lecture 3.1

Question 1

4 ways to charge in a federal system

Answer 1

probable cause
complaint
information
indictment

Question 2

Probable cause (charging)

Answer 2

no written document but an arrest
grand jury to follow (5th right)

Question 3

complaint (charging)

Answer 3

affidavit & arrest warrant based on PC
grand jury to follow (5th right)

Question 4

information (charging)

Answer 4

used when prosecutor knows defendant won’t fight charges
‘pleading guilty’ before guity is an option
waives 5th right to a grand jury

Question 5

indictment (charging)

Answer 5

comes out of grand jury
simple & speaking
5th absolute right to go to trial under an indictment

Question 6

simple indictment

Answer 6

simple language, short, covers law

Question 7

speaking indictment

Answer 7

tells a story
- players, entities, acts
trying to avoid Bill of Particulars
sharing overt acts (jury appeal)

Question 8

indictment & prosecutor’s role

Answer 8

prosecutorial discretion - charge most readily provable offenses
‘best victim/story’

Question 9

conspiracy (statute of limitations)

Answer 9

can charge for anything at any stage so long as last act was within last 5 years

Question 10

sex act (statute of limitations)

Answer 10

must be within last 5 years (no continuing nature)

Question 11

prosecutorial vindictiveness

Answer 11

can’t charge one crime, try to convince the defandant to plead out & add charges if he doesn’t

Question 12

selective prosecution

Answer 12

prohibition on prosecution based on race, gender, religion or other consitutionally protected basis
- proof of disriminatory motive as well as discriminatory impact

Question 13

anonymity rule

Answer 13

innocent parties kept anonymous in indictment (does not extend to co-conspirators)

Question 14

co-conspirators in indictments

Answer 14

may be named
OR
‘others known and unknown’ if unindicted

Question 15

RICO
racketeer influenced and corrupt organizations

elements

Answer 15

elements to prosecute
- enterprise comitting 3 criminal acts over 2 years
in practice it’s more frequent & violent offenses, largely mafia/gang related but has started to expand

Question 16

Diddy’s indictment

Answer 16

speaking indictment
racketeering conspiracy

Question 17

Scottsboro Boys (1931)

Answer 17

• right to counsel incorporated by 14th as fundamental fairness under 5th in capital cases
• ineffective counsel in case
  failure to appoint effective counsel was violation of 14th in 6-3 decision

Question 18

Miranda, Gideon, Mapp

Answer 18

series of SCOTUS decisions that made federal laws applicable to states (14th)

Question 19

Johnson v. Zerbst (1938)

Answer 19

6th grants right to counsel in federal cases/prosecutions

Question 20

Betts v. Brady (1942)

Answer 20

6-3 decision that 14th incorporated fundamental fairness, requires counsel in cases with ‘special circumstances’ for non-capital cases

Question 21

Gideon v. Wainwright (1963)

Answer 21

overruled Betts
right to counsel under 6th is fundamental right obligatory unto states through 14th
federal/state all have right to counsel (indigent included)

Question 22

Argersinger v. Hamlin (1972)

Answer 22

6th right to counsel includes misdemeanors
no right to jury trial for any offense with less than 6 month max sentence

Question 23

Alabama v. Shelton (2002)

Answer 23

establishes right to counsel even when sentencing to probation
- if probation was violated but defendant didn’t have counsel, can’t sentence to incarceration

Question 24

Wade, Gilbert, Kirby - 60s

Answer 24

established right to counsel at any critical stage of prosecution

Question 25

Faretta v. California (1975)

Answer 25

establishes defendant’s right to waive counsel & defend themselves
Faretta hearings ensure person wants to defend themselves

Question 26

In re Ryder (1967)

Answer 26

attorney can’t engage in illegal acts to assist client

Question 27

Strickland v. Washington (1984)

Answer 27

Strickland rule: 2-pronged showing of ineffective counsel
(1) serious error that lawyer was not functioning as ‘counsel under 6th’
(2) reasonable probability that outcome would be different had they been ‘effective’