Criminal Procedure Flashcards
1
Q
Fourth Amendment
A
The Fourth Amendment’s Search and Seizure Clause, applicable to the states through the Fourteenth Amendment’s Due Process Clause, prohibits government warrantless searches and seizures with limited exceptions.
2
Q
The Three S’s
A
For the Fourth Amendment to apply, there must be state action, the defendants must have standing, and a search or seizure must have occurred.
3
Q
State Action
A
The Fourth Amendment limits only state actors.
- ex: police, IRS, school teacher, prison nurse, probation agent.
- ex: if police/state actor direct a private entity to search/seize, Fourth Amendment applies.
4
Q
Standing
A
Standing requires that the person challenging a search or seizure have a reasonable expectation of privacy in the place searched or item seized.
5
Q
Reasonable Expectation of Privacy (REP)
A
An REP is a reasonable (objective) expectation (subjective) of privacy that society is willing to accept as legitimate.
6
Q
REP in Certain Places
A
There is an REP in def’s own home, body, in home where def is overnight guest, def’s car, car where def is driver.
There is NO REP when def is daytime guest, guest for illegal purposes, or car passenger.
7
Q
Reduced REP
A
There is a reduced REP in schools, airports, prisons.
8
Q
REP in Abandoned Property
A
If property is voluntarily abandoned, there is NO REP. If the abandonment is coerced by illegal search or seizure, which caused def to abandon property, there IS an REP.
9
Q
United States v. Jones: Trespass
A
Police attaching a GPS device to car is a search, but not because of traditional REP analysis, but because at the time of the founding, it would have been a trespass.
10
Q
Seizure
A
An encounter with a state actor where, due to a show of force or authority, a reasonable person would not feel free to leave, and def yields or is captured.
11
Q
Accosting
A
An accosting is an interaction with gov’t actors/law enforcement without any show of authority and is not a search or seizure under the Fourth Amendment.
12
Q
Stop
A
A stop is a limited detention for investigative purposes where a reasonable person would not feel free to leave.
Property detained for brief period.
13
Q
Arrest
A
A full-blown seizure where a reasonable person would feel freedom to leave was restricted in a significant way.
A full-blown seizure of property–property taken and fully searched or kept.
14
Q
Search
A
Any state action that is an intrusion upon or invasion of def’s REP. Includes a frisk (limited search), a full-blown search, or a trespass.
15
Q
Compliance
A
If there is state action, standing, and a search or seizure, the Fourth Amendment requires a warrant based on probable cause or an exception.
16
Q
Probable Cause
A
A reasonable belief, under the totality of the circumstances, that it is more likely than not that:
Arrest: person committed crime
Search: evidence is in place to be searched
Seizure: item is evidence of a crime or contraband.
17
Q
Sources of Probable Cause
A
Government must have reliability and basis to support probable cause.
18
Q
Probable Cause: Reliability
A
Is informant/source objectively believable? Factors:
(1) if person gives information from personal knowledge and under oath–very reliable
(2) reliable hearsay. Note the difference between a concerned citizen who gives their own name, a reliable past informant, and an anonymous source.
(3) corroboration
(4) reputation.
19
Q
Probable Cause: Basis
A
What is the basis of informant’s knowledge?
(1) affiant’s personal knowledge
(2) informant’s hearsay
- details can indicate personal knowledge, note the level, amount of detail. Is this something anyone would know? Or something unique?
- self-incriminating detail tends to be more reliable.
20
Q
Illinois v. Gates
A
Reliability and basis are evaluated together under the totality of the circumstances. Strength in one can compensate for weakness in the other.
21
Q
Probable Cause: Staleness
A
Probable cause is too old to justify acting on it. Two forms:
(1) time from information to warrant. Consider length of time, items to be seized (guns v. drugs v. blood), and place to be searched (def’s home v. occasional hangout).
(2) time from warrant to execution. Usually, this limit is set by statute.
22
Q
Warrant Requirements
A
A complete warrant includes an affidavit of the affiant detailing the support for probable cause and the warrant itself. Also required:
(1) personal appearance of affiant (phone OK if sworn);
(2) testimony to facts under oath;
(3) facts testified to must support PC;
(4) signed by a neutral and detached magistrate;
(5) particularity–must describe the places to be searched and items to be seized with reasonable particularity.
23
Q
Four Corners Rule
A
A reviewing court looks only to the contents of the warrant to determine whether there was probable cause.
Ex: informant lies, and there is evidence that proves it, so what. Within the four corners of the warrant/affidavit, there was PC.
24
Q
Exception to Four Corners: Franks Hearing
A
If def can make a substantial showing that affidavit contained false statements, he is entitled to a Franks hearing. At hearing, def must show, by a preponderance of the evidence, that (1) affidavit contained false statements; (2) statements were made knowingly or with reckless disregard for truth; and (3) without statements, PC does not exist.
25
Reasonable Execution Requirement
Officers executing warrant must use reasonable force and knock & announce, but there is no penalty if they fail to do so.
26
Protective Sweep
When executing a warrant, officers may search area immediate to def for additional people who may pose a risk to officers. If the protective sweep leads to reasonably articulable suspicion, officers may search further.
27
Exceptions to the Warrant Requirement
Gov't may search or seize without a warrant provided that an exception applies. Remember: CAN STRIP SEARCH
Consent search
Arrest (Warrantless Arrest Exception)
National Security
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Special Needs
Terry Stop & Frisk
Regulatory
Inventory
Plain Sense
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SILA (search incident to lawful arrest)
Evanescent Evidence
Automobile Exception
Roadblock
Community Caretaker Function
Hot Pursuit
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28
Consent Exception
Voluntary consent waives warrant requirement.
* must be voluntary (i.e., not coerced)
* police do NOT have to advise of right to refuse
29
Third-Party Consent
Police may act upon the actual or apparent consent of a third party.
* apparent = if police reasonably believe that 3d party has authority to consent
* if another authorized owner is present and objects, there is NO consent. But, police can wait until that person leaves and get consent of other owner.
30
Scope of Consent Search
The proper scope of a consent search is determined by the reasonable interpretation of the terms of consent.
31
Warrantless Arrest Exception
The warrantless arrest exception will validate a warrantless arrest if there is probable cause to believe that the def has committed a misdemeanor in the officers' presence or a felony and the arrest is made in a public place or a place where the officer has a right to be.
* if arrest is made without a warrant, there must be a judicial determination of probable cause within 48 hours.
* arrest after development of PC must be reasonably prompt.
32
National Security Exception
Warrantless wiretaps are allowable and admissible when dealing with national security in foreign affairs, but the Fourth Amendment requires prior judicial approval for domestic security surveillance by issuance of a wiretap warrant.
33
Border Search Exception
Police or border guards may make routine searches of persons and their effects without a warrant, probable cause, or reasonable suspicion at or near the borders.
* a post office is the functional equivalent of a border for international mail; however, mail is afforded greater protection requiring reasonable suspicion to open, and a warrant to read, correspondence. .
* an airport is the functional equivalent of the border for international flights.
34
Road Blocks
Roadblocks that warrantlessly stop all cars, even absent RAS or PC, at a fixed check point for reasons that are NOT primarily criminal-prosecution based, are permitted because they address a serious governmental interest and a minor inconvenience for the citizen.
*unannounced roadblocks to check for drunken drivers are permissible for purpose of addressing the immediate health risks posed by drunk driving.
35
Search Incident to Lawful Arrest (SILA)
The SILA exception permits a warrantless search of the def and the area within the def's immediate control when made incident to a lawful arrest.
* arrest must be lawful--with a warrant or based on an exception. If arrest is not lawful, search is likewise unlawful.
* even if officer has no right to arrest under state law, making the arrest unlawful under state law, if the police had probable cause to believe the def committed a crime in the officer's presence, the SILA does not violate the Fourth Amendment.
36
Hot Pursuit Exception
If the police have PC to believe that an individual has committed a felony and they are pursuing him to arrest him, they have the right to enter a private building during the pursuit, to search that building while they are present on the premises, and to seize evidence found there.
*does NOT apply to misdemeanors.
37
Evanescent Evidence Exception
A warrantless search is authorized whenever there is a reasonable apprehension that the delay required to obtain a warrant would frustrate the search because the nature of the evidence is such that it will dissipate quickly if no action is taken.
*ex: the taking of a blood test without a search warrant from a driver at the scene of arrest for drunk driving.
38
Automobile Exception (a/k/a the Carroll Doctrine)
Under the automobile exception, officers can conduct a warrantless search of a vehicle if the officers have probable cause to believe there is contraband or evidence of a crime in a vehicle.
*police do not need a warrant to search a vehicle, EVER.
39
Stop and Frisk Exception
Under the Stop and Frisk Exception, police may stop a person for investigative purposes if the officer has a reasonable articulable suspicion (RAS) that criminal activity is afoot and the detainee is involved. The exception also permits a frisk (pat down of outer clothing) of a person for weapons only if the officer has RAS that detainee is armed and dangerous.
* show of authority or force is required for stop.
* reasonable person would not feel free to leave. ex: when police take and retain an airline passenger's ticket and ID, a stop has occurred.
40
Pretextual Stops
An officer may stop and temporarily detain a motorist for minor traffic violations, even if the officers real motivation is to conduct a drug investigation.
41
Frisk
The right to frisk does not flow automatically from stop--must have separate RAS that suspect is armed and dangerous. Officer may only pat down outer clothing and seize anything that feels like a weapon--NOTHING ELSE.
* seizure of other items felt during frisk may be authorized under the plain feel exception. See card.
* item must "feel like a weapon." It is NOT necessary that item be immediately recognizable as a weapon as in the plain view or plain feel exception.
42
Ripening
Information learned as a result of the stop may confirm the officer's suspicions and ripen into probable cause.
*note that probable cause alone may not justify a warrantless arrest, but could if coupled with another exception such as the warrantless arrest in a public place.
43
Stop and Frisk--Automobiles
Officers may "stop" a vehicle based on RAS and order driver from the car.
Officers may "frisk" a car, including passenger compartment and glove box, if there is RAS that driver is armed or may obtain a weapon from the car. Closed containers that may contain a weapon may be searched.
Passengers may also be ordered from the car; however, to detain a passenger any further, officer must have separate RAS for that passenger.
44
Plain View Exception
The plain view exception permits police to seize an item in plain view where police are in a place they have a right to be and the item is immediately recognizable as evidence of a crime.
45
Plain Feel Exception
The plain feel exception permits warrantless seizure of an item where police legally have their hands on def and feel an item that is immediately recognizable as evidence of a crime.
*manipulation = NOT immediately apparent.
46
Community Caretaker Function
The community caretaker exception permits warrantless searches or seizures unrelated to law enforcement for the purpose of (1) aiding persons in apparent need of assistance; or (2) to protect property.
47
Inventory Exception
The inventory exception permits routine warrantless searches of property that is lawfully in police custody in order to protect the police and minimize disputes.
*not to be used as a subterfuge for search for incriminating evidence. This is not a search for law enforcement purposes.
48
Administrative Search Exception
The administrative search exception permits regular, routine administrative warrantless searches of dwellings and businesses pursuant to regulatory health and welfare schemes (i.e., fire, health, or housing)
49
Special Needs Exception
Special needs unrelated to law enforcement may allow warrantless searches and seizures in order to protect the public from a serious problem and where the search or siezure is of a limited, less intrusive nature.
*ex: mandatory drug testing for high school students, public employees
50
The Exclusionary Rule
The remedy for an illegal search or seizure is suppression of the direct products of the illegal action at criminal trials.
*rule applies only in criminal trials, NOT grand jury proceedings, non-capital sentencings, preliminary hearings, civil trials, forfeiture, or deportation proceedings.
51
Fruit of the Poisonous Tree Doctrine
The exclusionary rule also requires suppression at criminal trials of indirect products of illegal government actions.
*applies not just to physical evidence, but also suppresses verbal statements that arise from an illegal search or arrest.
52
Exclusionary Rule Exception: Attenuation
Evidence that is the product of an illegal search or seizure will be admissible if there is a sufficient break in the causal connection between the illegal activity and the evidence obtained. Consider timing, flagrancy of police action, intervening circumstances, live testimony (more likely attenuated) or physical evidence.
*the giving of Miranda warnings after an illegal arrest/seizure is often a sufficient intervening cause for attenuation--but not always.
53
Exclusionary Rule Exception: Inevitable Discovery
If the prosecution can establish by a preponderance of the evidence that unlawfully obtained evidence inevitably would have been discovered by lawful means, the exclusionary rule does not apply.
54
Exclusionary Rule Exception: Independent Source
If evidence is obtained via illegal gov't action, but legal police conduct is also responsible for obtaining the evidence, the exclusionary rule does not apply.
55
Exclusionary Rule Exception: Good Faith
If officers acted in reasonable reliance on a facially valid search warrant, the exclusionary rule will not apply.
56
Exclusionary Rule Exception: Administrative Errors
The exclusionary rule will not apply if erroneous information based on negligent (not intentional or reckless) actions of court employees resulted in illegal search or seizure.
57
Confession Suppression
Confessions may be suppressed based upon a violation of:
(1) 4th Amendment Search and Seizure Clause (fruit of poisonous tree)
(2) 5th Amendment Privilege Against Self Incrimination; or
(3) 6th Amendment Right to Counsel
58
Motion to Suppress Confession
The prosecution bears the burden of proving by a preponderance of the evidence that the confession was both (1) voluntary; and (2) obtained in conformity with Miranda.
*def may always argue voluntariness to the jury; but may NOT argue Miranda violation after judge has ruled that there was no violation.
59
Fifth Amendment Privilege Against Self-Incrimination: Applicability
The privilege may only be invoked by individuals and only for testimonial evidence, not physical evidence such as blood samples, DNA samples, or handwriting samples.
*privilege may be invoked in any proceeding, civil or criminal, formal or informal, if the answers might incriminate him in future criminal proceedings.
polygraph test results and records required to be kept by law or in the course of business ARE testimonial
*also only applies to incriminating statements. Statements are NOT incriminating if:
- DJC bars additional prosecution or punishment;
-the statute of limitations has passed;
-the accused has been pardoned; or
-the accused has been granted uses and fruits immunity
60
Fifth Amendment Voluntariness
If state action overbears the will of the accused and causes the confession, the confession is coerced and involuntary.
*factors--conduct of police, circumstances of statement, and characteristics of accused (age, sex, health, education, experience with criminal justice system, intoxication)
61
Maryland Voluntariness
Maryland requires suppression of any confession given in RELIANCE on any improper threats, promises, or inducements.
62
Miranda
The Fifth Amendment requires suppression of statements given during a custodial interrogation in the absence of Miranda warnings.
63
Miranda: Custody
A person is in custody for Miranda purposes if a reasonable person would feel her freedom to leave was restricted in a significant way.
* age is a relevant consideration.
* roadside questioning of a motorist is NOT custody
* jail plants--an imprisoned suspect is NOT in custody where he speaks to an undercover officer that he believes is a fellow inmate.
64
Miranda: Interrogation
Miranda interrogation is any words or actions that police know or should know are likely to elicit an incriminating response.
65
Miranda Exception: Routine Booking Questions
Miranda warnings are not required when police seek biographical information from an arrestee.
66
Miranda Exception: Public Safety Exception
Police may ask questions without Miranda warnings in emergency situations where public safety is of concern.
67
Miranda: Invoking Right to Counsel
Questioned individual must clearly and unequivocally invoke right to counsel, and once he does so, the interrogation must immediately cease.
* if accused later initiates communication with police, questioning may continue
* if accused is released and remains free for 14 days or more, police may attempt to obtain a new Miranda waiver.
* Fifth Am right to counsel under Miranda IS charge-specific, police may not question without counsel even regarding a completely unrelated charge.
68
Miranda: Invoking Right to Silence
Questioned individual must clearly and unequivocally invoke right to silence, an once he does so, the interrogation must cease.
* police may wait a reasonable amount of time and try again.
* silence = waiver once def starts to talk to police (i.e., merely remaining silent in the face of police interrogation is not an assertion of the right).
69
Miranda: Waiver
To waive his Miranda rights, a defendant must know of the rights, understand them, and voluntarily agree to waive them.
*waiver may be express or implied from conduct
70
Impeachment via Miranda Silence
Impeachment use of a defendant's post-arrest, post-Miranda silence violates the Due Process Clause. Use of pre-arrest, pre-Miranda silence does not.
*Defendant can "open the door" to post-Miranda silence if he brings it up.
71
Admissibility of Illegally-Obtained Confessions
An involuntary statement under the Fifth Amendment is inadmissible for ANY reason.
If a confession is made while in custody following an arrest made in violation of the 4th Admendment, it is inadmissible. But if made several days after release from that illegal arrest, it is admissible. In either event, can be used to impeach testifying defendant.
If a SECOND confession is made after an initial Miranda violation, the second confession is not per se FOPT--court will evaluate Miranda and voluntariness anew, but considering the initial confession as a factor.
Statement taken in violation of Miranda or Sixth Amendment can be used for impeachment.
72
Sixth Amendment Right to Counsel
The Sixth Amendment, applicable to the states via the DPC, provides that the accused is entitled to the effective assistance of counsel at all critical stages of criminal proceedings after formal charges have been lodged against defendant.
* arrest IS NOT equivalent to formal charges.
* this right IS charge specific--police can approach accused about a different charge outside the presence of counsel
* Exception: If you were appointed an attorney (did not verbally invoke the right), and you have never invoked the right in response to police attempts at a waiver, the police can approach you once to attempt to get a waiver.
73
Sixth Amendment Confessions
Where the government deliberately elicits incriminating information from a defendant, after he is formally charged/indicted, and in the absence of counsel, that constitutes a violation of the Sixth Amendment and therefore the statements are inadmissible.
*Distinguish: jail stool pigeons (inmate who reports D's confession--NO state action) vs. jail plants (undercover cop put into D's cell to get confession--violates 6th Am, but NOT 5th b/c no police-coercive atmosphere).
74
Sixth Amendment: Critical Stages
The defendant has the right to counsel at all "critical stages" of the prosecution, which includes custodial interrogations, post-indictment line-ups, the preliminary hearing, arraignment, initial appearance, at trial, at sentencing, and during the first appeal of right.
*probable cause hearings to determine probable cause following warrantless arrest and bail review hearings are NOT critical stages.
75
Sixth Amendment: Effective Assistance of Counsel
Standard is reasonably effective assistance. Defendant must show that (1) counsel's performance was deficient, objectively unreasonable; and (2) counsel's errors prejudiced the defense, meaning that the errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.
76
Sixth Amendment: Conflicts of Interest
If defendant fails to object to a conflict of interest, he must demonstrate that conflict actually affected counsel's performance in order to reverse conviction. Reversal is automatic where defense counsel is forced to represent codefendants over his timely objection, unless the trial court has determined that there is no conflict.
77
Sixth Amendment: Right to Jury
The Sixth Amendment, applicable to the states through the DPC, guarantees the right to a jury in criminal cases whenever the authorized punishment may exceed a six-month jail term.
*no aggregation. even if def is charged with multiples crimes, if he faces no more than six months on any one of the charges, no jury is required.
78
Due Process: Right to Jury
The Due Process Clause requires a minimum of six jurors.
*if the constitutional minimum of six jurors is provided, the verdict must be unanimous. If there are 12 jurors in a non-1st degree murder trial, unanimity is not required.
79
Equal Protection: Jury Selection
The Equal Protection Clause prohibits discrimination in the selection of grand juries and bars criminal defendants and prosecutors from exercising peremptory challenges on the basis of race in petit jury selection.
*applies to gender, too.
80
Sixth Amendment: Speedy Trial
The Sixth Amendment right to a speedy trial, applicable to the states through the DPC, requires trial within a reasonable time after indictment.
81
Speedy Trial: Barker v. Wingo Factors
If the defendant is brought to trial more than six months from the time he was charged/arrested, courts will balance (1) the length of the delay; (2) the reasons for the delay; (3) the defendant's assertion of his right to a speedy trial; and (4) prejudice to the defendant.
82
Speedy Trial: Pre-Indictment Delay
The Sixth Amendment speedy trial right does not apply before formal charges are filed, but the Due Process Clause limits delay prior to formal charging. Def must show (1) actual and substantial prejudice; and (2) prosecutorial bad faith.
83
Sixth Amendment: Right to Public Trial
The Sixth Amendment right to a public trial, applicable to the states via the DPC, requires that absent an overriding interest articulated by the court, the trial of a criminal defendant must be open to the public.
84
Confrontation Clause: Defendant's Presence at Trial
The Confrontation Clause of the Sixth Amendment, applicable to the states through the DPC, reflects a PREFERENCE for face-to-face confrontation at trial, a preference that must occasionally give way to consideration of public policy and the necessities of the case.
* ex: allowing child sexual assault victims to testify outside presence of def.
* a def who interferes by noisy, disorderly, or disruptive conduct can waive this right.
85
Confrontation Clause: Crawford Rule
The Confrontation Clause bars admission at a criminal trial of all out-of-court testimonial statements without cross-examination UNLESS
(1) the declarant is unavailable; AND
(2) def had a prior opportunity to cross-examine; OR
(3) forfeiture by wrongdoing.
86
Crawford: Testimonial Defined
Statements are testimonial if the declarant would reasonably expect them to be used in a subsequent prosecution.
* also testimonial are statements made to police where there is no ongoing emergency and the primary purpose was to document past events for a later prosecution.
* NOT testimonial: business records, statements made during and in furtherance of a conspiracy (co-conspirator's confession is NOT in furtherance of conspiracy), dying declarations, 911 calls.
87
Severance: The Bruton Rule
Bruton v. United States established a constitutional right of severance if, in a joint JURY trial, the prosecution intends to introduce a confession by one defendant that implicates both the confessing and non-confessing defendant, UNLESS:
(1) the confession can be redacted so that the confession no longer even impliedly inculpates the non-confessing def; OR
(2) the confessing defendant testifies.
*the rule applies even where both defendants give interlocking confessions.
88
Joinder
A motion for joinder asks that the trial of multiple charges or multiple defendants be tried in a single trial.
89
Severance
A motion for severance asks that the trial of multiple defendants or multiple charges be separated and tried individually.
90
Guilty Pleas
Guilty plea must be knowing, intelligent, and voluntary waiver of constitutional rights and based upon an adequate factual basis for guilt beyond reasonable doubt.
* Alford plea-defendant denies guilty but admits that conviction is likely.
* nolo contendre plea-defendant is not admitting guilt, but accepting punishment, not an admission of any kind.
91
Maryland Speedy Trial: Hicks Rule
Maryland requires trial within 180 days of earlier of arraignment in circuit court or entry of counsel in circuit court, unless there is good cause to postpone.
*time does NOT start at arrest or district court proceedings -- No Hicks rule in district court.
92
Double Jeopardy Clause
The Fifth Amendment Double Jeopardy Clause, applicable to the states through the DPC, prohibits multiple criminal prosecutions or punishments for the same offense.
*jeopardy attaches in a jury trial when jury is empaneled and sworn; in a bench trial, jeopardy attaches when the first witness is sworn or first item of evidence introduced; where def enters guilty plea, jeopardy attaches when court finally accepts plea.
93
Double Jeopardy Clause: "Same Offense"
Under the Blockberger required evidence test, if two different crimes are committed in the same criminal transaction, they are the same offense if all the elements of one offense are also contained within the other offense.
* if ALL the elements of a crime are included in another crime, the wholly subsumed crime is a "lesser included offense" of the greater offense.
* if EACH crime requires an element that the other does not, they are not lesser included and greater offenses.
94
Double Jeopardy Clause: Separate Prosecutions
If the defnedant is prosecuted for an offense, generally, that defendant cannot be prosecuted for a greater or lesser included offense for which the defendant was already tried, UNLESS (1) the elements of the second offense had not occured at the time of the initial prosecution; and (2) using reasonable diligence, the prosecution could not have been aware of all these elements.
95
Double Jeopardy Clause: Same Criminal Transaction
xx
96
Double Jeopardy Clause: Merger of Offenses/Punishments
If one crime is a lesser included offense of a greater offense, merger of the convictions is mandatory--court MUST merge the convictions, and the defendant can be sentenced for the greater offense only.
97
Double Jeopardy Clause: Discretionary Merger
When one offense is not a lesser included offense of the other, merger is not mandatory. However, a court may, in its discretion, chose to merge the offenses for sentencing purposes.
*a/k/a "lenity"
98
Double Jeopardy Clause: Retrial After Acquittal
x
99
Double Jeopardy Clause: Retrial After a Mistrial
If defendant consents, or if mistrial is upon D's own motion, the jeopardy bar is generally waived, and D may be retried for same offense. If D does not consent, double jeopardy bars mistrial unless there was a manifest necessity for granting the mistrial, or it is otherwise dictated by the ends of public justice.
100
Double Jeopardy Clause: Retrial After Conviction (Procedural Appeal)
If a defendant appeals his conviction due to procedural error, he has waived his jeopardy objection, and may be retried if the appeal is successful.
101
Double Jeopardy Clause: Retrial After Conviction (Substantive Appeal)
If conviction is reversed on appeal due to insufficient evidence, a second trial is barred by the DJC. If that finding of insufficiency is reversed by a higher court, the conviction CAN be reinstated.
*note the difference between weight and sufficiency reversals. A weight reversal occurs where though, if believed, the evidence would establish every element, nevertheless the evidence is deemed to lack credibility to support the verdict. Retrial IS ALLOWED for weight reversals.
102
Double Jeopardy Clause: Collateral Estoppel
When an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future trial.
*ex: D was accused of robbing five men at a poker game, tried for robbing one of the five, and acquitted. DJC barred trial for robbery of another of the victims because after jury determined that D was not one of the robbers, the State could NOT constitutionally hale him before a new jury to litigate that issue again.
103
Double Jeopardy Clause: Trial De Novo Option
Under a state system where D can elect (1) a jury trial with the normal right of appellate review upon conviction; or (2) a bench trial with a right to trial de novo (without need to show error), DJC does NOT bar second trial de novo.
104
Double Jeopardy Clause: Civil Penalties
A civil sanction is punishment under DJC only when D demonstrates by "clearest proof" that (1) penalty had historically been viewed as punishment; (2) the penalty imposes an affirmative disability or restraint; (3) the sanctions come into play only on a finding of scienter; (4) the conduct sanctioned may also be criminally prosecuted; and (5) the penalty is imposed for deterrent or retributive purposes.
105
Double Jeopardy: Resentencing
Where a defendant's conviction is reversed and he is retried, the DJC requires that time served be subtracted from new sentence on same offense, and if re-sentenced by the SAME judge, the defendant may NOT receive a higher sentence than the first, unless there is objective information arising AFTER the time of the first sentencing to support a higher sentence.
106
Eighth Amendment: Cruel & Unusual Punishment
The Eighth Amendment, applied to the states through the DPC, prohibits cruel & unusual punishment, meaning punishment that is either barbaric or grossly disproportionate.
* barbaric means excessive for any crime (e.g., old-fashioned torture)
* grossly disproportionate is judged under society's evolving standards of decency.
107
Eighth Amendment: Excessive Bail
The Eighth Amendment prohibition on excessive bail, though not applicable to the states through the DPC, has been adopted by Maryland's constitution. Excessive bail is bail that is intended to punish; bail is permitted only to guarantee appearance at at trial.
108
Reasonable Articulable Suspicion
A stop or frisk is unlawful when based solely on a hunch, an unarticulated reason.
*e.g., merely stating that person fit profile of drug courier is insufficent, unless there is objective manifestation.
109
Reasonable Articulable Suspicion & Anonymous Tips
The police may stop and question a person based on information supplied by an anonymous tip, but only if the tip bears sufficient indicia of reliablity as to the illegality and identity of the person or by police corroboration of significant aspects of informant's predictions.
*note that tips from concerned citizens, not anonymous, are inherently reliable.
110
Privilege Against Self-Incrimination
The government may compel incrimination immunity if it grants use and derivative use immunity (uses and fruits) to the individual.
Use Immunity--compelled statement cannot be used against confessor, meaning the statement itself cannot be offered into evidence against the confessor.
Derivative Use Immunity--statement and any evidence derived from the compelled statement cannot be used against confessor.
Transactional Immunity--immunity from prosecution for offenses to which the compelled testimony relates.
