is ____ to trial by jury in delinquency proceedings.

Answer 391

no right

Question 392

Pretrial detention of a juvenile is allowed where it is found that the juvenile is a ___ to society, as long as the detention is ____

Answer 392

“serious risk”; for a strictly limited time before trial may be held.

Question 393

Actions for forfeiture are brought ___ and are generally regarded as quasi-criminal in nature. Certain constitutional
rights may exist for those persons whose interest in property would be lost by forfeiture.

Answer 393

directly against property

Question 394

The owner of personal property (and others with an interest in it) is not constitutionally entitled to ____ before the property is seized for purposes of a forfeiture proceeding. A hearing
is, however, required before ____.

Answer 394

notice and a hearing (but see exception for real property); final forfeiture of the property

Question 395

Where real property is seized, ____ is required before the seizure of the real property unless the government can prove that ____

Answer 395

notice and an opportunity to be heard; exigent circumstances justify immediate seizure.

Question 396

The Supreme Court has held that the Excessive Fines Clause of the Eighth Amendment applies only to fines imposed as punishment; it does not apply to civil fines. Thus, ____ forfeitures are subject to the Clause, but ___ forfeitures are not

Answer 396

penal; civil

Question 397

If a forfeiture is penal and the 8A Clause applies, the forfeiture will not be “excessive” unless ____

Answer 397

grossly disproportionate to the gravity of the offense

For example, forfeiture of $357,144 was found disproportionate to the crime of failing to report that that sum of money was being transported out of the country.

Question 398

Forfeitures made under the ____ are penal and therefore are subject to the Clause.

Answer 398

federal drug forfeiture statute

Question 399

Monetary forfeitures (for example, forfeiture of twice the value of
illegally imported goods) brought in civil actions generally are ___ to the Eighth Amendment.

Answer 399

not subject

Question 400

The Due Process Clause does not require forfeiture statutes to provide an ____ defense , at least where the innocent owner voluntarily entrusted the property to the wrongdoer.

Answer 400

“innocent owner” (for example, a defense that the owner took all reasonable steps to avoid having the property used by another for illegal purposes)