Criminal Procedure (MBE/MEE) Flashcards
1
Q
Fourth Amendment: General Principles
A
- Basic Rule: Prohibits unreasonable searches and seizure
- Government Conduct: Protects only against government or police agency action; not private actors, unless private person directed by police or deputized private police
- Standing: D must have reasonable expectation of privacy as to places searched or items seized
2
Q
Seizure
A
Occurs when police, by means of physical force OR show of authority, terminate/restrain a person’s freedom of movement.
Test: Under the totality of the circumstances, would a reasonable person feel free to leave?
Types: Arrest, Stop and Frisk, Police Checkpoints, and Traffic Stops
3
Q
Seizure: Checkpoints
A
- Police may stop an automobile at a checkpoint without reasonable, individualized suspicion of a violation of the law if the stop is based on neutral, articulable standards and its purpose is closely related to an issue affecting automobiles
Note: Roadblock to perform sobriety checks has been upheld, while a similar roadblock to perform drug checks has not
4
Q
Seizure: Terry Stop
A
- Seizure: Temporary detention that constitues seizure if the officer, by means of physical force/show of authority, has in some way restrained (physical restraint or an order to stop) the liberty of a citizen
- Valid when an officer has a reasonable suspicion based on articulable facts that, under the totality of the circumstances, someone is engaged in criminal activity
5
Q
Seizure: Traffic Stops
A
Officers must have reasonable suspicion to stop a car, but do not need to have reasonable suspicion if they pull over everyone during a checkpoint
6
Q
Seizure: Arrest
A
- There must be probable cause to believe that the arrested individual has committed a crime
- Generally, requires an arrest warrant but can be with or without
Note: Police can arrest for ANY crime, even a non-jailable misdemeanor, without constituting an unreasonable seizure, if they have probable cause
7
Q
Seizure: Arrest Warrant
A
To be valid, an arrest warrant must:
* Be issued by a neutral magistrate;
* Upon a finding of probable cause; and
* Describe with particularity the D and the crime
8
Q
Seizure: Scope of Arrest Warrant
A
- Individual’s Home: Arrest warrant allows officers to enter an individual’s home to arrest that individual
- Third Party’s Home/Business: Arrest warrant does not authorize officers to enter a third party’s home/business absent a search warrant or an exception to the search warrant requirement.
9
Q
Seizure: Deficient Arrest Warrant
A
Does not invalidate arrest as long as there was probable cause
10
Q
Seizure: Warrantless Arrest
A
- Arrest warrant not needed in public place, felony, or misdemeanor in arresting party’s presence
- In determining whether crime was committed, question is whether officer could conclude under totality of circumstances that there was a substantial chance of criminal activity
11
Q
Seizure: Scope of Warrantless Arrest
A
Absent an arrest warrant, officers can only arrest someone inside a dwelling if:
* There are exigent circumstances (e.g., felony hot pursuit); or
* There is consent to enter
12
Q
Seizure: Illegal Arrest
A
- Invalid arrest alone not a defense to crime charged
- May result in exclusion of evidence discovered during arrest
13
Q
Seizure: Pretextual Arrest
A
As long as police have PC to believe an individual committed a crime, it is irrelevant whether the officer stopped that person for the crime for which there is PC or for some other crime
14
Q
Facts Supporting Probable Cause
A
- Officer’s personal observations
- Information from reliable, known informant or verified unknown informant
- Evidence seized during stop and based on reasonable suspicion, discovered in plain view, or during consensual search
15
Q
Search
A
Occurs when government conduct violates a reasonable expectation of privacy or physically intrudes onto a protected area
Note: Government’s actions are valid unless it is the defendant who has the reasonable expectation of privacy
16
Q
Search: Home, Private Room, Office
A
- Home and curtilige, motel rooms, and business premises are protected and therefore have a reasonable expectation of privacy
- Use of drug-sniffing dog is a search if physically intrudes onto constitutionally protected property
17
Q
Search: Luggage
A
There is a reasonable expectation of privacy for invasive searches but not for canine sniffs
18
Q
Search: Open Areas/Public Streets
A
Outside curtilage (area of land immediately surrounding house), there is no reasonable expectation of privacy
19
Q
Search: Open Field Doctrine
A
- Fourth Amendment is limited to “persons, houses, papers and effects”; does not extend to open fields.
- Whether a location is an open field does not turn on whether owner of field has taken measures to keep it private, but on whether such expectations of privacy are objectively reasonable.
- For activities conducted outdoors, a person generally has no reasonable expectation of privacy.
20
Q
Search: Garbage Cans and Abandoned Property
A
No reasonable expectation of privacy
21
Q
Search: Cars
A
- Reasonable expectation of privacy, albeit limited, in your car
- Odor from Car: No reasonable expectation of privacy
- Rental car: Fact that a person in lawful possession of a rental car is not listed on rental agreement does not defeat his reasonable expectation of privacy
22
Q
Search: Use of Technological Devices
A
The following may constitute searches:
* Attaching a tracking device to a person without consent;
* Collecting cell-site location information from a wireless carrier to track a person
* Physically intruding on a suspect’s property to install a technological device
* Use of sense-enhancing devices not used by general public
23
Q
Search: Search Warrant
A
To be valid, a search warrant must:
(1) Be issued by a neutral magistrate;
(2) Upon a finding of probable cause; and
(3) Describe with particularity the the places to be searched and the items to be seized (requires reasonable belief that contraband will be found)
* Can also refer to contraband as “other fruits, instrumentalities, or evidence of crime at this time unknown” and still be valid
24
Q
Search: Warrant for Wiretap
A
Must have probable cause and a warrant, which must:
* Specifically identify whose conversations are to be intercepted, and
* Include an end date for the warrant
Note: Wiretap can be authorized for a limited period of time and police will be required to reveal intercepted conversation to court.
25
Search: Invalid Search Warrant
If a warrant is invalid, the items seized pursuant to the warrant will be excluded from the prosecution's case-in-chief
26
Warrant vs. Subpoena
* Warrant must be based on probable cause
* Subpoena can be based on mere reasonable suspicion
27
Exceptions to Search Warrant Requirement
There are seven major exceptions (**ESCAPES**):
* Exigent circumstances
* Search incident to arrest
* Consent
* Automobiles
* Plain view
* Evidence obtained from administrative searches
* Stop and Frisk
28
Search Incidental to Lawful Arrest: Individual
* If arrest is lawful, may search person being arrested and immediate surrounding area (i.e., **wingspan**) for **weapons or evidence**
* Does not include cell phone or laptop but includes pockets/containers/purse/luggage
29
Search Incident to Lawful Arrest: Home
Officers may conduct a quick and limited visual inspection of immediately adjacent places (a "**protective sweep**") for **people** that may be hiding
30
Search Incident to Lawful Arrest: Vehicle
Officers may search passenger compartment if:
* Arrestee is within reaching distance of passenger compartment (threat of weapons/evidence) during search, or
* Reasonable that **evidence of offense** might be in vehicle
31
Search Warrant Exception: Exigent Circumstances
* Police may conduct a search without a search warrant if they have **probable cause** and, under the **totality of the circumstances**, exigent circumstances exist (e.g., hot pursuit or immediate danger)
* Police may not create the exigency
32
Exigent Circumstances: Hot Pursuit of Felon
Police in pursuit of a suspect can seize “mere” evidence (not fruits/instrumentalities of crime) from a private building if they have PC to believe the suspect committed a felony
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Exigent Circumstances: Emergency
Police officer must have objectively reasonable belief that delay in getting warrant would result in immediate danger of evidence destruction, police/public safety or fleeing felon
34
Terry Stop and Frisk: Passenger Compartment
Police can conduct search of places where a **weapon** could be hidden if police have **reasonable belief** suspect is dangerous and may get immediate control of weapons
35
Search Warrant Exception: Consent
* Search **cannot exceed scope** of consent
* Must be **voluntary** (no threats, compulsion, or false assertion of lawful authority)
* **Third Party**: Can consent to own property search, but D’s property only if agency relationship to D or D assumes risk of search when giving right to 3P to consent to search
36
Search Warrant Exception: Automobiles
* Can search any part of car if **probable cause** that it contains **contraband/evidence of crime**
* Does not permit warrantless entry of home or curtilage in order to search a vehicle therein
**Note**: Automobile stop constitutes seizure not only of automobile's driver but also of current passengers. However, if passenger exited the car before crime was committed and stop was made.
37
Search Warrant Exception: Plain View
* **Public View**: No reasonable expectation of privacy
* **Private view**: If police are legally present, and incriminating nature of item immediately aparent, officer can sieze the item, even if not in warrant
38
Search Warrant Exception: Evidence Obtained from Administrative Searches
Two kinds of administrative searches:
* Administrative warrants (e.g., fire or health inspections of a building)
* Warrantless administrative searches: Used to ensure compliance with various administrative regulations (e.g., airplane boarding areas)
39
Search Warrant Exception: Terry Stop and Frisk
* Officer without probable cause may pat down person's outer clothing if officer has **reasonable suspicion** that suspect was/is involved in criminal activity and that the frisk is necessary for safety (i.e., weapons)
* **Plain Feel**: If officer conducting valid frisk feels object whose identity is immediately known (i.e., PC of contraband) it can be seized
40
Exclusionary Rule
* **Rule**: Evidence obtained in violation of the Fourth, Fifth, or Sixth Amendments is inadmissible at the criminal trial of the person whose rights were violated.
* **Does not apply to**: grand jury proceedings, when evidence is used as impeachment evidence against the D, civil proceedings, etc.
* **Standing**: Violation must have been of D's rights
41
Exclusionary Rule: Standard of Review
* **Standard of Review**: Factual findings are reviewed for clear error; findings of law are reviewed de novo
* **Harmless Error**: Court can refuse to order new trial if error harmless beyond a reasonable doubt
42
Exclusionary Rule: Fruit of the Poisonous Tree
Exclusionary rule applies not only to evidence initially seized as a result of government illegality but also to secondary derivative evidence resulting from primary taint
43
Exclusionary Rule: Exceptions
* Inevitable discovery
* Independent source
* Attenuation
* Good faith
* Isolated police negligence
* Knock and announce
* In court identification
44
Exclusionary Rule Exception: Inevitable Discovery
If the evidence would have been discovered anyway through lawful means in the same condition, it will be admissible
45
Exclusionary Rule Exception: Independent Source
Evidence discovered on the basis of an **independent source unrelated to tainted evidence** will be admissible
46
Exclusionary Rule Exception: Attenuation
Passage of time or intervening events may remove the taint of the unconstitutional conduct, rendering the evidence admissible
47
Exclusionary Rule Exception: Good Faith
Applies to police relying in objective good faith on either:
* (i) **facially valid warrant** later found invalid, or
* (ii) **existing law** later held unconstitutional
Does not apply if:
* (i) no reasonable officer would rely on affidavit underlying warrant,
* (ii) warrant defective on its face,
* (iii) warrant obtained by fraud,
* (iv) magistrate wholly abandons judicial role, or
* (v) warrant improperly executed
48
Exclusionary Rule Exception: Isolated Police Negligence
* Isolated negligence by law enforcement does not necessarily trigger exclusionary rule
* To trigger exclusionary rule, police conduct must be **sufficiently deliberate** so that exclusion could meaningfully **deter**
49
Exclusionary Rule Exception: Knock and Announce Rule
* Police must generally announce purpose when executing a warrant, unless state allows exception for exigent circumstances
* Violation **does not** trigger exclusionary rule
50
Exclusionary Rule Exception: In-court ID
* A witness may make an in-court identification despite the existence of prior illegality
* Information stems from witness and not just illegal gathering of evidence
51
Fifth Amendment: General Rule
**Rule**: No person shall be compelled in criminal case to testify against himself
* Applies to states through Fourteenth Amendment
* **Exception**: When corporation is target of investigation, custodian of corporate records cannot refuse to produce subpoenaed documnets by citing privilege, even if documents would incriminate custodian
**Testimonial evidence**: Fifth Amendment only applies to testimonial evidence, i.e., testimony that would be a link in the chain leading to prosecution or conviction.
* Does not apply to physical evidence (blood, urine, breathalyzer, etc.) or past statements
52
Fifth Amendment: Applicability in Proceedings
Applies to civil/criminal, formal/informal proceedings if answers provide **reasonable possibility of incriminating D** in future criminal proceeding
53
Fifth Amendment: Waiving Privilege
* D waives by taking stand and answering P’s questions;
* Witness waives it by disclosing self-incriminating information in response to a specific question
54
Fifth Amendment: Transactional vs. Use Immunity
P may compel incriminating testimony if it grants immunity:
* **Transactional**: Blanket immunity that fully protects witness from future prosecution for crimes related to testimony
* **Use and derivative-use**: Only precludes use of witness's own testimony
**BUT**, testimony given under a grant of immunity is **coerced** and therefore **involuntary**. Any criminal-trial use of such testimony outside context of perjury prosecution (e.g., for impeachment) is a denial of due process.
55
Fifth Amendment: Miranda Warnings
* Any statement obtained as the result of custodial interrogation may not be used against D at a subsequent trial unless police provided procedural safeguards effective to secure privilege against self-incrimination.
* Once a custodial interrogation begins, anything D says is inadmissible until D is informed of their Miranda rights and D waives those rights.
* Cannot use post-arrest silence by D who has received Minranda warnings as either impeachment/substantive evidence because this violates due process, even if D never expressly invokes right to remain silent
56
Custodial Interrogation
**Custody**: A person is in custody when he is not free to leave or is otherwise deprived of his freedom in any significant way.
* Analyze under **totality of circumstances**
* Arrest: Custody
* Prison: Not automatically custody
**Interrogation**: An interrogation refers not only to questioning, but also to any words or actions that the police know or should know are likely to elicit an incriminating response.
* Does not include voluntary statements
57
Fifth Amendment: Miranda Rights
Before conducting custodial interrogations, police must inform suspect:
* Right to remain silent;
* Any statement you make may be used against you in court;
* Right to consult an attorney and to have attorney present during questioning; and
* Right to have an attorney appointed if you cannot afford one
58
Miranda Warnings: Content/Timing Compliance
* Warning must be given before interrogation begins (or again if stopped for long time)
* Interrogators must ask whether D understands the rights
* **No magic words**: As long as substantance of Miranda warnings are "reasonably conveyed," it will be sufficient
59
Miranda Rights: Waiver
Suspect may waive right, but burden is on government to prove by a preponderance of evidence that waiver was made **knowingly and voluntarily**
60
Miranda Warnings: Invoking Right to Counsel
* Suspect must make a **specific, unambiguous statement** asserting his desire to have counsel present. Once invoked, all interrogation must stop until counsel is present
* **Exception**: Suspect voluntarily initiates communication with police (including spontaneous statements) or **14-day or more break** in custody and fresh Miranda warnings given
Note: Police do not have to tell a suspect that their lawyer is trying to reach them.
61
Miranda Warnings: Right to Silence
* Suspect must make a **specific, unambiguous** statement asserting his desire to remain silent. Once invoked, interrogator must scrupulously honor right.
* **If suspect indicates desire to speak**: Subsequent interrogation lawful if suspect not coerced and fresh Miranda warnings given
* **Exception**: Can resume interrogation after **substantial period** of time and fresh Miranda warnings
62
Miranda Rights: Voluntary vs. Involuntary Statements
Voluntary confessions are not protected by Miranda. A confession is involuntary only if the police **coerced** the defendant into making the confession.
* Note: A voluntary statement in violation of Miranda is excluded as substantive evidence but admissible as impeachment evidence.
Whether a statement is voluntary or coerced is determined based on the **totality of the circumstances**, including:
* Police conduct,
* Defendant's characterics (age, education, experience), and
* Timing of statement
63
Miranda Warnings: Exceptions
* Public safety
* Routine booking questions
* Undercover police
64
Miranda Rights: Fruits of Tainted Confession
* **Second Confession**: Miranda violation doesn’t automatically result in suppression of incriminating statements made after second warnings given. May be admissible if initial confession was result of a **good faith mistake** by police.
* **Physical Evidence**: Any physical fruits of a voluntary confession can be admissible evidence.
65
Fifth Amendment: Double Jeopardy Clause
Provides protection against:
* (i) Second prosecution for same offense after acquittal;
* (ii) Second prosecution for same offense after conviction;
* (iii) Multiple punishments for same offense; and
* (iv) Re-trail for greater offense when convicted of only a lesser offense because conviction acts as implied acquittal of greater offense
**Exception**: When jeopardy has attached w/r/t a lesser included offense prior to the occurrence of an event necessary to establish the greater offense, D may be subsequently tried for the greater offense.
**Note**: Double jeopardy does not prevent imposition of a harsher sentence upon retrial of D after a successful appeal of a conviction; it also doesn't apply when there is a hung jury in the first trial.
**Note**: Grant of demurrer or MTD in favor of accused for prosecution's failure to prove elements of crime is equivalent to acquittal.
66
Sixth Amendment: General Rule
Provides for the following:
* Right to jury
* Public trial
* Confront witnesses against him
* Cross-examine witnesses
* Be present at his own trial, and
* Assistance of counsel for his own defense
67
Sixth Amendment: Right to Counsel
**General Rule**: Provides a criminal D with the right to counsel in any case in which incarceration is imposed (felony or misdemeanor)
* Applies even if sentence is suspended
* Doesn't apply if no incarceration, regardless of maximum length of sentence that may be imposed for crime
**Offense Specific**: D has a Sixth Amendment right to counsel only for offenses which he has actually been charged (or any lesser-included offenses)
68
Sixth Amendment: Blockburger Test
Two different crimes in one criminal transaction are deemed to be the same offense unless each offense requires proof of an element that the other does not
69
Sixth Amendment Right to Counsel: Attachment
* Right automatically attaches when **formal judicial proceedings** have begun (e.g., indictment, information, other formal charges)
* **Automatically** applies at all **critical stages** of prosecution after **formal proceedings** begin
* Once Sixth Amendment has attached, police have obligation to tell D that counsel is trying to reach him
Note: No right to counsel at post-conviction proceedings (e.g., parole, probation)
70
Sixth Amendment Right to Counsel: Waiver
* Waiver must be **voluntary, knowing, and intelligent**;
* Receiving Miranda warning sufficiently apprises a person of his Sixth Amendment rights and consequences of waiving those rights
**Note**: D can only waive 6A right to counsel and egage in self-representation if D (1) knows the nature of charges, range of punishments, and disadvantages of self-representation, and (2) is not being forced to choose between incompetent counsel and self-representaiton
71
Sixth Amendment Right to Counsel: Subsequent Waivers
* **If court automatically appoints counsel**: No presumption that any subsequent waiver of right to counsel is involuntary
* **If accused actually asserts right to counsel**: Subsequent waivers are presumed involuntary if in a custodial setting
Note: Police may still initiate non-custodial interactions with accused outside presence of lawyer and no presumption of involuntariness for any knowing waiver of right to counsel
72
Sixth Amendment Right to Counsel: Remedies for Denial of Counsel
* **Effect on Conviction**: Automatically reversed
* **Effect on guilty plea**: D has right to withdraw it; cannot be used as an admission
* **Nontrial proceeding**: Harmless-error analysis
73
Sixth Amendment Right to Counsel: D's Statements to Informants
* Post-indictment statement to informant where situation is likely to induce D to incriminate himself without counsel is inadmissible
* Police are allowed to place an informant in D's cell to listen without questioning D
74
Sixth Amendment Right to Counsel: Exclusionary Rule
* **Exclusionary rule**: Applies to statements made in violation of right to counsel
* **Fruit of the poisoness tree**: Applies to statements and physical evidence obtained as a result of a violation
Note: Incriminating evidence obtained in violation of 6A **may be used for impeachment**
75
Sixth Amendment: Ineffective Assistance of Counsel
To prove ineffective, claimant must show:
* (1) Counsel's representation fell below **objective standard of reasonableness**;
* (2) Counsel's deficient performance **prejudiced D**, resulting in **reasonable probability outcome would have been different**
Note: Prejudice is presumed if it cost D an appeal; or if, but for deficient performance, D would have gone to trial instead of accepting guilty plea.
76
Sixth Amendment: Right to Represent Yourself
D has right to engage in self-representation even if he/she cannot do so effectively
77
Sixth Amendment: Conflict of Interests
Representation of Ds with conflicting interests is grounds for ineffective assistance of counsel if D shows:
(i) **actual conflict**, and
* D's counsel is subject to interest that, if followed, would lead her to adopt strategy other than that most favorable to D
(ii) an **adverse effect** on counsel's performance.
* Plausible alternative strategy might have been pursued but was in conflict with/not taken because of attorney's other interests
78
Sixth Amendment Right to Counsel: Eyewitness ID Procedures
**Non-corporeal** (not in person, e.g., photo arrays): Neither D nor lawyer have right to be present, but police must turn over array to D
**Corporeal** (in person, e.g., lineups): D has a right to have counsel present at post-indictment lineups, but not pre-indictment lineups
* **Violation**: Inadmissible if violated but witness can ID the D at trial if ID has independent reliability
79
Due Process: Eyewitness ID Procedures
Court will suppress evidence witness picked D from a lineup if D proves:
* (i) ID was **impermissibly suggestive**, and
* (ii) there was a **substantial likelihood of misidentification**
Note: P can prove it was nonetheless reliable under the totality of the circumstances.
80
Fourth Amendment: Probable Cause to Detain
* Must be held within 48 hours of arrest to determine PC and released if no PC
* No remedy if detention is unlawful, other than exclusion of evidence
81
Competency to Stand Trial
D must **comprehend nature of proceedings** against him and have ability to consult with lawyer with **reasonable degree of rational understanding** to be competent to stand trial
82
Grand Juries: D's Rights
* D has no right to present/confront witnesses or introduce evidence,
* Grand juries can consider evidence that has been obtained illegally or is hearsay
* Grand jury need not be unanimous
* No dismissal due to procedural defect unless **substantial impact** on decision to indict
* Intentional **racial discrimination** in selection of grand jurors results in overturn of conviction
83
Preliminary Hearing
* Determines whether probable cause exists to hold D
* Generally must be held within 48 hours of D's arrest
* No need to hold preliminary hearing if probable cause has already been determined through grand jury indictment or arrest warrant
84
Brady Disclosure
* Prosecution has affirmative duty to disclose to D any **material evidence favorable to D** and relevant to P's case-in-chief that would negate guilt or diminish culpability/punishment
* Failure is grounds for reversal if D shows **evidence was favorable** to D and failure to disclose caused D **prejudice**.
**Note**: This extends to evidence of which a police or state actor is aware, even if prosecution is unaware of the evidence themselves.
85
Sixth Amendment: Right to Jury Trial
D has right under Sixth Amendment (federal)/Fourteenth Amendment (state) to a jury trial for all **non-petty serious offenses** for which the authorized **punishment is more than six months**, regardless of actual penalty imposed.
**Note:** D also has a right to be present at the different stages of the trial and sentencing.
**Note**: Can be charged with multiple offenses with punishment less than six months at once without triggering right to jury trial
86
Right to Jury Trial: Jury Size
* **Federal**: 12 members unless waived in writing and approved by court; verdict by 11 is permitted if 12th juror is excused for good cause after deliberations begin
* **State**: Can use juries of six or more in criminal cases
87
Right to Jury Trial: Jury Selection
**Cross-section**: Jury pool must be a **representative** cross section of the community, but actual jury selected need not be
**Prima Facie Case**: D can make a prima facie case for absence of representative cross section if:
* Distinctive group excluded,
* Group not fairly represented in jury pool, and
* Underrepresentation resulted from systematic exclusion of group
**Neutral Principles**: State must respond by proving absence of discriminatory intent and use of neutral/nonracial principles
88
Right to Jury Trial: Discriminatory Peremptory Challenges
* Moving party must establish **prima facie** case of discrimination
* Party who exercised peremptory challenge must provide **race-neutral** explanation
* Moving party carries burden of proving other party's reason was **pre-textual**
89
Right to Jury Trial: Impartiality
* Claims of juror bias/misconduct are **subject to harmless-error rule**
* Can remove potential jurors for **racial prejudice** or opposition to **death penalty** in cases when it could be sentenced
90
Right to Jury Trial: Sentencing Enhancements
Any fact, other than a prior conviction, that is used to increase the sentence beyond the statutory maximum, must be charged and proved beyond a reasonable doubt by a jury, not the judge.
91
Right to Trial by Jury: Guilty Pleas
For a guilty plea to be valid, D must **intelligently** and **voluntarily** waive these rights to a trial in a plea allocution where the judge:
* Advises D,
* Determines that plea not due to force or promises other than in plea agreement, and
* Determines there is some **factual basis** for plea
Note: Plea made in response to P's threat to bring more serious charges does not violate due process.
92
Sixth Amendment: Right to Speedy Trial
Protects defendant from intentional and prejudicial pre-accusation delay as well as post-accusation delay. Remedy of violation is dismissal of charges with prejudice. **Balancing test** for violation includes:
* (i) Length and reason for delay,
* (ii) D's assertion of right, and
* (iii) Prejudice to D
**Note**: Court will not consider the seriousness of the crime
93
Sixth Amendment Right to Confrontation: Admission of Co-D Confessions
* **Bruton Rule**: If there are co-defendants, a non-testifying co-defendant’s statements are not admissible against the other D unless neutral references are used along with a limiting instruction
94
Due Process: Permissive vs. Mandatory Presumptions
* **Permissive Presumption**: Permissive presumption regarding element of an offense is not a due-process violation unless it is irrational
* **Mandatory Presumption**: Per se violation
95
Eighth Amendment Cruel and Unusual Punishment: Non-Death Penalty
Punishment can violate Eighth Amendment if:
* (i) Prisoner shows prison officials had actual knowledge of **substantial risk** to prisoners or serious injury, or
* (ii) Sentence **grossly disproportionate** to crime
96
Eighth Amendment: Death Penalty
* Death penalty can be imposed only when victim dies
* Must prove at least one aggravating circumstance that sets murder apart from other murders
* In order to impose death penalty, aggravating circumstance cannot be **unconstitutionally vague** (e.g., "especially heinous or brutal" and state statute must have opportunity for rational review of process
97
Eighth Amendment: Execution of Individual with Intellectual Disabilities
* Eighth Amendment prohibits execution of an individual with intellectual disabilities
* In determining whether an individual has intellectual disabilities, state cannot impose strict cuttof that precludes a finding of intellectual disability if the rule creates an **unacceptable risk** that a person with an intellectual disability will be executed
98
Fifth Amendment: Double Jeopardy
Double Jeopardy Clause protects against:
* (i) Prosecution for same offense after acquittal;
* (ii) Prosecution for same offense after conviction; and
* (iii) Multiple punishments for same offense
Note: Jeopardy **attaches** when jury is impaneled/sworn in or when first witness is sworn in for bench trial
99
Double Jeopardy: "Same Offense"
* **Blockburger test** applies if D’s conduct can be prosecuted as two or more crimes so it generally bars successive prosecutions for greater/lesser included offenses
* **Exception**: No double jeopardy if jeopardy attaches to lesser-included offense before event necessary for greater offense
100
Double Jeopardy: Inapplicability
* **Different Jurisdictions**: D can be charged/convicted in federal and state court
* **Civil Actions**: Not precluded by criminal punishment for same conduct
* **Guilty Plea**: Not automatically waived
101
Right to Appeal
* Not guaranteed by Constitution
* **First appeal as of right**: D is guaranteed equal protection and right to counsel
* **Discretionary appeal**: Indigent D does not have right to counsel unless conviction based on a plea
102
Appeal: Harmless Error vs. Plain Error
**Harmless Error**: An error that does not affect substantial rights
* Will not serve as grounds for reversal
**Plain Error**: D who failed to preserve error is entitled to relief when:
* (i) district court committed **error under law in effect** at time appeal is heard;
* (ii) **error is obvious** under that law; and
* (iii) error affected D's **substantial rights**
103
Writ of Habeas Corpus
**Civil Action**: Standard is preponderance of the evidence, not beyond a reasonable doubt
Court will test whether:
(i) the unlawful detention had a "**substantial and injurious**" effect/influence on the verdict, and
(ii) court's decision was **contrary to law** or based on an **unreasonable determination of facts**
104
Jury Instructions: Lesser Included Offenses
A court should instruct the jury on a lesser included offense if, based on the evidence presented at trial, a rational jury **could acquit** the defendant of the **charged offense** **but convict** the defendant of the **lesser offense**
