Criminal Procedure AMP - Right To Counsel And Pretrial ID Flashcards
Some constitutional rights applicable in criminal cases are offense specific (i.e., when invoked, they apply only to the specific charge for which they were invoked), and some are not offense specific (i.e., once invoked, they apply to all charges against the defendant and not just the charge for which they were invoked). The Fifth Amendment is ___________; the Sixth Amendment is ___________.
A Offense specific; also offense specific
B Offense specific; not offense specific
C Not offense specific; not offense specific either
D Not offense specific; offense specific
D
The correct choice is that the Fifth Amendment is not offense specific, but the Sixth Amendment is offense specific. Thus, if a defendant invokes his right to counsel under the Fifth Amendment, the police cannot interrogate the defendant about any charge without counsel. But under the Sixth Amendment, the defendant can be interrogated regarding a different charge. The difference is significant when a defendant requests counsel after being charged and is put into a cell with an informer. The Sixth Amendment right to counsel applies to any post-charge interrogation—whether or not the defendant knows he is being interrogated by a government agent. The Fifth Amendment right to counsel, on the other hand, applies only when the defendant knows that he is being interrogated by a government agent. Thus, an undercover informer in the defendant’s cell can question the defendant about anything without violating his Fifth Amendment right to counsel, and under the Sixth Amendment, the informer can question the defendant about any crime but the one with which he is charged. Therefore, if the cellmate informer questions the defendant and obtains information regarding a crime different from the one with which the defendant was charged, the questioning does not violate either the Fifth or the Sixth Amendment. QUESTION ID: R0004A Additional Learninga
The following are factors in determining whether a defendant’s right to speedy trial has been violated:
A Length of the delay; whether the defendant asserted his right; prejudice to the defendant; prejudice to the state
B Length of the delay; prejudice to the defendant; prejudice to the state
C Reason for the delay; whether the defendant asserted his right; prejudice to the defendant; prejudice to the state
D Length of the delay; reason for the delay; whether the defendant asserted his right; prejudice to the defendant
D
A determination of whether the defendant’s right to a speedy trial has been violated will be made by an evaluation of the totality of the circumstances. The following factors should be considered:(i) Length of the delay;(ii) Reason for the delay;(iii) Whether the defendant asserted his right; and(iv) Prejudice to the defendant. Prejudice to the state is not a consideration. QUESTION ID: R0019A Additional Learning
The Sixth Amendment provides that in all criminal prosecutions, the defendant has a right to the assistance of counsel. The right protects defendants from having to face a complicated legal system without competent help. It applies at all critical stages of a criminal prosecution after formal proceedings have begun.
At which of the following stages does a defendant not have a constitutional right to be represented by counsel?
A At a preliminary hearing to determine probable cause
B At a pre-charge investigative lineup
C At an arraignment
D At appeals if the defendant has a right to appeal
B
A defendant does not have a constitutional right to be represented by counsel at a pre-charge investigative lineup or photo identification. There is a right to counsel at a post-charge lineup. A defendant does have a right to be represented by counsel, or to have counsel appointed for him by the state if he is indigent, at an arraignment, and a preliminary hearing to determine probable cause, and at an appeal if the defendant has a right to appeal. A defendant has a constitutional right to representation of counsel at the following critical stages: 1. Post-indictment interrogation whether custodial or not;2. Preliminary hearings to determine probable cause to prosecute;3. Arraignment;4. Post-charge lineups;5. Guilty plea and sentencing;6. Felony trials;7. Misdemeanor trials when imprisonment is actually imposed or a suspended jail sentence is imposed;8. Overnight recesses during trial;9. Appeals as a matter of right; and10. Appeals of guilty pleas and pleas of nolo contendere. There also is a Fifth Amendment right to counsel at all custodial police interrogations. QUESTION ID: R0003 Additional Learning
A defendant has a right to be released from pretrial detention unless there is __________.
A Probable cause to detain him
B Proof of guilt beyond a reasonable doubt
C Clear and convincing evidence to detain him
D Proof of guilt by at least a preponderance of the evidence
A
A defendant has a Fourth Amendment right to be released from detention if there is no probable cause to detain him. Thus, a defendant has a right to a determination of probable cause. There need not be: Proof of guilt by at least a preponderance of the evidence; Clear and convincing evidence to detain him; or Proof of guilt beyond a reasonable doubt. QUESTION ID: R0016B Additional Learning
In criminal cases, certain rights may be waived. Which of the following statements is correct regarding waiver of the right to counsel under the Fifth and Sixth Amendments?
A The Sixth Amendment right to counsel may be waived by a knowing and voluntary waiver, but the Fifth Amendment right cannot be waived.
B The Fifth and Sixth Amendment right to counsel may each be waived by a knowing and voluntary waiver.
C The Fifth Amendment right to counsel may be waived by a knowing and voluntary waiver, but the Sixth Amendment right cannot be waived.
D Neither the Fifth nor Sixth Amendment right to counsel can be waived, because the rights provided by each are fundamental to a fair trial.
B
The correct choice is the Fifth and Sixth Amendment right to counsel may each be waived by a knowing and voluntary waiver. Whether a waiver is knowing and voluntary is judged by a totality of the circumstances. Note that as to the Fifth Amendment, if a defendant is given Miranda warnings (e.g., notice of a right to counsel and to remain silent) and chooses to speak, the court usually will find a valid waiver. Indeed, to exercise the Fifth Amendment right to counsel, the defendant must make an unambiguous and specific request for counsel. Words like “Maybe I should talk to a lawyer,” do not equal a request to do so. Note also that the Supreme Court has held that waiver of the Sixth Amendment right to counsel does not require the presence of counsel, unless the defendant had already requested counsel. QUESTION ID: R0005 Additional Learning
The Sixth Amendment right to counsel applies __________.
A only after adversary judicial proceedings have begun
B only at interrogations performed by one known to be a government agent
C whenever a defendant gives a blood sample
D whenever an informant is placed in the defendant’s cell
A
The Sixth Amendment right to counsel applies only after adversary judicial proceedings have begun (e.g., formal charges have been filed). It is not true that the Sixth Amendment applies whenever an informant is placed in the defendant’s cell. It applies when an informant is placed in a defendant’s cell after adversary judicial proceedings have been initiated. But there is no Sixth Amendment violation just because an informant is placed in the defendant’s cell after charges are filed. There is a violation only if the informant does something designed to elicit incriminating remarks. The choice providing that the Sixth Amendment applies only at interrogations performed by one known to be a government agent is too limiting to be correct. A limitation like this one applies to Miranda warnings. The warnings must be given before interrogation by one known to be a government agent in order to offset the coercive nature of police interrogation. A similar rule does not apply under the Sixth Amendment right to counsel. The Sixth Amendment right to counsel applies to all post-charge interrogations, whether or not the defendant knows he is speaking to a government informant. Finally, the blood sample choice is incorrect. The Sixth Amendment right to counsel applies at critical stages of a criminal prosecution after formal proceedings have begun, and the taking of a blood sample is not a critical stage. QUESTION ID: R0002 Additional Learning
The question of whether a defendant is competent to stand trial judges the defendant’s mental condition at the time:
A Of both the offense and trial
B Of trial
C Of the offense
B
Incompetency to stand trial depends on the defendant’s mental condition at the time of the trial, not at the time of the offense. Note this is in contrast to insanity, which turns on a defendant’s mental condition at the time of the crime. A defendant is incompetent to stand trial under the due process standard if, because of her present mental condition, she either: (i) lacks a rational as well as a factual understanding of the charges and proceedings; or (ii) lacks sufficient present ability to consult with her lawyer with a reasonable degree of understanding. QUESTION ID: R0020B Additional Learning
A defendant has a right to counsel during all custodial interrogations under the _______ Amendment and at all critical stages of a prosecution after formal proceedings have begun under the _______ Amendment.
A Sixth; Fifth
B Fifth; Sixth
C Sixth; Sixth
D Fifth; Fifth
B
The defendant has a right to counsel under the Fifth and Sixth Amendments. The Fifth Amendment right applies at all custodial interrogations, whereas the Sixth Amendment right applies at all critical stages of a prosecution after formal proceedings have begun, including trial. QUESTION ID: R0060 Additional Learning
An ineffective assistance of counsel claimant must show deficient performance and _______.
A that counsel was not acting pro bono
B that the deficient performance led to an adverse ruling by the judge
C that the result of the trial would have been different but for the deficient performance
D nothing more
C
An effective assistance of counsel claimant must show deficient performance and that the result would have been different but for the deficient performance (e.g., the defendant would not have been convicted or the sentence would have been shorter). An adverse ruling by the judge without actual prejudice to the defendant would not be sufficient to show ineffective assistance of counsel. The fact that the defense attorney may or may not have been acting pro bono (i.e., without payment) is irrelevant. QUESTION ID: R0061 Additional Learning
What is a charging grand jury responsible for determining?
A Whether an arrest warrant should be issued
B Whether the government has probable cause to prosecute
C Whether the government has proved its case beyond a reasonable doubts
B
The charging grand jury determines probable cause to prosecute by returning the bill of indictment submitted by the prosecutor as a “true bill.” Arrest warrants are issued by judicial officers, not by the grand jury, on probable cause to believe the named person has committed a crime. Proof beyond a reasonable doubt is the standard applied to determine guilt at trial—either by the petit (i.e., trial) jury or by the judge. QUESTION ID: R0017B Additional Learning
Incompetency to stand trial __________.
A depends on the defendant’s mental condition at the time of the crime
B is a defense to the criminal charge
C bars the defendant from being tried if she later regains her competency
D may be found if the defendant lacks a rational and a factual understanding of the charges and proceedings
D
A defendant is incompetent to stand trial under the due process standard if, because of her present mental condition, she either: (i) lacks a rational as well as a factual understanding of the charges and proceedings; or (ii) lacks sufficient present ability to consult with her lawyer with a reasonable degree of understanding. Incompetency to stand trial does NOT depend on the defendant’s mental condition at the time of the crime. It depends on a defendant’s mental condition at the time of trial, unlike insanity, which turns on a defendant’s mental condition at the time of the crime. Incompetency is NOT a defense to the criminal charge; it is a bar to trial. Insanity is a defense to the criminal charge. Although a defendant who is incompetent to stand trial cannot be tried, if she later regains her competency, she can then be tried and—unless she has a defense—convicted. On the other hand, a defendant acquitted by reason of insanity may not be retried and convicted, although she may be hospitalized under some circumstances. QUESTION ID: R0020 Additional Learning
The primary purpose of a preliminary hearing is to:
A Determine whether an arrest warrant should be issued
B Afford the defendant his first opportunity to cross-examine the witnesses against him
C Determine whether probable cause for detention exists
C
A defendant has a Fourth Amendment right to be released from detention if there is no probable cause to hold him. The purpose of a preliminary hearing is to determine whether probable cause for detention exists. The purpose of a preliminary hearing is NOT to determine whether an arrest warrant should be issued. Indeed, a preliminary hearing is held after arrest (but before trial). Additionally, a preliminary hearing need not be held at all if the arrest is pursuant to a grand jury indictment. If probable cause has already been determined (e.g., the arrest is pursuant to a grand jury indictment or an arrest warrant), a preliminary hearing is not necessary. A defendant does not have the right to cross-examine witnesses at a preliminary hearing. A preliminary hearing is an informal, ex parte, nonadversarial proceeding. QUESTION ID: R0016A Additional Learning
A defendant’s right to counsel at trial is provided for by the __________ Amendment.
A Fourth
B Fifth
C Sixth
C
A defendant’s right to counsel at trial is provided for by the Sixth Amendment. The Supreme Court has read a right to counsel into the Fifth Amendment, but the right applies at custodial interrogations by the police; it does not apply at trial. Among other things, the Fourth Amendment provides for a right to be free from unreasonable search and seizure, but it does not provide for a right to counsel. QUESTION ID: R0060A Additional Learning
In which of the following situations does a suspect have a Sixth Amendment right to counsel?
A When police take the suspect’s fingerprints.
B When police take handwriting exemplars from the suspect.
C At a photo identification.
D At a showup that takes place after formal charging.
D
A suspect has a right to the presence of counsel at a showup that takes place after formal charging. A showup is a one-to-one confrontation between the witness and the suspect for the purpose of identification. A suspect does NOT have the right to counsel when the police take his fingerprints. A suspect does NOT have the right to counsel at photo identifications. A suspect does NOT have the right to counsel when the police take physical evidence such as handwriting exemplars from him. QUESTION ID: R0015 Additional Learning
What are the two prongs of a successful ineffective assistance of counsel claim?
A Deficient performance by counsel and counsel was appointed by the court
B Deficient performance by counsel and adverse ruling from a judge
C Deficient performance by counsel and but for the deficient performance the result would have been different
C
An ineffective assistance of counsel claimant must show deficient performance by counsel and but for the deficient performance the result would have been different. An adverse ruling by the judge without actual prejudice to the defendant would not be sufficient to show ineffective assistance of counsel. The fact that the defense attorney was appointed by the court is irrelevant. QUESTION ID: R0061A Additional Learning
