Kaplan Pgs 428-437 Post Trial

Question 1

When is a defendant’s case ready for sentencing?

Answer 1

What a verdict or guilty plea is entered

Question 2

How do you determine a sentence?

Answer 2

Under the applicable sentencing statutes that have to comply with the 8th and 14th amendments

Question 3

Does a defendant have a right to counsel during a sentencing hearing?

Answer 3

Yes

Question 4

When can sentencing happen by videoteleconferencing or in the defendant’s absence?

Answer 4

If it involves a misdemeanour or an offence that is punishable by a fine or imprisonment for not more than one year, as long as the defendant gives written consent

Question 5

What are things that are admissible in a sentencing hearing that wouldn’t be admissible elsewhere?

Answer 5

– hearsay evidence
– testimony not subject to cross-examination
– evidence gotten in violation of the fourth

Question 6

If a sentence falls outside of the federal sentencing guidelines, is it necessary that there be extraordinary circumstances?

Answer 6

No, it is just reviewed under an “abuse of discretion“ standard

Question 7

If a defendant wins an appeal and is then reconvicted, can a more severe penalty be imposed on re-trial?

Answer 7

No. A harsher sentence can only be imposed when it’s based on new objective information after the first sentence was decreed

Question 8

If a defendant wins an appeal and then gets reconvicted, but the trail was de novo, is it possible for the new punishment to be an increase over the first?

Answer 8

Yes because a different court is rendering the sentence

Question 9

What does the eighth amendment say about punishments?

Answer 9

There cannot be cruel and unusual. The sentence must be proportional to the crime committed and to the sentences of other similarly situated criminals that have committed similar crimes

Question 10

Is it constitutional to have harsher sentences for repeat offenders?

Answer 10

Yes

Question 11

Can you give someone the death penalty for committing a rape?

Answer 11

No

Question 12

Is it possible to put a defendant in prison because he cannot pay a fine?

Answer 12

No

Question 13

Is it considered to be cruel and unusual punishment to put two inmates into one jail cell?

Answer 13

No

Question 14

Can a person be punished for being an addict or an alcoholic?

Answer 14

No

Question 15

Is it constitutional to have mandatory capital punishment for certain crimes, like shooting a police officer?

Answer 15

No, because that precludes consideration of mitigating factors

Question 16

Is it possible to execute an individual that was under 18 at the time he committed a capital crime?

Answer 16

No

Question 17

Is it possible to execute mentally retarded defendants?

Answer 17

No, that is considered to be cruel and unusual punishment under the eighth amendment

Question 18

Is it possible to have a state statute that excludes all potential jurors who would indicate some opposition to the death penalty?

Answer 18

No, but you can have one that excludes all potential jurors that say they would never under any circumstances impose the death penalty

Question 19

What is the standard for proving habeas corpus?

Answer 19

Defendant must prove an unlawful detention by a preponderance of the evidence

Question 20

Do indigents have a right to have appointed counsel for a habeas corpus petition?

Answer 20

No, because this is a civil suit

Question 21

In order to bring a timely writ of habeas corpus, what must the prisoner be?

Answer 21

In custody. This includes those that are out on bail, probation, or parole

Question 22

Because prisoner’s constitutional rights are more limited in scope than those held by individuals in society at large, what is the test for prisoner rights?

Answer 22

The restrictions must be reasonably related to legitimate penological interests

Question 23

Is there a federal constitutional right to parole or probation?

Answer 23

No

Question 24

If a state provides for the right to parole, but a prisoner is denied parole, he must be granted what?

Answer 24

Notice of the reasons for denial and an opportunity to be heard

Question 25

What are things that prisoners must have reasonable access to?

Answer 25

• the courts
• legal counsel
• communication with the press
• medical care
• notice of the forfeiture of property

Question 26

What are the rules regarding censorship of mail for inmates?

Answer 26

Mail can be censored under strict guidelines, and letters to inmates from their attorneys can be opened but not read by prison authorities

Question 27

What are the rules for detaining aliens?

Answer 27

Detention must be limited to the time reasonably necessary to have the alien removed from the United States. Indefinite detention is not allowed

Question 28

If a supreme court case creates a new constitutional right, is that fully retroactive to all defendants regardless of the stage of their trial?

Answer 28

Yes

Question 29

What is the difference between use immunity and transactional immunity?

Answer 29

• use immunity: ensures the testimony of the witness will not be used against that witness at trial
  – transactional immunity: ensures that the witness will not be prosecuted for any crimes related to the entire transaction

Question 30

Does testimony for acts that the statute of limitations has run for count as self incriminating?

Answer 30

No