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Bar Exam: Outline > Criminal Procedure (MBE/MEE) > Flashcards

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
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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

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3
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
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4
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

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5
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
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6
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

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7
Q

Seizure: Scope of Arrest Warrant

A
  • Individual’s Home: Arrest warrant allows officers to enter an individual’s home to arrest that individua
  • 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.
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8
Q

Seizure: Deficient Arrest Warrant

A

Does not invalidate arrest as long as there was probable cause

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9
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
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10
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

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11
Q

Seizure: Illegal Arrest

A
  • Invalid arrest alone not a defense to crime charged
  • May result in exclusion of evidence discovered during arrest
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12
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

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13
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
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14
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

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15
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
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16
Q

Search: Luggge

A

There is a reasonable expectation of privacy for invasive searches but not for canine sniffs

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17
Q

Search: Open Areas/Public Streets

A

Outside curtilage (area of land immediately surrounding house), there is no reasonable expectation of privacy

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18
Q

Search: Garbage Cans and Abandoned Property

A

No reasonable expectation of privacy

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19
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
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20
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

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21
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

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22
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.

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23
Q

Search: Invalid Search Warrant

A

If a warrant is invalid, the items seized pursuant to the warrant will be excluded from the prosecution’s case-in-chief

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24
Q

Exceptions to Search Warrant Requirement

A

There are seven major exceptions (ESCAPES):
* Exigent circumstances
* Search incident to arrest
* Consent
* Automobiles
* Plain view
* Evidence obtained from administrative searches
* Stop and Frisk

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25
Q

Search Incidental to Lawful Arrest: Individual

A
  • 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
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26
Q

Search Incident to Lawful Arrest: Home

A

Officers may conduct a quick and limited visual inspection of immediately adjacent places (a “protective sweep”) for people that may be hiding

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27
Q

Search Incident to Lawful Arrest: Vehicle

A

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

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28
Q

Search Warrant Exception: Exigent Circumstances

A
  • 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
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29
Q

Exigent Circumstances: Hot Pursuit of Felon

A

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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30
Q

Exigent Circumstances: Emergency

A

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

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31
Q

Terry Stop and Frisk: Passenger Compartment

A

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

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32
Q

Search Warrant Exception: Consent

A
  • 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
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33
Q

Search Warrant Exception: Automobiles

A
  • 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
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34
Q

Search Warrant Exception: Plain View

A
  • 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
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35
Q

Search Warrant Exception: Evidence Obtained from Administrative Searches

A

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)

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36
Q

Search Warrant Exception: Terry Stop and Frisk

A
  • 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
  • Plain Feel: If officer conducting valid frisk feels object whose identity is immediately known (i.e., PC of contraband) it can be seized
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37
Q

Exclusionary Rule

A
  • 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
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38
Q

Exclusionary Rule: Standard of Review

A
  • 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
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39
Q

Exclusionary Rule: Fruit of the Poisonous Tree

A

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

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40
Q

Exclusionary Rule: Exceptions

A
  • Inevitable discovery
  • Independent source
  • Attenuation
  • Good faith
  • Isolated police negligence
  • Knock and announce
  • In court identification
41
Q

Exclusionary Rule Exception: Inevitable Discovery

A

If the evidence would have been discovered anyway through lawful means in the same condition, it will be admissible

42
Q

Exclusionary Rule Exception: Independent Source

A

Evidence discovered on the basis of an independent source unrelated to tainted evidence will be admissible

43
Q

Exclusionary Rule Exception: Attenuation

A

Passage of time or intervening events may remove the taint of the unconstitutional conduct, rendering the evidence admissible

44
Q

Exclusionary Rule Exception: Good Faith

A

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

45
Q

Exclusionary Rule Exception: Isolated Police Negligence

A
  • 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
46
Q

Exclusionary Rule Exception: Knock and Announce Rule

A
  • Police must generally announce purpose when executing a warrant, unless state allows exception for exigent circumstances
  • Violation does not trigger exclusionary rule
47
Q

Exclusionary Rule Exception: In-court ID

A
  • 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
48
Q

Fifth Amendment: General Rule

A

Rule: No person shall be compelled in criminal case to testify against himself
* Applies to states through Fourteenth Amendment

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

49
Q

Fifth Amendment: Applicability in Proceedings

A

Applies to civil/criminal, formal/informal proceedings if answers provide reasonable possibility of incriminating D in future criminal proceeding

50
Q

Fifth Amendment: Waiving Privilege

A
  • D waives by taking stand and answering P’s questions;
  • Witness waives it by disclosing self-incriminating information in response to a specific question
51
Q

Fifth Amendment: Transactional vs. Use Immunity

A

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

52
Q

Fifth Amendment: Miranda Warnings

A
  • 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.
53
Q

Custodial Interrogation

A

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

54
Q

Fifth Amendment: Miranda Rights

A

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

55
Q

Miranda Warnings: Content/Timing Compliance

A
  • 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
56
Q

Miranda Rights: Waiver

A

Suspect may waive right, but burden is on government to prove by a preponderance of evidence that waiver was made knowingly and voluntarily

57
Q

Miranda Warnings: Invoking Right to Counsel

A
  • 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.

58
Q

Miranda Warnings: Right to Silence

A
  • 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
59
Q

Miranda Rights: Voluntary vs. Involuntary Statements

A

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

60
Q

Miranda Warnings: Exceptions

A
  • Public safety
  • Routine booking questions
  • Undercover police
61
Q

Miranda Rights: Fruits of Tainted Confession

A
  • 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.
62
Q

Fifth Amendment: Double Jeopardy Clause

A

Provides protection against:
* (i) Second prosecution for same offense after acquittal;
* (ii) Second prosecution for same offense after conviction; and
* (iii) Multiple punishments for same 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.

63
Q

Sixth Amendment: General Rule

A

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

64
Q

Sixth Amendment: Right to Counsel

A

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)

65
Q

Sixth Amendment: Blockburger Test

A

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

66
Q

Sixth Amendment Right to Counsel: Attachment

A
  • 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)

67
Q

Sixth Amendment Right to Counsel: Waiver

A
  • 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
68
Q

Sixth Amendment Right to Counsel: Subsequent Waivers

A
  • 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

69
Q

Sixth Amendment Right to Counsel: Remedies for Denial of Counsel

A
  • 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
70
Q

Sixth Amendment Right to Counsel: D’s Statements to Informants

A
  • 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
71
Q

Sixth Amendment Right to Counsel: Exclusionary Rule

A
  • 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

72
Q

Sixth Amendment: Ineffective Assistance of Counsel

A

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.

73
Q

Sixth Amendment: Conflict of Interests

A

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

74
Q

Sixth Amendment Right to Counsel: Eyewitness ID Procedures

A

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

75
Q

Due Process: Eyewitness ID Procedures

A

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.

76
Q

Fourth Amendment: Probable Cause to Detain

A
  • 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
77
Q
A
78
Q

Competency to Stand Trial

A

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

79
Q

Grand Juries: D’s Rights

A
  • 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
80
Q

Brady Disclosure

A
  • 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.
81
Q

Sixth Amendment: Right to Jury Trial

A

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.

82
Q

Right to Jury Trial: Jury Size

A
  • 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
83
Q

Right to Jury Trial: Jury Selection

A

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

84
Q

Right to Jury Trial: Discriminatory Peremptory Challenges

A
  • 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
85
Q

Right to Jury Trial: Impartiality

A
  • 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
86
Q

Right to Jury Trial: Sentencing Enhancements

A

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.

87
Q

Right to Trial by Jury: Guilty Pleas

A

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.

88
Q

Sixth Amendment: Right to Speedy Trial

A

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

89
Q

Sixth Amendment Right to Confrontation: Admission of Co-D Confessions

A
  • 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
90
Q

Due Process: Permissive vs. Mandatory Presumptions

A
  • Permissive Presumption: Permissive presumption regarding element of an offense is not a due-process violation unless it is irrational
  • Mandatory Presumption: Per se violation
91
Q

Eighth Amendment Cruel and Unusual Punishment: Non-Death Penalty

A

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

92
Q

Eighth Amendment: Death Penalty

A
  • 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
93
Q

Eighth Amendment: Execution of Individual with Intellectual Disabilities

A
  • 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
94
Q

Fifth Amendment: Double Jeopardy

A

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

95
Q

Double Jeopardy: “Same Offense”

A
  • 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
96
Q

Double Jeopardy: Inapplicability

A
  • 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
97
Q

Right to Appeal

A
  • 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
98
Q

Appeal: Harmless Error vs. Plain Error

A

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

99
Q

Writ of Habeas Corpus

A

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

Bar Exam: Outline (15 decks)

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