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Criminal Procedure > Identifications through Trial > Flashcards

Identifications through Trial Flashcards

1
Q

3 types of pre-trial IDs?

A
  1. line-ups
  2. show-ups: one-on-one confrontation with W and suspect
  3. photo arrays
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2
Q

2 substantive challenges to pre-trial ID

A
  1. denial of right to counsel under 6th Am = right to counsel at line-ups and show-ups AFTER formal charging, also IN NEW YORK before formal charges filed if you request it
  2. due process violated when ID process is so UNNECESSARILY SUGGESTIVE to create irreparable likelihood of mis-ID
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3
Q

remedy for successful substantive pre-trial ID challenge? when remedy overruled?

A

remedy = exclusion of W’s in-court ID. Overruled and allowed anyway if P can show it’s based on W’s observation of D besides unconstitutional lineup, showup, or photo array –> P shows 1. W’s opportunity to show D at crime scene;

  1. W’s certainty
  2. W’s specificity of description
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4
Q

What do grand juries do?

A

issue indictments

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5
Q

Are grand jury proceedings public?

A

No

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6
Q

Do states have to use them as part of the charnging process? Does NY?

A

Not mandatory, and most states skip it. NY uses grand juries.

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7
Q

Before the grand jury in NY, indictments must establish _______ and provide reasonable cause to believe the accused ________ the offense

A

all elements; committed

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8
Q

justify pre-trial detention if you’ve got probable cause, which can be determined in 1 of 2 ways

A
  1. grand jury issues indictment

2. magistrate issues arrest warrant

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9
Q

first appearance: what happens?

A

magistrate advises him of rights, set bail, appoint counsel (if nec).

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10
Q

Brady rule def

A

P must disclose to criminal D ALL MATERIAL, EXCULPATORY evidence - i.e., prejudice would result w/o disclosure

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11
Q

Ds are entitled to unbiased judge, which reqs 2 things:

A
  1. no $ stake in outcome

2. no actual malice toward D

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12
Q

all criminal Ds get ___ and ___ juries

A

fair and impartial

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13
Q

right to jury trial kicks in when max. sentence exceeds ___?

A

6 months

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14
Q

min number of jurors for crim trial by const? what about in NY?

A

6 by fed const. 12 reqd in NY (though D can waive and go down to 11).

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15
Q

crim jury verdicts require what % agreement?

A

unanimity

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16
Q

pool of jury draw = _____-sectional

A

cross-sectional ==> representative pool

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17
Q

peremptory challenges can exclude for any reasons except?

A

race and gender

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18
Q

face-to-face confrontation with W guaranteed under 6th Am, except?

A

public policy -> child abuse victims

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19
Q

right to effective assistance of counsel - 2 prong test (must have both for D to win appeal)

A
  1. deficiency req: lawyer made errors so serious as to not function as counsel; AND
  2. prejudice req: but for attorney’s deficiency, outcome of trial would’ve been different
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20
Q

valid guilty plea: 2 reqs

A

voluntary, and

intelligent

21
Q

4 times D can withdraw guilty plea

A
  1. involuntary plea
  2. jurisdictional defect (in wrong court)
  3. ineffective assistance of cousel
  4. BEST BET P fails to fulfill P’s side of bargain
22
Q

Punishment: 8th amendment standard for cruel and unusual def:

A

No punishments that are GROSSLY DISPROPORTIONATE to seriousness of offense

23
Q

death penalty would statute would violate 8th Am if?

A

if there’s an automatic category of crime that gets death penalty

24
Q

in deciding whether to impose death penalty, jury gets to consider _____

A

all potential mitigating evidence

25
Q

who can’t get death penalty? 3 categories

A
  1. mental retardation Ds
  2. Ds presently insane (until they regain sanity)
  3. D under 18 at time of offense
26
Q

when does jeopardy attach to crim proceeding? 1. for jury trial; 2. bench trial; 3. for guilty plea

A
  1. when jury is sworn
  2. when first W sworn
  3. when ct accepts plea unconditionally
27
Q

does double jeopardy apply to civil suits?

A

NO!

28
Q

FED LAW: no double jeopardy for “same offense”. 2 crimes are not the same offense if?

A

FED LAW: NOT the same offense if EACH CONTAINS AN ELEMENT THE OTHER DOES NOT, e.g., vehicular manslaughter (reqs death) and hit and run (reqs leaving scene).

29
Q

Under NY law, for double jeopardy, NY uses the “TRANSACTION TEST” which reqs?

A

D be charged with all offenses associated with a single transaction at the same damn time

30
Q

4 exceptions to NY’s transaction test, which reqs charging D with all offenses out of a single transaction at the same time? (any 1 out of 4 good enough to get out of transaction test)

A
  1. offenses have SUBSTANTIALLY DIFFERENT elements
  2. each has element the other does not AND PREVENTS DIFFERENT HARMS
  3. one offense is for criminal possession and the other is use
  4. the two offenses have different victims
31
Q

re double jeopardy: what about “lesser-included” offenses?

A

Prosecution for the greater offense precludes later prosecution for the lesser offense. And vis-versa. Works both ways.

32
Q

For double jeopardy clause, what’s the same sovereign rule?

A

Fed and state can get you separately; 2 states can get you separately; BUT CITY AND STATE CAN’T BOTH GET YOU.

33
Q

Exceptions to double jeopardy rule? (4 of them)

A
  1. hung jury
  2. mistrial or manifest necessity
  3. successful appeal (unless for insuff of evid)
  4. breach of plea agreement by D
34
Q

Who can take the 5th and when?

A

anyone in a proceeding where you testify under oath

IN NY, CAN’T TAKE 5TH IT IN GRAND JURY PROCEEDING

35
Q

If someone fails to take the 5th in proceeding today, can they take the 5th on same topic next week?

A

No. Once you don’t take the 5th, you’re screwed and can’t take it later.

36
Q

5th amendment protects against words, and not?

A

blood, and DUI tests, etc

37
Q

b/c taking the 5th is a testimonial privilege, it DISALLOWS negative prosecutorial comment on 2 things

A
  1. D’s decision not to testify at his trial; and
  2. D’s invocation of his right to silence or counsel.
    P can’t lobby jury on that.
38
Q

3 ways to get around 5th Am right?

A
  1. grant of immunity (for testimony and for derivative claims that would follow therefrom)
  2. D takes the stand, and they waive the 5th WRT anything properly within scope of cross-examination
  3. if S/L has run on the underlying crime
39
Q

NY approach to grant of immunity to overcome 5th Am?

A

TRANSACTIONAL IMMUNITY = D can’t be prosecuted for any TRANSACTION crime that you testify about in your immunized testimony –> broader immunity in NY

40
Q

are grand juries limited to constitutionally acquired evidence?

A

no. they can consider evidence that would be inadmissible at trial.

41
Q

6th Am right to speedy trial determined by ____ analysis

A

totality of circumstances

42
Q

when does right to speedy trial under 6th Am attach?

A

time of arrest or charge

43
Q

A defendant is incompetent to stand trial if? (2 things)

A
  1. He lacks an understanding of the charges and proceedings; or
  2. He lacks sufficient ability to assist his lawyer in preparing his defense
44
Q

There is a right to trial by jury for serious offenses – offenses serious if it may result in imprisonment more than ____

A

6 months

45
Q

When a defendant is charged with a misdemeanor, when does he have a right to counsel?

A

Only if prison time is ACTUALLY imposed

46
Q

Does the Fifth Amendment cover production of subpoenaed documents?

A

No, it’s not testimonial self-incrimination.

47
Q

Remember, the Fifth Amendment only applies to testimonial _____ evidence

A

compelled

48
Q

Under NY law, D must provide P with what notice of intent to plead insanity?

A

insanity: 30 days before raising insanity as defense

49
Q

under NY law, when may P ask D for any alibi defense?

A

within 20 days after arraignment, P may serve D with demand for alibi defense, and D replies w/in 8 days

Criminal Procedure (4 decks)

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