Criminal Procedure Flashcards
1
Q
What are the four steps for search and seizure analysis?
A
1) Is the search and seizure governed by 4th Am? 2) Is search or seizure conducted w/ a warrant that satisfies 4th Am? 3) Is search or seizure conducted w/o warrant satisfying 4th Am requirements? 4) Is evidence obtained through a search and seizure that violates 4th Am nonetheless admissible in court?
2
Q
What is the analysis for whether the search or seizure is governed by the 4th Am?
A
First, was the search or seizure executed by a government agent? Second, was there a reasonable expectation of privacy in the area searched or items seized?
3
Q
What are the two important categories of government agents for bar purposes?
A
Publicly paid police, on or off duty, AND private citizens if and only if they are acting at the direction of the police. (Private security is not govt agent unless deputized.)
4
Q
What are the protected areas in which people have reasonable expectations of privacy?
A
4th Am protects unreasonable searches and seizures of their 1) persons, 2) houses (incl. hotel rooms), 3) papers (personal correspondence), and 4) effects (purses, backpacks). Home based privacy includes the “area of domestic use” immediately surrounding the house called the curtilage.
5
Q
What is important about SCOTUS’s GPS case?
A
US v. Jones: case governed by trespass because tracker attached to a vehicle. This is a CL understanding of 4th Am. Trespass = search.
6
Q
What are the certain categories of items that are sufficiently public in nature that they carry no reasonable expectation of privacy even if they are searched or seized?
A
Patty Achieved A Glorious Victory Over Her Opponents. Paint scrapings on outside of your car; Account records held by a bank; Airspace; Garbage left at curb for collection; Voice exemplars; Odor (even those emanating from car or luggage); Hand writing; Open fields and what you can see across it.
7
Q
What do all of the unprotected items have in common?
A
Knowing exposure to 3d parties.
8
Q
Who has standing to challenge the search or seizure?
A
An individual whose personal privacy rights have been invaded.
9
Q
Does V have standing if she owns the premises searched?
A
Yes. Always.
10
Q
Does V who does not own the premises searched but who resides there have standing?
A
Always.
11
Q
If V neither owns nor resides in the premises searched but is an overnight guest there, does V have standing?
A
V always has standing as to areas overnight guests can be expected to have access to.
12
Q
If V neither owns, nor resides, nor are staying overnight but are merely using someone else’s home solely for business purposes, does she have standing?
A
No. Never.
13
Q
If V owns the property seized in the search, does she have standing?
A
Only if reasonable expectation of privacy in the area from which property is seized.
14
Q
Do passengers in cars have standing to sue?
A
Only if they have a reasonable expectation of privacy in the item or area searched or seized. Passenger can always challenge the stop.
15
Q
What is never sufficient to provide the authority to challenge the search and seizure in court?
A
The fact that incriminating evidence may be introduced against an individual in court.
16
Q
What is the three part test for whether the search warrant under which criminal evidence was gathered satisfies 4th Am requirements?
A
Ask: 1) is the warrant supported by probable cause and particularity (and issued by a neutral magistrate)? 2) If not, did police officers rely on a defective warrant in good faith? 3) Was the warrant properly executed by the police?
17
Q
What is probable cause?
A
Requires proof of a fair probability that contraband or evidence of crime will be found in the area searched.
18
Q
What is admissible in making the probable cause determination?
A
Hearsay and info obtained thru informant’s tips, even if info is anonymous. Sufficiency of the tip rests on corroboration by the police of enough of the tipster’s info to allow the magistrate to make a “common sense practical determination” that PC exists based on the totality of the circumstances.
19
Q
What if you get a PC question on the VA essay exam?
A
Follow SCOTUS 4th Am law. Case-by-case facto oriented analysis determined from perspective of a reasonable law enforcement officer (obj. standard). Note PC may be established as to one person or one place but not as to another. No PC if see hand rolled cigs; Yes PC if dog sniff alerts.
20
Q
What is particularity?
A
Search warrant must specify the place to be searched and the item to be seized. Cannot have a general warrant that authorizes a fishing expedition.
21
Q
What is the magistrate requirement for the search warrant?
A
Warrant must be issued by a neutral and detached magistrate.
22
Q
When does an officer’s good faith fail to save a defective search warrant?
A
Four categorical exceptions: (1) Affidavit supporting the warrant application is so egregiously lacking in PC no reasonable officer would have relied; (2) So facially deficient in particularity that officers couldn’t reasonably presume it to be valid; (3) Affidavit contains knowing or reckless falsehoods that are necessary to PC finding; (4) Magistrate who issued the warrant is biased in favor of prosecution.
23
Q
If warrant was valid or relied on in GF, how do you know if warrant was properly executed by the police?
A
(1) Did officers executing the warrant stay w/in terms and limits (i.e. stay w/in scope)? (2) Did officers executing the warrant comply with “knock and announce”?
24
Q
What does it mean to comply with the warrant’s terms and limitations?
A
In executing the warrant, officers are allowed to search only those areas and items authorized by the language of the warrant.
25
What is the knock and announce rule?
Requires PO to knock and announce their presence and purpose before forcibly entering the place to be searched unless officer reasonably believes that doing so would be futile or dangerous or would inhibit the investigation.
26
When is failure to knock and announce reasonable/unreasonable?
Reasonable where PC to believe occupant dealt drugs out of home, had violent crim history, and kept weapons at home; unreasonable where meth makers have no violent crime record, no evidence suggesting they were armed, and no risk of destruction of evidence in time it would take to knock.
27
When is the warrantless search through which criminal evidence was gathered valid under the 8 exceptions to the warrant requirement?
ESCAPIST. Exigent circumstances, SITA, Consent, Auto, Plain view, Inventory, Special needs, Terry "stop and frisk"
28
What are the exigent circumstances?
Evanescent evidence and hot pursuit.
29
What is evanescent evidence?
Evidence that would dissipate or disappear in the time it would take to get a warrant. POs can't create the exigency that causes the destruction.
30
What is hot pursuit of the fleeing felon?
Hot pursuit allows police when looking for suspect to enter a suspect's home or that of 3d party into which he has fled. Any evidence of a crime discovered in plain view while searching for suspect is admissible if pursuit is "hot."
31
What is a search incident to arrest?
When PO made a lawful arrest and PO has concerns for 1) officer safety and 2) need to preserve evidence, PO may search contemporaneous in time and place with the arrest.
32
What is the permissible scope of a SITA?
The wingspan or grabbing area which includes the body, clothing, and any containers w/in arrestee's immediate control w/o regard to the offense for which the arrest was made.
33
What is the permissible scope of SITA w/ respect to automobiles?
Interior cabin, including closed containers, but not the trunk, may be searched. Once officer has secured an arrestee, officer can search arrestee's vehicle only if she has reason to believe the vehicle may contain evidence relating to the crime for which the arrest was made.
34
What is the standard for consent to search?
Consent must be voluntary and intelligent. POs do not need to tell someone that she has the right to refuse to consent, and they can ask for D to consent to basically anything.
35
What is apparent authority to consent?
If PO obtains consent to search from someone who lacks actual authority to rant it, the consent is still valid under 4th Am, provided officer reasonably believed that the consenting party had actual authority.
36
What are the exceptions to apparent authority?
Hotel operators and landlords can't consent.
37
Who may consent to the search of shared premises?
Any or all adults can consent to common area searches.
38
What if co-tenants disagree about consenting to the search?
If co-tenants with an equal right to use or occupy premises disagree, the objecting party prevails as to areas over which they share common dominion and control BUT objecting party must be present to object.
39
What is the standard for conducting an automobile search?
POs need PC to believe that contraband or evidence of a crime will be found in the vehicle.
40
Where in the automobile may POs search?
The entire car and they may open any package, luggage, or other container that may reasonably contain the items for which there was PC to search.
41
What is the rule with traffic stops and car searches?
If detainment begins as an auto stop, for the search to be lawful, an officer doesn't need PC at the time the car is pulled over, provided he acquires it before initiating the search.
42
What are the requirements of the plain view doctrine?
1) Lawful access to the place from which the item can be plainly seen.
2) Lawful access to the item.
3) The criminality of the item must be immediately recognizable.
43
When may an inventory search be conducted?
When arrestee is booked or when a car is impounded.
44
When are inventory searches constitutional?
If the regulations governing them are reasonable in scope and the search itself complies with those regulations i.e. need a routine practice.
45
What is the special needs doctrine?
Caters to the "special needs" of law enforcement, governmental employers, and school officials beyond a general interest in law enforcement.
46
When does special needs permit warrantless random drug testing?
RR employees following an impact accident; customs agents who are responsible for drug interdiction, and school children who participate in any extracurricular activities.
47
What is the limit on warrantless random drug testing?
Suspicionless drug tests are not permitted where their primary purpose is gather criminal evidence for use by law enforcement.
48
When does special needs allow warrantless search of govt employees' desks and files?
Permitted to investigate work related misconduct.
49
When does special needs allow warrantless search of student "effects" in public schools?
Permissible to investigate violations of school rules, such as the prohibition of smoking on school grounds.
50
When does special needs allow border searches?
Neither citizens nor non-citizens have any 4th Am rights at the border, which respect to routine searches of persons and effects.
51
Does the 4th Am apply to searches conducted under special needs?
YES.
52
What is a Terry stop?
A brief detention or "seizure" for the purpose of investigating suspicious conduct. Can take place anywhere.
53
When are you "seized" for 4th Am purposes?
An individual is seized for 4th Am purposes when based on a totality of circumstances a reasonable person would not feel free to leave or to decline an officer's request to answer questions. SCOTUS usually presumes non-seizure.
54
What are the factors for evaluating whether a person has been seized?
Consider 1) whether officer brandishes a weapon, 2) the officer's tone and demeanor when interacting with the individual questioned, and 3) whether the individual was told she has the right to refuse consent. May be other factors.
55
When is a person being pursued by a PO "seized"?
When the person submits to the officer's authority by stopping or if the officer physically restrains him.
56
When is a person seized in a traffic stop?
When there is a stop, both driver and passengers are seized such that either can challenge the legality of the stop.
57
When is a dog sniff permissible?
In traffic stops, dog sniffs are permissible if sniff doesn't prolong the stop unreasonably. BUT if you walk up to the front door of a house with a dog, it's a search and unreasonable.
58
What is a Terry frisk?
A pat down of the body and outer clothin for weapons that is justified by an officer's belief that a suspect is armed and dangerous.
59
What can be seized in a Terry frisk?
If PO finds a weapon, it can always be seized. If PO finds something she recognizes as contraband w/o manipulating the object, that can be seized too!
60
What can be seized in a VA Terry frisk under the "plain feel doctrine"?
Court doesn't want to allow this easily. Difficult w/ drugs to show PO knew what it was on feel alone.
61
In a traffic stop, what can be searched and seized in a Terry "car frisk"?
If PO believes a suspect is dangerous he may search the passenger cabin of suspect's vehicle, limited to those areas in which a weapon may be placed or hidden.
62
What evidentiary standard applies to Terry stop and frisks?
Reasonable suspicion, which is more than a hunch but less than PC. (Note: flight by itself isn't enough for reasonable suspicion, but is an important factor.)
63
How does reasonable suspicion apply in Terry stops?
Requires specific and articulable facts that inform a PO's belief that criminal activity is present.
64
How does reasonable suspicion apply in Terry frisks?
It requires specific and articulable facts that suggest a suspect is armed and dangerous. Frisk may be justified by concern for officer safety only; it is not a general search.
65
What is the exclusionary rule?
Evidence whether physical or testimonial that is obtained in violation of a federal statutory or constitutional provision is inadmissible in court against the individual whose rights were violated.
66
What are the limits on the exclusionary rule?
Case and chief v. cross-examination; knock and announce violations; PO's reasonable mistakes; fruit of the poisonous tree.
67
What is the case-in-chief v. cross-examination exemption to the exclusionary rule?
Unconstitutionally obtained evidence is excluded from the case in chief only; it may be introduced to impeach the defendant's testimony on cross-examination.
68
What is the exclusionary rule as it relates to knock and announce violations?
A failure to comply with the knock and announce rule doesn't require suppression of the evidence subsequently discovered.
69
How do an officer's reasonable mistakes affect the exclusionary rule?
The exclusionary rule doesn't apply to evidence erroneously obtained when executing a search warrant, provided an officer's mistake was reasonable. One key is that POs must stop the search when they realize their mistake.
70
What is the fruit of the poisonous tree doctrine?
Evidence obtained by exploiting prior unconstitutional conduct. The derivative evidence is called fruit of the poisonous tree and is inadmissible in P's case in chief.
71
What must be done to nullify the fruit of the poisonous tree?
Ps must show a break in the causal link between the original illegality and the criminal evidence that is later discovered, usually through either independent source doctrine, inevitable discover doctrine, or attenuation doctrine.
72
What is the independent source doctrine?
There is a source for discovery and seizure of the evidence that is distinct from the original illegality.
73
What is the inevitable discovery doctrine?
Evidence would necessarily have been discovered through lawful means.
74
What is the attenuation doctrine?
Admits derivative evidence where D's free will has been restored through the passage of time and intervening events.
75
What is the problem with standing and the exclusionary rule?
Many items of evidence are admissible because of the standing rule, not because of the fruit of the poisonous tree doctrines.
76
What are the four major requirements for a valid wiretap warrant?
Screen Telephone Calls Carefully. (1) warrant must be in the name of SUSPECTED persons whose convos are to be overheard. (2) must be PC that a CRIME has been committed. (3) warrant must describe w/ particularity the CONVERSATIONS that can be overheard. (4) tap must be for a strictly limited TIME period.
77
What is the unreliable ear doctrine and assumption of risk as it relates to eavesdropping?
If you speak to someone who has agreed to a wiretap or some other form of electronic monitoring, you have no 4th Am claim; you assume the risk that the other party will not keep convos private.
78
When does an arrest occur?
Police take someone into custody against her will for prosecution or interrogation.
79
What is de facto arrest?
When police compel someone to come to police station for questioning or fingerprinting.
80
What is the standard of proof for arrest?
Probable cause.
81
For what offenses does 4th Am permit a custodial arrest?
All offenses even those punishable by monetary fine only.
82
When do you need a warrant to arrest someone?
Never for warrantless misdemeanors committed in officer's presence; never for felony arrests in public places; absent emergency, need a warrant to arrest someone in his or her home; in the home of a 3d party, POs always need an arrest warrant and a search warrant.
83
What is common enterprise theory?
In a traffic stop, where a PO discovers evidence of crime that suggests a common unlawful enterprise between the driver and his passengers, the officer may arrest any or all of them, based on the reasonable inference of shared dominion and control over the contraband.
84
What is the VA codified rule for felony arrest?
An officer may arrest any person who commits any crime in the officer's presence, or whom the officer has reasonable grounds or PC to suspect has committed a felony not in the officer's presence.
85
What are the VA codified rules for other arrests?
May arrest for an alleged misdemeanor not committed in PO presence when (1) phone or radio message that a warrant for such offense is on file or (2) offense involves an assault and battery and the arrest is based on CP upon the reasonable complaint of an eyewitness.
86
What is VA's current trend with respect to the misdemeanor rule?
Trending toward exceptions to CL if involves crime that might involve violence.
87
What are the VA statutory exceptions to warrant requirement for arrest?
Motor vehicle crimes, shoplifting, warrant on file, public drunkenness, assault and battery against family or household members.
88
What are the three challenges that can be brought to exclude a confession?
14th Am Due Process; 6th Am right to counsel; 5th Am Miranda doctrine.
89
How are confessions excluded under the 14th Am DPC?
Involuntariness, which means that the confession is the product of police coercion that overbears the suspect's will.
90
What is the standard for 6th Am right to counsel?
It is an express constitutional guarantee that applies at all critical stages of a criminal prosecution. It attaches once formal charges are filed, and initial appearance triggers the right.
91
Is the right to counsel offense specific?
Yes. It applies only to the charges filed against you and provides no protection for uncounseled interrogation for uncharged criminal activity.
92
What are the 5th Am Miranda rights?
Implied rights grounded in self-incrimination clause. Core warnings are: right to remain silent, anything you say can and will be used against you, right to an attorney, if you can't afford one, an attorney will be appointed for you.
93
What triggers Miranda?
Custodial interrogation
94
What are the two core requirements of custodial interrogation?
Custody and interrogation.
95
What is custody?
Suspect is in custody under Miranda if the atmosphere viewed objectively is characterized by police domination such that his or her freedom of action is limited in a significant way.
96
What is interrogation?
Any conduct the police knew or should have known was reasonably likely to elicit an incriminating response i.e. Miranda doesn't apply to spontaneous incriminating statements because not the product of interrogation.
97
What is the listening post rule?
Jail isn't enough for custody if suspect thinks he is talking to a friend. May ask about unrelated conduct posing as inmate under 5th Am; may passively listen under 6th Am if criminal activity.
98
What is the one important exception to Miranda if suspect is subject to custodial interrogation?
If there is an immediate concern for public safety, Miranda warnings are unnecessary and any incriminating statements are admissible against the suspect.
99
What are the two components of valid Miranda waiver?
Knowing and intelligent; Voluntary
100
What is knowing and intelligent waiver?
Suspect understands the nature of rights and the consequences of abandoning rights.
101
What is voluntary waiver?
Not the product of police coercion.
102
What is the test for whether a Miranda waiver was valid?
Totality of the circumstances, but a showing that the detainee received Miranda warnings and then chose to answer questions is likely sufficient.
103
What is the burden of proof for showing Miranda waiver?
Prosecution bears the burden of proof by a preponderance of evidence.
104
Does Miranda waiver have to be fully informed?
No. Suspects are not entitled to a free flow of info to calibrate their self-interest.
105
What if a suspect invokes his right to remain silent?
POs must "scrupulously honor" a suspect's request to remain silent. This means, at the very least that POs can't badger a suspect into talking and detectives must wait a significant period of time before reinitiating questioning and must first obtain valid waiver.
106
What if a suspect invokes his right to counsel?
All interrogation must cease unless it's initiated by the suspect. BUT the request must be sufficiently clear that a reasonable officer in the same situation would understand the statement to be a request for counsel.
107
When does the request for counsel expire?
Request for counsel expires 14 days after suspect is released from Miranda custody. Suspect may then be questioned regarding the same matter after receiving a fresh set of Miranda warnings.
108
Are both the right to remain silent and the right to counsel offense-specific?
No. 5th Am is not offense specific i.e. interrogation following a request for counsel under Miranda is prohibited as to all topics outside presence of attorney.
109
When are incriminating statements obtained in violation of Miranda admissible?
Never admissible in P's case in chief but may be used to impeach D's testimony (not that of 3d parties) on cross-exam.
110
What is the implication of failure to warn with respect to physical fruits?
Failure to Mirandize does NOT require suppression of the physical fruits from incriminating statements if the statements are voluntary.
111
What happens to statements made after the first failure to Mirandize?
If a statement is inadmissible due to a Miranda violation, subsequent statements made after obtaining a Miranda waiver are admissible if the initial non-Mirandized statement wasn't obtained through the use of inherently coercive police tactics offensive to DPC.
112
If testimonial evidence that should have been excluded as violative of Miranda was improperly admitted at trial and the D was convicted, is the court required to vacate the guilty verdict?
It depends. Verdict will stand if the government can prove, beyond a reasonable doubt, that the error was harmless because D would have been convicted w/o the tainted evidence.
113
What are the three types of pretrial identifications?
Line-ups (W asked to ID the perpetrator from a group); show-ups (one-on-one confrontation between W and suspect); photo arrays (W asked to pick out the perp from a series of photos)
114
What are the two substantive challenges to pretrial ID?
Denial of right to counsel and violation of DP.
115
What is the challenge of denial of right to counsel?
No 5th AM right to counsel under Miranda for pretrial ID procedures; Right to counsel under 6th AM at line ups and show ups that take place after formal charging (no 6th AM right to counsel at photo arrays).
116
What is the challenge of violation of DP?
A pretrial ID procedure violates the DPC of 14th Am when it is so unnecessarily suggestive that there is a substantial likelihood of misidentification.
117
What is the remedy for a pretrial ID problem?
Exclusion of W's in court ID. BUT even if there is a constitutional violation in a pretrial ID procedure, an in-court ID will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional show-up, line-up, or photo array.
118
To make a showing of pre-trial ID that should be allowed, what factors should a P have to show?
W's opportunity to view the D at the crime scene; Certainty of W's ID; Specificity of the description given to the police.
119
What do grand juries do?
Hold private proceedings to issue indictments. (Many states also use grand juries as part of the charging process.)
120
In VA, what do regular/charging grand juries do?
5 to 9 jurors consider bills of indictment prepared by the attorney for Commonwealth and determines whether there is sufficient PC to return a true bill.
121
In VA, what does the special or investigative grand jury do?
9 to 11 jurors investigate and make a report (limited powers). Report filed w/ the court and then the grand jury is discharged.
122
In VA, what does a multi-jurisdictional grand jury do?
Acts across jurisdictional lines w/in VA to investigate and return indictments.
123
What is the standard of proof for the pretrial detention?
Govt needs PC both to bind a D over for trial and to detain him in jail before trial.
124
What is a detention hearing?
A hearing to determine PC is unnecessary to justify pretrial detention if: the grand jury has issued and indictment or a magistrate has issued an arrest warrant. 48 hours = presumptively reasonable.
125
What is the first appearance?
Soon after arrest a D must be brought before a magistrate who will 1) advise of rights, 2) set bail, and 3) appoint counsel.
126
What is the right to bail?
Decision regarding bail is immediately appealable.
127
In VA, what is the right to bail?
Accused has a right to bail unless PC to believe the accused will not appear for trial or poses an unreasonable danger to himself or the public. Rebuttable presumption that there will be no right to bail for violent crimes.
128
In VA, what happens when bail is denied or bail is excessive?
Right to immediate appeal.
129
When must P disclose evidence to D?
Must disclose to criminal D all material exculpatory evidence.
130
What does the right to an unbiased judge mean?
Judge has no financial stake in the outcome of the case and judge has no actual malice toward D.
131
When is there a right to a jury trial?
Max sentence exceeds 6 mos.
132
What is the smallest number of jurors allowed in a criminal trial? What is the VA distinction?
6 in federal court; in VA, 12 jurors required for felony trials and 7 required for misdemeanor trial.
133
How many jurors do you need to win a jury verdict?
Must be unanimous in criminal trials only if 6 jurors are used; verdicts in 12 person juries need not be unanimous.
134
In VA, how many jurors do you need to win a jury trial?
Criminal verdicts shall be unanimous, in writing, and returned by the jury in open court.
135
What is the cross-sectional requirement for juries?
Pool from which jury is drawn represents a cross-section of the community. Jury drawn from such a pool is appropriately diverse.
136
What is the peremptory challenge rule?
Permits both sides to exclude jurors w/o stating their reasons for doing so, but they can't be used by either side to exclude the prospective jurors on account of race or gender.
137
What is the VA specific rule about peremptory challenges?
Each side gets unlimited number for cause challenges (failure to excuse for cause is reversible error); each side gets 4 peremptories in felony cases and 3 in misdemeanor cases.
138
What is D's right to confront adverse Ws (i.e. when does it not apply)?
Confrontation clause of 6th Am does not apply where fact to face confrontation would contravene important public policy concerns.
139
What is the standard for IAC?
Proof that 1) counsel's performance was deficient and 2) but for the deficiency, the outcome of the trial would have been different. On test, unless there's some argument D is in fact not guilty, always deny relief under IAC.
140
What is the standard for judge accepting a plea bargain?
Judge must establish it is voluntary and intelligent. Judge must address in open court and on the record 1) the nature of charges including required elements of the charged offense and 2) consequences of the plea.
141
When may a D withdraw a guilty plea after sentencing?
Only if 1) plea is involuntary due to a defect in plea taking colloquy; 2) jurisdictional defect; 3) D prevails on claim of IAC; 4) P fails to fulfill part of the bargain.
142
What are the "other" types of guilty pleas?
Nolo contendere, conditional guilty plea, or Alford plea.
143
What is nolo contendere?
D agrees the court may consider him guilty for purpose of imposing judgment and sentence but not a confession or declaration of innocence. In most places, this means that D isn't estopped in civil case from denying liability, but in VA, it is admissible in civil litigation against D.
144
What is a conditional guilty plea?
D contests one issue of case but agrees to plead guilty if he can appeal the issue he contests. In VA, only available in felony cases.
145
What is an Alford plea?
D concedes only that P has sufficient evidence to prove case, but allows maintenance of innocence.
146
What are the VA rules on withdrawal of pleas?
D may withdraw a plea of guilty or nolo contendere 1) only before sentence is imposed or imposition of sentence is supsended OR 2) w/in 21 days after entry of a final order if court sets asides the judgment in order to correct a manifest injustice.
147
What is the 8th Am prohibition against cruel and unusual punishment?
Disallows criminal penalties that are grossly disproportionate to the seriousness of the offense committed.
148
When would the death penalty violate 8th Am?
If it created an automatic category for the imposition of the death penalty.
149
What must jurors be able to consider in deciding whether to impose death penalty?
All mitigating evidence.
150
Who does 8th Am prohibit the imposition of the death penalty against?
Ds w/ mental retardation, who are presently insane, or who were under the age of 18 at the time the relevant offense occurred.
151
What is double jeopardy?
Nor shall any person be subject for the same offense to be twice put in jeopard of life or limb by the same sovereign.
152
When does jeopardy attach?
At jury trial, when jury is sworn; at bench trial, when first W is sworn; at guilty plea, when court accepts the D's plea unconditionally.
153
Does the double jeopardy clause apply to civil proceedings?
No.
154
What is the same offense requirement for purposes of the double jeopardy clause?
Not the same offense if each contains an element the other doesn't.
155
Are two offenses the same offense if only one has an element not contained in the other?
Prosecution for the greater offense precludes later prosecution for the lesser included offenses AND prosecution for the lesser included offense precludes later prosecution for the greater offense.
156
What is the same sovereign requirement?
Double jeopardy bars retrial for the same offense by the same sovereign only. States and municipalities w/in are the same sovereign, but state and federal and different states are not.
157
What are the four exceptions to the double jeopardy rule that permit retrial?
Hung jury, mistrial for manifest necessity, successful appeal, or breach of plea agreement by D.
158
What is the VA double jeopardy rule?
P for the substantive offense bars later P for the related conspiracy. Exception if both charges are brought int he same proceeding. Prosecution for federal crime bars later state P under equivalent state statute. Federal action must start before state proceedings.
159
What is the 5th Am privilege against compelled testimony?
Anyone may assert the privilege in any proceeding in which an individual testifies under oath.
160
When must the 5th Am privilege be asserted?
At the first opportunity or it is forever waived.
161
What does the 5th Am privilege protect against?
It's a testimonial privilege that protects us from compelled testimony only; it doesn't apply to state use of our "bodies."
162
Does the 5th Am privilege protect against negative prosecutorial comment?
Yes. P can't comment on D's decision not to testify at trial or invocation of right to silence.
163
What are the three ways to eliminate the 5th Am privilege?
P grant of use and derivative use immunity which means P can't use testimony or anything derived from it to convict you; by taking stand, D waives ability to take the 5th as to anything properly w/in scope of cross-exam; privilege unavailable if SOL has run bc W's testimony couldn't expose him to further criminal prosecution.
164
What is the 6th Am right to speedy trial standard?
Whether D's right to a speedy trial has been violated will be made by an evaluation of totality of circumstances. Factors: length of delay, reason for delay, whether D asserted his right, prejudice to D.
165
What is the remedy for a speedy trial violation?
Dismissal with prejudice.
166
When does the right to speedy trial attach?
When D has been arrested and formally charged.
167
What is the time limitation for VA speedy trial?
An accused will be permanently discharged form P if accused committed a felony and trial isn't commenced w/in the following time periods: D in custody = 5 mos. from prelim hearing, and D not in custody = 9 mos. from prelim hearing.
168
What is "commencement of trial" for speedy trial purposes?
Trial is deemed commenced at the point when double jeopardy attaches or when a plea of guilty or nolo contendere is tendered by D.
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What are the tolling events for right to a speedy trial?
Insanity, escape, witness issues, separate trials, hung jury, natural disaster, continuance on motion by accused, appeals.
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When is the right to speedy trial waived?
Accused waived to speedy trial by failing to invoke until after final judgment or fail to oppose a motion for continuance.
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What is the general rule for trial publicity?
DP entitles D to an impartial trier of fact.
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What are solutions for publicity issues?
Judge may delay trial, sequester jury, change venue, or close the trial. Trial may only be closed if there is a compelling interest and no less restrictive alternative.
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What are the courts in VA?
District court (no jury or record; original jur over misdemeanors and prelims for felonies); circuit court (trial by jury or bench, record, original jur over all felonies, and appeals from DC de novo); VA court of appeals (no appeal of right, final appeal for misdemeanor convictions); Supreme court (review if substantial constitutional Q or issue of significant precedential value, death penalty cases are auto appealed).
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What are the SOLs in VA?
Felony no limit; misdemeanor 1 year; continuing offenses no limit generally; with few limited exceptions.
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What are preliminary hearings in VA?
Held in district court. Right to prelim if felony unless indictment is returned prior to prelim. Right is waived if not raised before trial. Prelim judge may discharge accused if no PC or determine there is PC to proceed with trial or certify case to circuit court and commit accused to jail or admit him to bail.
176
What is an indictment?
A written accusation of a crime prepared by attorney for commonwealth and returned a true bill upon oath or affirmation of a legally impaneled grand jury.
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What is presentment?
A written accusation of a crime prepared and returned by a grand jury from its own knowledge or observation w/o any appropriate bill laid before them.
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What is an information?
A written accusation of a crime or a complaint for forfeiture of property/money, prepared and presented by a competent public official upon his oath or office.
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Irregularities in time or manner don't vitiate the indictment because they are considered harmless errors. What are the exceptions?
Failure to state and offense. Systematic exclusion from grand jury on basis of race.
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What is necessary for an indictment?
D may not be tried for a felony unless an indictment or presentment has been found or made by the proper grand jury unless D waives this right.
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What is an arraignment?
For felony, not necessary if waived by accused; for misdemeanor, not necessary if waived or D fails to appear.
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What is the VA discovery rule?
A trial court can order discovery of statements or confession of the D which includes written and recorded statements of accused in connection w/ a particular case or oral statements only if made to law enforcement officers.
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What are the requirements for VA discovery?
Discoverable items must be relevant AND items must be known to be w/in possession, custody, or control of commonwealth.
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What is reciprocal discovery?
If discovery is granted to defense, P may motion the court for reciprocal discovery. Attaches only after the defense has been permitted some discovery of state's case.
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What is the general rule for habeas corpus in VA?
A civil trial in which a D is acting as the civil P and is suing the govt for a constitutional violation.
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What are the two possible grounds for habeas corpus in VA?
Basis of holding D ins unconstitutional OR manner of holding D is improper or unconstitutional.
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What is the venue for VA habeas corpus?
Case must be filed where D was original sentenced, except in death penalty cases which go straight to the supreme court.
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What are non-waivable rights?
Appearance and failure to state an offense.
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What are the waivable rights by affirmative action?
Counsel, Miranda, jury trial.
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When are all other rights waived?
Failure to assert them.
