Criminal Procedure Flashcards
The Constitution provides the ___ of protection for criminal defendants. States are free to grant greater protection, and many do
floor
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 ____
Due Process Clause of the Fourteenth Amendment.
The right to ___ has been held not to be binding on the states. It has not yet been determined whether the ____.
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.)
The Fourth Amendment provides that people should be free from ____
unreasonable searches and seizures.
___ by a government agent over a person or thing is a seizure.
Any exercise of control
Governmental seizures of persons, including arrests, are seizures within the scope of the Fourth Amendment and so must be ____
reasonable.
A seizure occurs when, under the totality of the circumstances, ____
a reasonable person would feel that they were not free to decline the officer’s requests or otherwise terminate the encounter
An arrest occurs when the police take a person into custody _____
against their will for purposes of criminal prosecution or interrogation.
An arrest must be based on ____
probable cause
PC for arrests is defined as
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.
A warrant generally is not required before arresting a person in _____. However, police generally must have a warrant to effect a ____
a public place; nonemergency arrest of a person in their home.
The officers executing an arrest warrant may enter the suspect’s home only if ____
there is reason to believe the suspect is within it.
Police must have full probable cause for arrest to bring a suspect to the station for ____
questioning or fingerprinting against the person’s will.
An unlawful arrest, by itself, has ____ sequent criminal prosecution.
no impact
The police have the authority to briefly detain a person even if they lack probable cause to arrest. If the police have a ___
reasonable suspicion of criminal activity or involvement in a completed crime, supported by articulable facts (based on TOC)
For a Terry Stop the police may detain a person for ____
investigative purposes
If the police also have reasonable suspicion that the detainee is ____, they may frisk the detainee for weapons.
armed and dangerous
When reasonable suspicion is based on an informant’s tip, there must be an ____ to be sufficient.
indicia of reliability (including predictive information)
Investigatory stops are not subject to a specific time limit. The police must act in a ____
diligent and reasonable manner in confirming or dispelling their suspicions.
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.
identify themself; arrest
Brief ____ seizures are similarly valid if based on reasonable suspicion (Terry)
property
Generally, police officers may stop a car if they have ____
at least reasonable suspicion to believe that a law has been violated.
During routine traffic stops, a dog sniff is ____, so long as the police do not ____
not a search; extend the stop beyond the time needed to issue a ticket or conduct normal inquiries.
The Supreme Court held that during such a traffic stop, a dog “alert” to the presence of drugs can ____
form the basis for probable cause for a
search.
The Supreme Court held that the police
(without probable cause) cannot use a drug sniffing dog ____
outside of the home of a suspected drug dealer.
A police officer’s mistake of law does not invalidate
a seizure as long as the mistake was ____.
reasonable
An automobile stop constitutes a seizure of ____
the automobile’s driver and any passengers as well.
If the police set up a roadblock for purposes ____, the roadblock will be constitutional.
other than seeking incriminating information about the drivers stopped
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.
special law enforcement
To be valid, the roadblock must:
- 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
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.
drunk drivers; search cars for illegal drugs
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.
order the occupants of the vehicle to get out; frisk the occupants and search the passenger compartment for weapons
If the police have probable cause to believe a driver violated a traffic law, they may stop the car, even if ____
their ulterior motive is to investigate a crime for which they lack sufficient cause to make a stop (pre-textual stop)
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.
for a reasonable time, prevent the suspect from going into the home unaccompanied
A valid warrant to search for contraband allows the police to ____ during a proper search.
detain occupants of the premises
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
deadly force; reasonable
Like arrests, evidentiary searches and seizures must be reasonable to be valid under the Fourth Amendment, but here reasonableness requires ____
a warrant except in six circumstances.
Evidentiary search and seizure issues should be approached using the following analytical model:
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
The Fourth Amendment generally protects only against _____. It does not protect against searches by privately paid police unless they are ____
governmental conduct; deputized as officers of the public police.
There are two ways in which searches and seizures can implicate an individual’s Fourth Amendment rights:
(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.
To have a Fourth Amendment right, a person must have ____
their own reasonable expectation of privacy with respect to the place searched or the item seized.
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:
- 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
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.
owns the property seized
A person does not have a reasonable expectation of privacy after telling someone to ____
throw something away
A person does not have a reasonable expectation of privacy in objects held ____
out to the public (generally includes information in the hands of third parties)
A person does have a reasonable expectation of privacy in their ____ which is stored in the hands of
third parties.
cell-site location information (that is, personal location information derived from cell phone usage data)
The following is a list of things held out to the public, the seizure of which implicates no right to privacy:
(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
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.
installation of a GPS device on a suspect’s car
Use of sense-enhancing technology that is ____ violates the suspect’s legitimate expectation of privacy.
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
There are two core requirements for a facially valid search warrant: (+ one more)
probable cause and particularity. +issued by neutral and detached magistrate
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 ____
the warrant is executed.
Officers must submit to a magistrate an affidavit setting forth circumstances enabling the magistrate to ____
make a determination of probable cause independent of the officers’ conclusions.
An affidavit based on an informer’s tip must meet the “totality of the circumstances” test. Under this test, the informant’s _____ are relevant factors in making this determination. Note that the informer’s identity generally ____
reliability and credibility or their basis for knowledge; need not be revealed.
A search warrant issued on the basis of an affidavit will be held invalid if the defendant establishes all three of the following:
- 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.
Evidence obtained by the police _____ may be used by the prosecution, despite an ultimate finding that the warrant was not supported by probable cause.
in reasonable reliance on a facially valid warrant
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.
obtained a warrant and it is invalid; failed to obtain
A warrant must describe with particularity the ____. If it does not, the warrant is unconstitutional, even if ____
place to be searched and items to be seized; the underlying affidavit gives such detail.
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 ____
the warrant is issued.
A warrant may be obtained to search premises belonging to nonsuspects, as long as there is ____
probable cause to believe that evidence will
be found there.
The magistrate who issues the warrant must be ____
neutral and detached
Requirements for executing a warrant
- 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
Police may seize any contraband or fruits or instrumentalities of crime that they discover, whether or not ____
specified in the warrant
Violations of the knock and announce rule will ____.
not result in the suppression of evidence otherwise properly obtained
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.
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)
Detentions are limited to persons in the ____ when the warrant is being executed.
immediate vicinity of the premises
Exceptions to the warrant requirement.
- Incident to constitutional arrest
- Automobile search
- Plain view
- Consent
- Stop and frisk
- Hot pursuit, exigent circumstances, evanescent
evidence, emergency aid
All warrantless searches conducted by law enforcement officers are unconstitutional unless ____
they fit into one of six recognized exceptions to the warrant requirement.
Incident to a constitutional arrest the police may ____.
search the person and areas into which they might reach to obtain weapons or destroy evidence.
Incident to a constitutional arrest the police may also make a protective sweep of the area if ____
they believe accomplices may be present.
The search incidental to lawful arrest must be ____ with the arrest
contemporaneous in time and place
If an arrest is unconstitutional, any search incident to that arrest is ____.
also unconstitutional
Geographic scope of search incident to lawful arrest
The person and the areas within the person’s
wingspan.
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)
- 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)
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 ____
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.
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
____
breath test; blood test.
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 ____
civilly (for example, suspension of license) but not criminally.
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.
physical attributes; data on a cell phone
At the police station, the police may make an inventory search of ____. Similarly, the police may make an inventory search of an ___ vehicle.
the arrestee’s belongings pursuant to established department procedure; impounded (including containers in cars
–> and that can be used against you!
Automobile Exception
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.
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 ____
tow the vehicle to the station; not search the vehicle without a warrant.
If the police have probable cause to believe that an automobile itself is contraband, they may seize it from a public place _____.
without a warrant
The search of an automobile may extend to packages belonging to ____.
a passenger (it is not limited to the driver’s belongings)
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 ____
only the container, not other parts of the vehicle.
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 ____
the car is stopped; searched.
Under the plain view exception the police may make a warrantless seizure when they:
- 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
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 ___
legitimately on the premises and legitimately allowed to look there
A warrantless search is valid if the police have a ____ consent.
voluntary
_____ is not a prerequisite to establishing a voluntary consent
Knowledge of the right to withhold consent
The scope of the search that was voluntarily consented to may be limited by ____, but generally extends to all areas to which _____.
the scope of the consent; a reasonable person under the circumstances would believe it extends
Any person with an ____ may consent to a search, and any evidence found may be used against the other owners or occupants.
apparent equal right to use or occupy the property
An occupant cannot give valid consent to a search when ____ and the search is directed against the co-occupant.
a co-occupant is present and objects to the search
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 ____
unrelated to the refusal; the removed co-occupant had refused consent.
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 ____
the parent does not have a right to go in the room (for example, always locked, only defendant
has key, etc.).
A ___ is not an arrest, and thus an officer
need not have probable cause (but they would need reasonable suspicion)
stop
The scope of the Terry frisk is generally limited to a patdown of ___, unless the officer has specific information that ____
outer clothing; a weapon is hidden in a particular area of the suspect’s clothing
During a patdown, an officer may reach into the suspect’s clothing and seize any item that the officer reasonably believes, based on its ____ is a ____, and such items are admissible as evidence.
“plain feel,” (CAN’T MANIPULATE); weapon or contraband
If a vehicle is properly stopped for a traffic violation and the officer reasonably believes that a driver or passenger may be armed and dangerous, the officer may:
(1) conduct a frisk of the suspected person, and
(2) search the vehicle, so long as it is limited to the areas in which weapon may be placed.
Evanescent evidence is evidence that ____
might disappear quickly if the police took the time to get a warrant.
Police in ___ of a fleeing felon may make a warrantless search and seizure and may even ____
hot pursuit; pursue the suspect into a private dwelling
However, if the fleeing person is suspected of a ____, their flight does not always justify a warrantless entry into a home.
misdemeanor
If the police are not within ____ behind the
fleeing felon, it is not a hot pursuit that falls under the exception.
15 minutes
A police officer may enter premises without a warrant if the officer faces an emergency that ____
threatens the health or safety of an individual
or the public.
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 ____
a general and neutral enforcement plan will justify issuance of a warrant.
The following warrantless administrative searches have been upheld:
- 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
A warrant or probable cause is not required for public school officials to search ____; only ____ for the search are necessary.
public school students or their possessions; reasonable grounds
A school search will be held to be reasonable only if:
- 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
The Fourth Amendment does not apply to searches and seizures by United States officials in ___ and involving an alien, at least where the alien ____
foreign countries; does not have a substantial connection to the United States.
Neither a warrant, probable cause, nor reasonable suspicion is needed to conduct a search at ____, due to national sovereignty interests.
the U.S. border
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 ____
the vehicle contains undocumented aliens; stop a vehicle at a fixed checkpoint; reasonable suspicion
Permissible border searches include opening of international mail when postal authorities have ____.
reasonable cause to suspect that the mail contains contraband
The Immigration Services Division may do a ___ in a factory to determine citizenship of each employee.
“factory survey” of the work force
Even illegally obtained evidence (that is, evidence
obtained in violation of the Fourth Amendment) may be used in a ___ deportation hearing.
civil
Officials with “reasonable suspicion” that a traveler is smuggling contraband in their stomach may ____
detain the traveler.
Wiretapping (and other forms of electronic surveillance violating a reasonable expectation of privacy) constitutes ____
a search under the Fourth Amendment.
A valid warrant authorizing a wiretap may be
issued if
(1) there is showing of probable cause,
(2) the suspected persons involved in the conversations to be overheard are named,
(3) the warrant describes with particularity the conversations that can be overheard,
(4) the wiretap is limited to a short period of time,
(5) the wiretap is terminated when the desired information has been
obtained, and
(6) return is made to the court, showing what conversations have been intercepted
The Unreliable Ear Rule
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.
The Uninvited Ear Rule
A speaker has no Fourth Amendment claim if they make no attempt to keep a conversation private.
Although pen registers (devices that record only phone numbers that are dialed from a phone) are not controlled by the Fourth Amendment, by statute ____
judicial approval is required before a pen
register may be used
Evidence obtained in a manner that ____—in other words, a manner that offends a “sense of justice”—is inadmissible under the Due Process Clause.
shocks the conscience
If a crime is induced by official actions that ____, any conviction stemming from those actions is unconstitutional.
shock the conscience
The admissibility of a defendant’s confession (or other incriminating admission) involves analysis under the ____ Amendments.
Fourth, Fifth, Sixth, and Fourteenth
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 ____
voluntary; there is some official compulsion (for example, a confession is not involuntary merely because it is a product of mental illness).
If an involuntary confession is admitted into evidence, the____ test applies.
harmless error ( this means the conviction need not be overturned if there is other overwhelming evidence of guilt)
The Sixth Amendment guarantees the right to the assistance of counsel in ____, which include all critical stages of a prosecution after ____
all criminal proceedings; judicial proceedings have begun
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.
the defendant has been charged
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
Sixth; Fifth (under Miranda)
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:
- 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
Stages at which 6A right to counsel doesn’t apply
- 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
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
offense specific; unrelated, uncharged offenses
-> Although the interrogation might violate the defendant’s Fifth Amendment right to counsel under Miranda
Two offenses will be considered different for 6A questioning if each requires proof of ____ that the other crime does not require.
an additional element
The Sixth Amendment right to counsel may be waived. The waiver must be____. However,
knowing and voluntary;
Waiver of 6A right to counsel does not necessarily require ____, at least if ____
the presence of counsel; counsel has not actually been requested by the defendant but rather was appointed by the court.
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 ____
harmless error; automatic reversal of the conviction (even without a showing of specific unfairness in the proceedings)
____ at trial also results in automatic reversal under the 6A.
Erroneous disqualification of privately retained counsel
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 ____
impeach the defendant’s contrary trial testimony.
Miranda warnings are required when a suspect is ____
in custodial interrogation.
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:
- 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.
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.
free from compelled self-incrimination
Anyone in the custody of the government and accused of a crime must be given Miranda warnings ____ to interrogation by the police.
prior
Miranda warnings are necessary only if the detainee knows ____
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.
The Miranda requirements do not apply to an ____ grand jury, even if the witness was compelled by subpoena to be there.
uncharged witness
Determining whether custody exists is a two-step process:
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.
“Interrogation” includes ____
any words or conduct by the police that they should know would likely elicit an incriminating response from the detainee.
Miranda warnings are not required before ____ are made by a detainee.
spontaneous statements
Note that _____ do not constitute interrogation.
routine booking questions
After receiving Miranda warnings, a detainee has several options:
do nothing, waive their Miranda rights, assert the right to remain silent, or assert the right to consult with an attorney.
If the detainee does not respond at all to Miranda warnings, the Court will not presume ____. Therefore, the police may _____
a waiver, that the detainee has asserted a right to remain silent or to consult with an attorney
continue to question the detainee.
The detainee may waive their rights under Miranda. To be valid, the government must show by a preponderance of the evidence that the waiver was _____.
knowing and voluntary (TOC test)
It appears that if the government can show that the detainee received Miranda warnings and then ____, that is probably sufficient for waiver.
chose to answer questions
To be effective, the detainee’s indication that they wish to remain silent must be ____
explicit, unambiguous, and unequivocal
If the detainee indicates that they wish to remain silent, the police must ___ this request by not badgering the detainee.
scrupulously honor
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 ___
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.
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)
unambiguously; all questioning
Exceptions to questions without counsel when right has been unambiguously invoked under the 5A
(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
Allowing the detainee to consult with counsel and then resuming interrogation after counsel has left generally ____ the right to counsel.
does not satisfy (counsel must be present during the interrogation unless the detainee has waived the right).
If the detainee indicates that they wish to remain
silent, the police probably may ____. If the detainee requests counsel, the police may ____
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)
Generally, evidence obtained in violation of the Miranda rules is inadmissible at trial under the exclusionary rule. With exeptions for:
- 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)
Statements obtained in violation of the Miranda rules may be used to ____ trial testimony, but may not be used as ____.
impeach the defendant’s; evidence of guilt.
If the police obtain a confession from a detainee without giving them Miranda warnings and then give the detainee Miranda warnings and obtain a subsequent confession, the subsequent confession
will be inadmissible if the “question first, warn later” nature of the questioning was ____
intentional
In the “question first, [Miranda] warn later” situation, a subsequent valid confession may be admissible if ____
the original unwarned questioning seemed unplanned and the failure to give Miranda warnings seemed inadvertent.
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.
nontestimonial evidence; purposeful; not purposeful
The Supreme Court has allowed interrogation without Miranda warnings when it was reasonably prompted by ____
a concern for public safety
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.
post-charge; photo identifications
The right to counsel before trial is very limited
and does not cover procedures where the defendant is not ____
personally confronted by the witness against them
A defendant can attack an identification as denying due process if the identification is ____
unnecessarily suggestive and there is a substantial likelihood of misidentification.
Because a lineup does not involve compulsion to give ___ evidence, a suspect’s Fifth Amendment right against compelled self-incrimination ____
“testimonial”; does not apply.
-> Thus, the defendant may not refuse to participate in a lineup on this basis.
The remedy for unconstitutional identifications is ____
exclusion of the in-court identification.
A witness may make an in-court identification despite the existence of an unconstitutional pretrial identification if the in-court identification has an ____
independent source (The most common independent source is opportunity to observe at the time of the crime)
Admissibility of identification evidence should be determined at a suppression hearing in the absence of the jury, but ____
exclusion of the jury is not constitutionally required.
At a hearing determining the admissibility of potentially unconstitutional pretrial identification the government bears the burden of proving that:
The defendant must prove ___
(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.
The exclusionary rule is a judge-made doctrine that prohibits introduction of evidence obtained in violation of a defendant’s ___ Amendment rights.
Fourth, Fifth, and Sixth
Under the exclusionary rule, unconstitutionally obtained evidence is inadmissible at trial, and all ___ must also be excluded unless ____
“fruit of the poisonous tree”; the costs of excluding the evidence outweigh the deterrent effect exclusion would have on police misconduct.
Exceptions to fruit of the poisonous tree doctrine:
- 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
It is difficult to have ____excluded on exclusionary rule grounds.
live witness testimony
A defendant may not exclude a witness’s in-court ____ on the
ground that it is the fruit of an unlawful detention.
identification
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 ____
arranged by the police.
Limitations on the exclusionary rule
- 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
The exclusionary rule is inapplicable to grand juries unless evidence was obtained in violation of ____. The rule is also inapplicable at ____.
the federal wiretapping statute; parole revocation proceedings, in civil proceedings, or where evidence was obtained contrary only to state
law or agency rules
The exclusionary rule does not apply when the police arrest someone erroneously but in _____
good faith thinking that they are acting pursuant to a valid arrest warrant, search warrant, or law.
There are four exceptions to a good faith reliance on a defective warrant:
(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.
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.
impeachment; impeach the defendant’s
If illegal evidence is admitted, a resulting conviction should be overturned on appeal unless the government can show beyond reasonable doubt that the error was ____
harmless.
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.
substantial and injurious effect or influence in determining
the jury’s verdict
A defendant is entitled to have the admissibility of evidence or a confession decided as a matter of law by a judge ____
out of the hearing of the jury.
The government bears the burden of establishing the admissibility by a ____
preponderance of the evidence.
The defendant has the right to testify at a suppression hearing without their testimony ____
being admitted against them at trial on the issue of guilt.
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.
no preliminary hearing
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 ___
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.
Most state constitutions create a right to be released on bail unless ____. Generally, bail can be set no higher than is necessary to ____
he charge is a capital one; assure the defendant’s appearance at trial.
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
____
appealed immediately; pose a danger or would fail to appear at trial.
The Supreme Court has never held that the the Eighth Amendment provision for ____applies to the states.
bail
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.
incompetent to stand trial
The Fifth Amendment right to indictment by grand jury has ____ incorporated into the Fourteenth Amendment to apply to the states
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.
Grand jury proceedings are conducted in ____.
secret
The defendant has no right to notice that the grand jury is considering ____
an indictment against them, to be present and confront witnesses at the proceeding, or to introduce evidence before the grand jury.
A witness subpoenaed to testify before the grand jury does not have the right to
- 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.
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 ____.
inadmissible at trial; is based on illegally obtained evidence
The “defendant” (grand jury witness) ____ if called, although they can ____ on the grounds that they may incriminate them.
must appear; refuse to answer specific questions
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.
“probable cause”
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 _____
to harmlessness of error (pretty much the only way there is a defect sufficient to quash a grand jury indictment for the bar)
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
the length of delay, reason for delay, whether defendant asserted their right, and prejudice to defendant.
The remedy for a violation of the right to a
speedy trial is ____
dismissal with prejudice.
The right to a speedy trial does not attach until the defendant has been ____
arrested or charged.
-> Note: The defendant does not need to know of the charges for the speedy trial rights to attach.
To comply with speedy trial rights if the defendant is charged and is incarcerated in another jurisdiction, reasonable efforts must be used to ____
obtain the presence of the defendant.
Also, it is a violation of the right to a speedy trial to permit the prosecution to ____
indefinitely suspend charges.
The government has a duty to disclose ____ to the defendant.
material, exculpatory evidence
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:
(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).
If the defendant is going to use an alibi or insanity defense, they must ____
notify the prosecution.
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 ____
use to rebut the defense.
The prosecutor may not comment at trial on the defendant’s failure to produce ____
a witness named as supporting the alibi or on failure to present the alibi itself.
A defendant acquitted by reason of insanity may not ____.
be retried and convicted (although they may be hospitalized under some circumstances.)
Incompetency to stand trial, on the other hand, is not a defense to the charge, but rather is a ____
bar to trial.
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 ____.
trial; tried and convicted.
A defendant is incompetent to stand trial if they either
(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.
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.
preponderance of the evidence; “clear and convincing”
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.
longer than the maximum period of incarceration for the offense; indefinitely committed
Excessive pretrial publicity prejudicial to the defendant may require ____
change of venue or retrial.
Trial begins with the opening argument of ____ followed by the ____ opening argument. Closing arguments proceed
in the following order:
the prosecution; defense’s
(1) the government argues, (2) the defense
argues, and (3) the government rebuts.
The ____ guarantee the right to a public trial, but the right varies with the stage of the proceeding involved.
Sixth and Fourteenth Amendments
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 ___.
open to the public and press; overriding interest likely to be prejudiced by disclosure and there is no reasonable alternative besides closure
A court must make ____ to accommodate public attendance at jury voir dire proceedings.
“every reasonable
effort”
The press and public have a First Amendment right to attend ___, even when ____.
The state may constitutionally permit televising criminal proceedings over the ____
the trial itself; the defense and prosecution agree to close it
defendant’s objection.
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.
actual malice; financial interest
significant, personal involvement as a prosecutor
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 ____.
no right trial; de novo in a court with a lawyer-judge
For serious crimes, the judge probably must be ____
law-trained.
It violates the DPC if the trial is conducted in a manner making it unlikely that the jury gave the evidence ____
reasonable consideration
It violates the DPC if the state compels the defendant to stand trial in ____
prison clothing
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 ____
shackled; concerns about courtroom security or escape
It violates the DPC if the jury is exposed to influence ____
favorable to the prosecution
Due process does not require the police to preserve all items that might be used as exculpatory evidence at trial, but does prohibit _____
bad faith destruction.
There is no constitutional right to jury trial for petty offenses, but only for ___.
serious offenses
An offense is serious (and the def. has a right to a jury trial) if imprisonment for ____ is authorized
more than six months
There is no right to jury trial in ____
juvenile delinquency proceedings.
For civil ____, there is no jury trial right.
contempt proceedings
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.
six months; during trial
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 ____
revocation of probation would not result in imprisonment for more than
six months.
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 ____
six jurors; unanimous.
A defendant has a right to have the jury selected from a ____ of the community
representative cross-section
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 ____
distinct and numerically significant group; their particular jury.
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 ____
their race or gender.
An equal protection-based attack on
peremptory strikes involves three steps
(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.
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.
prevent or substantially impair
A defendant is entitled to questioning on voir dire specifically directed to racial prejudice whenever ____
race is bound up in the case or the defendant is accused of an interracial capital crime.
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.
express a doubt or scruple about the death penalty
prevent or substantially impair (normal standard)
A death sentence imposed by a jury from which a juror was improperly excluded is subject to ____
automatic reversal.
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 _____
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.
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 ____
no constitutional violation.
Inconsistent verdicts (for example, finding the defendant guilty and co-defendant not guilty on the same evidence) are ____
not reviewable.
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 ____
submitted to the jury and proved beyond reasonable doubt
-> the defendant’s right to jury trial is violated if the judge makes the determination.
The same general rule about not sending fact questions that increase sentence amount applies to:
(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.
In deciding whether to overturn a sentence for failure to submit a sentencing factor to the jury, the ___ test is applied.
harmless error
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.
consecutively or concurrently
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.
knowing and intelligent; emotional and psycho-logical state
A defendant does not have a right to self-representation on ____
appeal.
The state generally provides counsel in close cases of ___, but may then seek reimbursement from those convicted defendants who later become ___
indigence; able to pay.
The Sixth Amendment right to counsel includes the right to ____
effective counsel.
The 6A right to effective counsel extends to the ____
first appeal
Effective assistance of counsel is generally ____
presumed.
An ineffective assistance claimant must show:
- 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.
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 ____
mandates a new trial without any need to first show prejudice.
To make out a Sixth Amendment ineffective assistance claim in a plea bargain case, the defendant must show:
deficient performance and a reasonable possibility that the outcome of the plea process would have been different with competent advice.
An attorney’s failure to notify a defendant of a plea offer can constitute deficient performance if the defendant can show that:
(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.
It is constitutionally deficient for counsel not to inform a client whether their plea carries a risk of ____
deportation
Circumstances not constituting ineffective assistance include ____
trial tactics and the failure to raise a constitutional defense that is later invalidated.
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 ____
per se invalid; automatic reversal.
A defendant’s conflict of interest with their attorney is ____ a ground or relief.
rarely
A defendant has ____ to be jointly represented with their co-defendants if the government can show a potential conflict of interest.
no right
Where a defendant has made a preliminary showing that they are
likely to be able to use the insanity defense, the state must provide ____
a psychiatrist for the preparation of the defense.
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 ____
pay an attorney.
A defendant has no right to consult with their attorney while ____ and may be sequestered from their attorney during ____
testifying; short breaks (for example, 15 minutes as opposed to overnight).
The Sixth Amendment grants to a defendant in a criminal prosecution the right to confront ____
adverse witnesses.
The confrontation clause right is not absolute, there are some exceptions:
- 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.
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.
prohibits use of that statement; interlocks with the defendant’s own confession
A co-defendant’s confession interlocks with the defendant’s own confession
- 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
Under the Confrontation Clause, prior testimonial evidence (for example, statements made at prior judicial proceedings) may not be admitted unless:
- The declarant is unavailable, AND
- The defendant had an opportunity to cross-examine the declarant at the time the statement was made
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
from a preliminary hearing, a grand jury hearing, a former trial, or police interrogation conducted to establish or prove past acts.
Statements from police interrogations intended to aid the police in responding to an ____ are not testimonial.
ongoing emergency—such as answering
a 911 operator’s question while reporting a crime in progress
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.
significantly less likely to be testimonial
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.
proof of the matter asserted (for example, testimony from a lab technician that powder found on the defendant is cocaine)
No Confrontation Clause issue is raised when the lab test results are not offered to _____
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).
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 _____
wrongdoing; intended to keep the
witness from testifying
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 ____
an affirmative defense, such as insanity or self-defense.
A _____ violates the Fourteenth Amendment’s requirement that the state prove every element of the crime beyond
a reasonable doubt.
mandatory presumption or a presumption that shifts the burden
of proof to the defendant
A judge is to give a jury instruction requested by the defendant or the
prosecution if the instruction is ____
correct, has not already been given, and is supported by some evidence.
The judge must determine that the plea is ____. This must be done by addressing the defendant personally in ____
voluntary and intelligent; open court on the record.
Specifically for pleas, the judge must be sure that the defendant knows and understands things such as:
- The nature of the charge to which the plea is offered and the crucial elements of the crime charged
–> The 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
The remedy for a failure to meet the standards for taking a plea is ____
withdrawal of the plea and pleading anew.
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
(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.
A plea bargain will be enforced against the prosecutor and the defendant, but not against the ____
judge, who does not have to accept the
plea.
A guilty plea is not involuntary merely because it was entered in response to the prosecution’s threat to ___
charge the defendant with a more serious crime if they do not plead guilty.
-> There is no prosecutorial vindictiveness in charging a more serious offense when defendant demands a jury trial.
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 ____
other proceedings when relevant; civil damages action.
A defendant has a right to ____ during sentencing.
counsel
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.
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)
A defendant in a death penalty case must have more opportunity for ____ than need be given a defendant in other sentencing proceedings.
confrontation
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 ____.
set forth in the record the reasons for the harsher sentence.
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 ____
a de novo trial or in a state that uses jury sentencing, unless the second jury was told of the first jury’s sentence.
The Eighth Amendment prohibits ____ punishment.
cruel and unusual
A penalty that is ____ to the seriousness of the offense committed is cruel and unusual.
grossly disproportionate
State appellate courts do not have to compare the death sentence imposed in a case under appeal with ____
other penalties imposed in similar cases.
The death penalty can be imposed only under a statutory scheme that .
- 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.
If the death sentence is partly based on the aggravating factor of the defendant’s prior conviction, the sentence must be
reversed if ____
the prior conviction is invalidated.
A death sentence that has been affected by a vague or other-wise unconstitutional factor can still be upheld, but only if ____
all aggravating and mitigating factors involved are reweighed and death is still found to be appropriate.
The Eighth Amendment prohibits imposition of the death penalty for
the crime of ____
- 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.
The Eighth Amendment prohibits executing a prisoner who is insane
at the time of ____, even if the prisoner was sane at the time ____
execution; the crime was committed.
It is cruel and unusual punishment to impose the death penalty on a person who is ____
intellectually disabled.
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 ____
form a rational understanding of the reason for the death sentence.
Execution of persons who were ____ at the time they committed their offense (including murder) violates the Eighth Amendment.
under 18 years old
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
____
not make the procedure cruel and unusual punishment.
The form of execution would be
cruel and unusual only if the condemned can prove ___
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.
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 ____
“status”; criminal specific activity related to a certain status
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.
minor; mandatory
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.
perjury
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.
involuntary nonpayment of a fine or court costs
There is no ____ right to an appeal.
federal constitutional
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.
the poor than to the rich; counsel at state expense
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 ____
the second, discretionary appeal.
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 ____
all other cases on direct review.
After appeal is no longer available or has proven unsuccessful, defendants may generally still attack their convictions ____
collaterally.
An indigent has no right ___ to at a habeas corpus proceeding.
appointed counsel
For habeas proceedings Petitioner has the burden of proof by ____ to show an unlawful detention.
preponderance of evidence
The state may appeal the grant of a writ of ____
habeas corpus.
A defendant generally may bring
a habeas petition only if the defendant is ___.
in custody (Generally, this includes anyone who has not fully served the sentence about which they wish to complain.)
If revocation of probation also involves imposition of a new sentence, the defendant is entitled to ____
representation by counsel in all cases in which they are entitled to counsel at trial.
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 ____
representation is necessary to a fair hearing
Prison regulations impinge on due process rights only if the regulations impose ____
“atypical and significant hardship” in relation to the ordinary incidents of prison life.
Prisoners have no ____ in their cells and so have no Fourth Amendment protection with respect to searches of their cells.
reasonable expectation of privacy
Prisoners must be given ___ to the courts.
reasonable access
Prisoners’ First Amendment rights of freedom of speech, association, and religion may be burdened by regulations reasonably related to ____.
penological interests (for example, running a safe and secure prison).
Note in pirson that ____ mail can be broadly regulated, but ____ mail generally cannot be regulated.
incoming; outgoing
A federal statute prohibits states from interfering with a prisoner’s religious practices absent ____
a compelling interest.
Prisoners have a right to ____ under the Eighth Amendment prohibition against cruel and unusual punishment.
adequate medical care
A person convicted of a felony may be ____, and this disability can constitutionally continue beyond the term of their sentence.
unable to vote in state elections
Under the Fifth Amendment, a person may not be retried for the same offense once ____
jeopardy has attached.
Jeopardy attaches in a jury trial at the ____
empaneling and swearing of the jury.
In bench trials jeopardy attaches when ____
the first witness is sworn.
____ of a juvenile proceeding bars a subsequent criminal trial for the same offense.
Commencement
Jeopardy generally does not attach in ____.
civil proceeding other than juvenile proceedings
Certain exceptions permit retrial of a defendant even if jeopardy has attached:
- 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.
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.
insufficient evidence to support a guilty verdict; weight (rather than sufficiency)
On retrial, a defendant may not be tried for a ____ than that for which they were convicted.
greater offense
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
____
not be imposed at the second trial.
Once you agree to testify you are agreeing to testify at ____
the first trial and any subsequent trial
For jeopardy purposes two crimes are the same offense unless _____
each crime requires proof of an additional element that the other does not require, even though some of the same facts may be necessary to prove both crimes.
Even if two crimes constitute the same offense under the [uncommon element] test, multiple punishments are permissible if ____
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
Attachment of jeopardy for a greater offense bars retrial for ____. Attachment of jeopardy for a lesser included offense bars retrial for a ____
lesser included offenses; greater offense.
An exception to the double jeopardy bar exists if unlawful conduct that is subsequently used to prove the greater offense:
(1) has not occurred at the time of prosecution for the lesser offense or (2) has not been discovered despite due diligence.
A retrial for murder is permitted if the victim _____
dies after attachment of jeopardy for battery.
A state may continue to prosecute a charged offense despite defendant’s guilty plea to a ____
lesser included or “allied” offense stemming from the same incident.
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.
enhance
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.
repetitive criminal prosecutions; civil action
The government may bring a criminal action even though the defendant has
already faced ____ for the same conduct unless ____.
civil trial; it is clear from the statutory scheme that the purpose or effect of the statute is to impose a criminal penalty
The constitutional prohibition against double jeopardy does not apply to trials by ___
separate sovereigns.
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 ___
its municipalities (viewed as part of the state)
The Double Jeopardy Clause also does not bar a single sovereign from successive prosecutions of ____ arising from the same conduct.
distinct offenses
Even after jeopardy has attached, the prosecution may appeal any dismissal on the defendant’s motion that ____
does not constitute an acquittal on the merits.
The Double Jeopardy Clause does not bar appeals by the prosecution if a successful appeal would ____
not require a retrial.
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.
sentence; the jury fails to impose the death penalty
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 ____
a factual determination inconsistent with one required for conviction.
The Fifth Amendment privilege against self-incrimination can be asserted by ____
any person in any type of case
Only ____ may assert the privilege, not corporations or partnerships
natural persons
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 ____
tend to incriminate them.
A person may refuse to answer a question whenever their response might ____
furnish a link in the chain of evidence needed to prosecute them.
The privilege against self-incrimination must be claimed in ____ to prevent the privilege from being waived for a later criminal prosecution.
civil proceedings
A ____ has a right not to take the witness stand at trial and not to be asked to do so.
criminal defendant
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.
being sworn as a witness or being
asked questions; listen to the questions and specifically invoke the privilege
Merely being required to furnish one’s name after a Terry stop generally ____ the Fifth Amendment because disclosure of one’s name generally poses ____
does not violate; no danger of incrimination.
The Fifth Amendment privilege protects only ____ evidence and not ____ evidence.
testimonial or communicative; real or physical
For a suspect’s communication to be considered testimonial, it must relate to a ____
factual assertion or disclose information.
Examples of non-testimonial evidence that the prosecution can compel a person to produce include ____
samples of a person’s blood, handwriting, voice, and hair.
The Supreme Court held that it is constitutionally valid to take a ____ after an arrest for a ___ crime.
DNA cheek swab; serious
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 ____
no basis; does not involve testimonial self-incrimination.
The Fifth Amendment does not prohibit law enforcement officers from ___ tending to incriminate a person.
searching for and seizing documents
-> The privilege protects against being compelled to communicate information, not against disclosure of communication made in the past.
A violation of the Self-Incrimination Clause does not occur until ____
a person’s compelled statements are used against them in a criminal case.
Only ____ testimonial evidence is privileged from self-incrimination.
compelled
A prosecutor may not comment on:
- A defendant’s silence AFTER being arrested and receiving Miranda warnings.
- On a defendant’s failure to testify at trial.
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.
the defendant’s failure to testify; sua sponte
A prosecutor can comment on a defendant’s failure to take the stand when ____
the comment is in response to defense counsel’s assertion that the defendant was not allowed to explain their side of the story.
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.
before
When a prosecutor impermissibly comments on a defendant’s silence, the ____ test applies.
harmless error
The state may not chill exercise of the Fifth Amendment privilege against compelled self-incrimination by ____
imposing penalties for failure to testify.
A witness may be compelled to answer questions if granted ____
adequate immunity from prosecution.
Adequate immunity from prosecution includes ___
“Use and derivative use” immunity
“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 ____
the witness’s testimony and evidence located by means of the testimony; derived from a source independent of the immunized testimony.
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 ____
involuntary; impeachment; perjury.
Federal prosecutors ___ use evidence obtained as a result of a state grant of immunity, and vice versa.
may not
A person has no privilege against compelled self-incrimination if there is ____
no possibility of incrimination (for example, statute of limitations has run).
A criminal defendant, by taking the witness stand, waives the privilege to the extent necessary to ____. A witness waives the privilege only if they ____.
subject them to any cross-examination; disclose incriminating information
The following rights must be given to a child during trial of a delinquency proceeding:
(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.
The Supreme Court has held that there is ____ to trial by jury in delinquency proceedings.
no right
Pretrial detention of a juvenile is allowed where it is found that the juvenile is a ___ to society, as long as the detention is ____
“serious risk”; for a strictly limited time before trial may be held.
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.
directly against property
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 ____.
notice and a hearing (but see exception for real property); final forfeiture of the property
Where real property is seized, ____ is required before the seizure of the real property unless the government can prove that ____
notice and an opportunity to be heard; exigent circumstances justify immediate seizure.
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
penal; civil
If a forfeiture is penal and the 8A Clause applies, the forfeiture will not be “excessive” unless ____
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.
Forfeitures made under the ____ are penal and therefore are subject to the Clause.
federal drug forfeiture statute
Monetary forfeitures (for example, forfeiture of twice the value of
illegally imported goods) brought in civil actions generally are ___ to the Eighth Amendment.
not subject
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.
“innocent owner” (for example, a defense that the owner took all reasonable steps to avoid having the property used by another for illegal purposes)
