mbe crim pro Flashcards

Question

pretial procedure

Answer 1

*The Initiation of Charges* Under the Fifth Amendment’s Presentment Clause, all federal felony charges must be initiated by indictment by a grand jury unless the defendant waives indictment. * An indictment requires probable cause to believe the defendant committed the crimes charged. The Fifth Amendment Presentment Clause has not been incorporated to the states, so states information can choose whether to proceed by grand jury indictment or by information * If proceeding by information, there must be a preliminary hearing before a neutral judge to determine whether there is probable cause **VVVVVVVVVVVVVVVVV** *Proceedings before the Grand Jury* Grand juries can consider evidence that has been obtained illegally and hearsay evidence in deciding whether there is probable cause to indict. Defendants do not have the right to testify before the grand jury or to call witnesses. Defendants has no constitutional right to confront witnesses or present evidence But, Defendant can still "plead the fifth" Witnesses do not have the right to counsel within the grand jury room, although they can leave the grand jury room to consult with their lawyers. Grand jury proceedings are held in private the grand jury does not have to be unanimous **VVVVVVVVVVVVVVVVVV** *Competence to Stand Trial* Test: Whether the defendant comprehends the nature of the proceedings against him and can aid his lawyer in defending the case If a defendant is competent to stand trial, he is also competent to plead guilty and waives the right to trial. **VVVVVVVVVVVVVVVVVV** *Guilty Pleas* The majority of defendants do not go to trial; the charges are either dismissed or the defendant pleads guilty when a defendant pleads guilty, he waives various trial rights, such as the right to put the prosecution to its proof, to confront and produce witnesses, to trial by jury, to challenge the introduction of evidence, to appeal if there is a conviction For a guilty plea to be valid, the defendant must knowingly and intelligently waive these rights. This is accomplished through plea allocution, where the judge: * Informs the defendant of his rights and ensures the defendant understands those rights; * Informs the defendant of the possible sentences; * informs the defendant of immigration consequences (the judge is not required to inform the defendant of all collateral consequences, such as difficulty getting student loans); * Makes sure there is a factual basis for the plea; * determines that the plea did not result from force, coercion, threats, or promises If a defendant challenges his plea agreement and succeeds in reopening the case, the prosecution can reinstate charges that it had dropped. The defendant is entitled to competent assistance from counsel in the plea bargaining process. **VVVVVVVVVVVVVVVV** *bail* The Eighth Amendment forbids the setting of excessive bail, but does not state outright that bail must be offered pending trial. General rule: Bail is available unless the defendant poses either a flight risk or a danger to the community. There is a presumption in favor bail. Courts can impose pretrial release conditions on defendants, such as house arrest, avoidance of particular people, or reporting requirements.

Answer 2

*Sixth Amendment Right to a Jury Trial* A defendant has a right to jury trial for all serious offenses, for which the authorized punishment is more than 6 months. The Sixth Amendment right to counsel attaches in misdemeanor cases only if a sentence of incarceration is actually imposed. **VVVVVVVVVV** *jury size* federal: a jury in a federal criminal case must have 12 members and must decide the case unanimously States: Can use juries of 6 or more in criminal cases, and must decide the case unanimously **VVVVVVVVVV** *Jury Selection* Begins with a venire or jury pool * Must represent a fair cross section of the community from which no distinctive group is excluded The petit or petty jury is selected through the process of voir dire. * Two ways to remove potential jurors: challenges for cause and peremptory challenges. * The actual jury that is seated must be impartial, but it does not have to reflect a fair cross-section of the community. * For-cause challenges—Used to ensure an impartial jury * jurors can be removed for cause when they reveal something that will prevent them from being impartial and deliberating fairly * there is a presumption of bias when: a juror knows one of the parties or the victim; if a juror was a friend of one of the witnesses; or worked for the defendant’s company * there is no limit to number of for cause challenges Peremptory challenges—Can generally be made for any reason, including hunches * Exception: Neither side can challenge jurors on the basis of race or sex (protected under Fourteenth Amendment Equal Protection Clause) * each side is statutorily limited to number of peremptory challenges **VVVVVVVVVVVVV** 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 **VVVVVVVVVVVVVVVV** *inconsistent jury verdict* incompatible verdicts (like where jury finds defendant not guilty of one offense but guilty of another that was predicated on commission of the first offense) in such circumstances, guilty verdict cannot be challenged based upon inconsistency rationale: jury may have reached decision to acquit through mistake, compromise, or leniency and its decision should not be disturbed acquittal of a predicate offense does not mandate acquittal of a related offense, cannot challenge it based on inconsistency, BUT may still challenge conviction on ground that evidence was legally insufficient to convict

Answer 3

*speedy trial rights* Defendants can be injured by the passage of time between an alleged crime and their trial Statutes of limitations give defendants repose. * Statutes of limitations normally begin to run when the crime occurred * for continuing offenses, the SOL does not begin to run until the end of the offense (e.g., a conspiracy starts on the day of agreement but continues until the conspiracy’s purpose has been achieved or abandoned). two constitutional provisions that protect against delay * the due process clause protects against pre-accusation delay. It’s relatively toothless, as long as the limitations period has not run * the speedy trial clause of the 6th amendment protects defendants against delay that occurs between the time of arrest or indictment (whichever comes first) and the time of trial * A court faced with a Speedy Trial Clause claim looks at four factors: 1. Length of the delay; 2. reasons for the delay 3. Whether the defendant asserted the right to a speedy trial; and 4. risk of prejudice to the defendant **VVVVVVVVVVV** *public trial rights* The Sixth Amendment and First Amendment, taken together, protect the rights of the defendant (Sixth) and the public (First) to attend public trials. **VVVVVVVVVVV** *confrontation clause* Sixth Amendment guarantees a defendant the right to confront the witnesses against him, as well as the right to compulsory process to produce his own witnesses. a witness may invoke the right against self-incrimination in response to specific questions, BUT such an invocation AFTER testimony made may violate defendant's right to confrontation; denial of opportunity to cross-examine prosecution witness with regard to bias violates the confrontation clause and it a witness invokes this privilege and prevents cross-exam, his testimony should be stricken crawford doctrine: * if a statement is testimonial (i.e., made under circumstances which would lead a reasonable person to believe that the statement would be used at a later trial), then the Sixth Amendment bars admission of the statement if: the declarant is unavailable and the defendant had no prior opportunity to cross-examine the witness * For non-testimonial statements, look to the rules of evidence. bruton doctrine: * A defendant’s own statements are always admissible against him. this is true even if the defendant does not testify at trial * If there are co-defendants, a non-testifying co-defendant’s statements are not admissible against the other defendant defendant's right to present witnesses: * The defendant has the right to testify on his own behalf. He also has the right to compulsory process to obtain witnesses in his defense. right to confrontation is waived if the defendant * voluntarily leaves the proceedings or * is excluded for good cause (misconduct) after receiving a warning from the court a defendant may be excluded from the courtroom to protect a minor witness in RARE situation when its necessary to further an important public policy OTHER THAN a generalized presumption of trauma. * to make this determination, the court must make an INDIVIDUALIZED finding based on evidence **VVVVVVVVVVVVV** *burden of proof* The prosecution must prove every element of the crime beyond a reaonsbale doubt Distinguish elements of the crime from affirmative defenses * The government can place the burden of proof with regard to affirmative defenses (insanity, self-defense, entrapment, mistake) on defendant

Answer 4

there must be probable cause to believe that the arrested individual has committed a crime can be with or without arrest warrant *pretext arrest*: as long as police have probable cause to believe an individual committed a crim, its irrelevant whether the officer stopped that person for the crim for which there is probable cause or some other crime

Answer 5

an officer can arrest an individual without a warrant in a public place, either for a crime committed in the officer's presence or based on probable cause to believe the individual committed a felony if the crime was not committed in the officer's presence, the officer can make any arrest only for a felony an arrest that is illegal does not prevent proseuction fo crime, but may result in exclusion of evidence discovered during arrest

Answer 6

* attaches in jury trial when jury impaneled and sworn * attaches in non-jury trial- when 1st witness sworn

Answer 7

no double jeopardy (Retrial permitted for the SAME offense) * after final judgment, exception is separate sovereign rule, can be tried in another state/fed court * no attachment= jury was not impaneled and sworn in OR judge did not begin to hear evidence * mistrial= requested by defendant OR based on manifest necessity * appeal= appellate court discovered trial error and remanded case * new facts= facts necessary for greater offense did not exist at first trial * guilty plea to lesser offense= greater offense was charged at time of plea to a lesser offense * hung jury * defendant breaches plea bargain agreement **VVVVV** BUT a retrial is permitted when a defendant's conviction was overturned on appeal **unless** either of the following circumstances applies: * A defendant may not be retried if the conviction was reversed based on insufficiency of the evidence. * A defendant may not be retried on a greater offense when he/she was convicted only of a lesser offense because the conviction acts as an implied acquittal of the greater offense.

Answer 8

* if first trial not guilty of robbert, second trial can not be felony murder * but 2nd trial could be involuntary manslaughter if victim dies later

Answer 9

before indictment= 5th a right to counsel after indictment= you have 6th a right to counsel you have right at all critical stages of proceedings * immediately attaches once judicial proceedings commence * supposed to help prejudice the defendant's right to a fair trial critical stages of proceedings: * interrogations and lineups * preliminary hearings and arraignments * plea negotiations and hearings * trial and sentencing * appeals | initial appearance DOES NOT TRIGGER 6TH A RIGHT TO COUNSEL ## Footnote initial appearance DOES NOT TRIGGER 6TH A RIGHT TO COUNSEL acronym for 6th a critical stages IT APPALS (me ;)) I= Interrogation T= TRIAL A= appeals P= preliminary hearing P= plea negotiation and hearing A= arraignment L= line up S= sentencing

Answer 10

The constitutional right to counsel at probation-revocation proceedings is not absolute. However, the right is triggered in two circumstances. due process requires access to counsel at a probation-revocation proceeding if the individual facing revocation timely asserts that: * he/she did not commit the alleged violation of probation **or** * reasons that are complex or otherwise difficult to develop in court justified the violation or mitigated its commission. **VVVVVVVVVVVVVVVVVVVVVVVVV** Note: Sixth Amendment guarantees the right to counsel at probation-revocation proceedings when a sentence for the underlying offense: * has not yet been imposed and will be imposed if the probation is revoked. Reasoning: Although probation-revocation proceedings are not considered a stage of prosecution, sentencings are a critical stage of prosecution in which the right to counsel applies.

Answer 11

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 12

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 13

*Four Prosecutorial Duties* (1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1. Evidence that tends to show that the defendant is not guilty of the crimes charged 2. Evidence that would enable the defense to impeach the credibility of prosecution witnesses * exculpatory evidence—disclosure could change the outcome of the case * Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. (Includes evidence within the control of the government (including the police)) * If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information (Many states and some D.A.s offices have an open file policy allowing the defense to see the information.) (2) a prosecutor may not knowingly present false testimony (3) a prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (4) A prosecutor may not comment on a defendant’s right to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). * A prosecutor can comment on a defendant’s silence before his Miranda rights attached. **VVVVVVVVVVVVVVVVV** *Prosecutorial Misconduct* * Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a new trial or reversal of a conviction.

Answer 14

The Supreme Courti has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. (1) conflicts of interest * Joint representation can lead to a conflict of interest * If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. * If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to forward with joint representation * a criminal defendant right to be represented by an attorey of his choosing is subject to limitations, including the 6th amendment gurantee of an effective advocate for a criminal defendant; court MUST disqualift an attorney from representing co-defendant when there is an actual, present conflict * a court MAY also disqualify attorney where there is a serious potential for conflict of itnerest even if defendant waives potnetial conflict of interest, court is not required to accept the waiver * If a conflict of interest actually affects counsel’s behavior, there is a prejudice. The defendant is not required to show actual innocence in order to obtain a new trial. (2) effective assistance the strickland test- assesses whether defendant was denied effective assistance * Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in (An attorney who has failed to utilize an investigative device used routinely by other defense attorneys in the state may be considered not to have met the reasonableness standard) * prejudice: there is a reasonable probabiltiy that, had counsel performed effectively, the result would have been different * Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been convicted if the lawyer had done a proper job * Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

Answer 15

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 16

*Four Prosecutorial Duties* (1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1. Evidence that tends to show that the defendant is not guilty of the crimes charged 2. Evidence that would enable the defense to impeach the credibility of prosecution witnesses * exculpatory evidence—disclosure could change the outcome of the case * Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. (Includes evidence within the control of the government (including the police)) * If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information (Many states and some D.A.s offices have an open file policy allowing the defense to see the information.) (2) a prosecutor may not knowingly present false testimony (3) a prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (4) A prosecutor may not comment on a defendant’s right to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). * A prosecutor can comment on a defendant’s silence before his Miranda rights attached. **VVVVVVVVVVVVVVVVV** *Prosecutorial Misconduct* * Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a new trial or reversal of a conviction.

Answer 17

The Supreme Courti has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. (1) conflicts of interest * Joint representation can lead to a conflict of interest * If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. * If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to forward with joint representation * a criminal defendant right to be represented by an attorey of his choosing is subject to limitations, including the 6th amendment gurantee of an effective advocate for a criminal defendant; court MUST disqualift an attorney from representing co-defendant when there is an actual, present conflict * a court MAY also disqualify attorney where there is a serious potential for conflict of itnerest even if defendant waives potnetial conflict of interest, court is not required to accept the waiver * If a conflict of interest actually affects counsel’s behavior, there is a prejudice. The defendant is not required to show actual innocence in order to obtain a new trial. (2) effective assistance the strickland test- assesses whether defendant was denied effective assistance * Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in * prejudice: there is a reasonable probabiltiy that, had counsel performed effectively, the result would have been different * Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been convicted if the lawyer had done a proper job * Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

Answer 18

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is: * properly admitted in the jurisdiction * available for trial and * No conflict or other reason to disqualify the lawyer. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversed Indigent defendants: no right to appointment of the lawyer of their choice. * As long as they receive competent assistance, they have received all the Constitution guarantees them.

Answer 19

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 20

*Four Prosecutorial Duties* (1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1. Evidence that tends to show that the defendant is not guilty of the crimes charged 2. Evidence that would enable the defense to impeach the credibility of prosecution witnesses * exculpatory evidence—disclosure could change the outcome of the case * Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. (Includes evidence within the control of the government (including the police)) * If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information (Many states and some D.A.s offices have an open file policy allowing the defense to see the information.) (2) a prosecutor may not knowingly present false testimony (3) a prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (4) A prosecutor may not comment on a defendant’s right to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). * A prosecutor can comment on a defendant’s silence before his Miranda rights attached. **VVVVVVVVVVVVVVVVV** *Prosecutorial Misconduct* * Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a new trial or reversal of a conviction.

Answer 21

The Supreme Courti has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. (1) conflicts of interest * Joint representation can lead to a conflict of interest * If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. * If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to forward with joint representation * a criminal defendant right to be represented by an attorey of his choosing is subject to limitations, including the 6th amendment gurantee of an effective advocate for a criminal defendant; court MUST disqualift an attorney from representing co-defendant when there is an actual, present conflict * a court MAY also disqualify attorney where there is a serious potential for conflict of itnerest even if defendant waives potnetial conflict of interest, court is not required to accept the waiver * If a conflict of interest actually affects counsel’s behavior, there is a prejudice. The defendant is not required to show actual innocence in order to obtain a new trial. (2) effective assistance the strickland test- assesses whether defendant was denied effective assistance * Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in * prejudice: there is a reasonable probabiltiy that, had counsel performed effectively, the result would have been different * Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been convicted if the lawyer had done a proper job * Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

Answer 22

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is: * properly admitted in the jurisdiction * available for trial and * No conflict or other reason to disqualify the lawyer. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversed Indigent defendants: no right to appointment of the lawyer of their choice. * As long as they receive competent assistance, they have received all the Constitution guarantees them.

Answer 23

Defendants are entitled to waive the right to counsel and to represent themselves as long as they do it knowingly and voluntarily. The competence standard for waiving counsel: are they competent enough to understand what they are doing. A defendant who proceeds pro se does not have a constitutional right to a “back-up” lawyer.

Answer 24

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 25

The Supreme Courti has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. (1) conflicts of interest * Joint representation can lead to a conflict of interest * If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. * If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to forward with joint representation * a criminal defendant right to be represented by an attorey of his choosing is subject to limitations, including the 6th amendment gurantee of an effective advocate for a criminal defendant; court MUST disqualift an attorney from representing co-defendant when there is an actual, present conflict * a court MAY also disqualify attorney where there is a serious potential for conflict of itnerest even if defendant waives potnetial conflict of interest, court is not required to accept the waiver * If a conflict of interest actually affects counsel’s behavior, there is a prejudice. The defendant is not required to show actual innocence in order to obtain a new trial. (2) effective assistance the strickland test- assesses whether defendant was denied effective assistance * Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in * prejudice: there is a reasonable probabiltiy that, had counsel performed effectively, the result would have been different * Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been convicted if the lawyer had done a proper job * Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

Answer 26

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is: * properly admitted in the jurisdiction * available for trial and * No conflict or other reason to disqualify the lawyer. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversed Indigent defendants: no right to appointment of the lawyer of their choice. * As long as they receive competent assistance, they have received all the Constitution guarantees them.

Answer 27

*Four Prosecutorial Duties* (1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1. Evidence that tends to show that the defendant is not guilty of the crimes charged 2. Evidence that would enable the defense to impeach the credibility of prosecution witnesses * exculpatory evidence—disclosure could change the outcome of the case * Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. (Includes evidence within the control of the government (including the police)) * If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information (Many states and some D.A.s offices have an open file policy allowing the defense to see the information.) (2) a prosecutor may not knowingly present false testimony (3) a prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (4) A prosecutor may not comment on a defendant’s right to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). * A prosecutor can comment on a defendant’s silence before his Miranda rights attached. **VVVVVVVVVVVVVVVVV** *Prosecutorial Misconduct* * Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a new trial or reversal of a conviction.

Answer 28

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 29

*Four Prosecutorial Duties* (1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1. Evidence that tends to show that the defendant is not guilty of the crimes charged 2. Evidence that would enable the defense to impeach the credibility of prosecution witnesses * exculpatory evidence—disclosure could change the outcome of the case * Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. (Includes evidence within the control of the government (including the police)) * If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information (Many states and some D.A.s offices have an open file policy allowing the defense to see the information.) (2) a prosecutor may not knowingly present false testimony (3) a prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (4) A prosecutor may not comment on a defendant’s right to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). * A prosecutor can comment on a defendant’s silence before his Miranda rights attached. **VVVVVVVVVVVVVVVVV** *Prosecutorial Misconduct* * Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a new trial or reversal of a conviction.

Answer 30

The Supreme Courti has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. (1) conflicts of interest * Joint representation can lead to a conflict of interest * If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. * If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to forward with joint representation * a criminal defendant right to be represented by an attorey of his choosing is subject to limitations, including the 6th amendment gurantee of an effective advocate for a criminal defendant; court MUST disqualift an attorney from representing co-defendant when there is an actual, present conflict * a court MAY also disqualify attorney where there is a serious potential for conflict of itnerest even if defendant waives potnetial conflict of interest, court is not required to accept the waiver * If a conflict of interest actually affects counsel’s behavior, there is a prejudice. The defendant is not required to show actual innocence in order to obtain a new trial. (2) effective assistance the strickland test- assesses whether defendant was denied effective assistance * Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in * prejudice: there is a reasonable probabiltiy that, had counsel performed effectively, the result would have been different * Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been convicted if the lawyer had done a proper job * Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

Answer 31

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is: * properly admitted in the jurisdiction * available for trial and * No conflict or other reason to disqualify the lawyer. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversed Indigent defendants: no right to appointment of the lawyer of their choice. * As long as they receive competent assistance, they have received all the Constitution guarantees them.

Answer 32

There are three primary constitutional provisions that regulate sentencing: 1. The Cruel and Unusual Punishments Clause of the Eighth Amendment 2. The Double Jeopardy Clause of the Fifth Amendment 3. The Apprendi line of cases under the Sixth Amendment **VVVVVVVVVVVVVVV** *The Cruel and Unusual Punishment Clause* (1) Length of Prison Sentences * The Supreme Court has given the government free rein to authorize virtually any length sentence for virtually any crime * Exception: LWOP for crimes committed while a juvenile are unconstitutional (2) Capital Punishment The death penalty can be imposed in cases only when the victim dies * It is constitutionally disproportionate to apply the death penalty in non-homicide cases. * BUT an accomplice to a murder crime CAN be sentenced to death if they intended/attempted to kill OR significantly participated in felony AND acted with reckless indifference The death penalty cannot be imposed on: * Defendants who were under the age of 18 when they committed the crime * Defendants who suffer from cognitive impairment (IQ lower than 70, cant be executed, if its between 70-75 then needs an individualized assessment to determine if he has intellectual disability) * Defendants who are insane at the time of execution The state must provide a variety of special safeguards before executing a defendant, including a bifurcated trial process, the opportunity to present mitigating evidence, and a process that sufficiently narrows the class of death-sentence eligible offenses. (3) Other Types of Sentences or Punishments The Eighth Amendment also prohibits the imposition of cruel or unusual/degrading punishments. Courts have extended this protection to conditions of confinement (e.g., overcrowding). You must have been convicted of a crime for the Eighth Amendment to apply. **VVVVVVVVVVVVVV** The Apprendi Doctrine (Sixth Amendment) The Sixth Amendment right to a jury trial prohibits judges from enhances criminal sentences beyond the statutory maximums based on facts other than those decided by the jury beyond a reasonable doubt. Many statutes give the judge wide discretion to sentence the defendant. Exception: Sentence enhancement based on prior felony convictions need not be found by a jury.

Answer 33

*double jeopardy* Provides three separate protections: 1. protection against prosecution for the same offense after acquittal 2. protection against prosecution for the same offense after conviction 3. protection against multiple prosecutions or punishments for the same offense (1) the same offense The Blockburger test: Ask whether each statutory provision requires proof of an element that the other does not. Two warnings about the same offense test: * Offenses with different victims are separate offenses for double jeopardy purposes. * Separate Sovereigns Rule: If two different sovereigns have jurisdiction over the crime committed (e.g., a state and the U.S. or two different states), they can each try the defendant separately. The Double Jeopardy Clause does not bar a defendant from being tried, convicted, and punished in both jurisdictions. * Charged v. punished: A defendant can be charged and tried for an offense and a lesser-included offense at the same trial, but the defendant can only be punished for one offense NOTE: double jeopardy DOES apply to criminal fines BUT distinguish this from due process. due process prohibits the imposition of a harsher sentence upon retrial of defendant who succesfully appealed a convictionwhen the harsher sentence is punishment for exercising the right to appeal (2) attachment and end of jeopardy jeopardy attaches when the jury is sworn in, or in a bench trial, when the first witness is sworn in * Before the trial begins, the prosecutor can add, drop, or change the charges against a defendant without Double Jeopardy problems. acquittal: if the defendand is acquitted, its the end of the case and the defendant cannot be re-tried by the same jurisdiction for the same offense * the prosecution cannot appeal from an acquittal Conviction: If the defendant is convicted and he either does not appeal or his conviction is affirmed, that is the end of jeopardy and he cannot be retried by the same jurisdiction for the same offense. * if the jury convicts the defendant, and he appeals and gets the conviction reversed, he can be retried unless the reversal was based on a finding of insufficiency evidence Mistrial—Two kinds of mistrials: * Manifest necessity: Defendant can be retried * no manifest necessity: defendant can not be retried by that jurisdiction

Answer 34

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 35

*Four Prosecutorial Duties* (1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1. Evidence that tends to show that the defendant is not guilty of the crimes charged 2. Evidence that would enable the defense to impeach the credibility of prosecution witnesses * exculpatory evidence—disclosure could change the outcome of the case * Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. (Includes evidence within the control of the government (including the police)) * If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information (Many states and some D.A.s offices have an open file policy allowing the defense to see the information.) (2) a prosecutor may not knowingly present false testimony (3) a prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (4) A prosecutor may not comment on a defendant’s right to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). * A prosecutor can comment on a defendant’s silence before his Miranda rights attached. **VVVVVVVVVVVVVVVVV** *Prosecutorial Misconduct* * Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a new trial or reversal of a conviction.

Answer 36

The Supreme Courti has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. (1) conflicts of interest * Joint representation can lead to a conflict of interest * If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. * If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to forward with joint representation * a criminal defendant right to be represented by an attorey of his choosing is subject to limitations, including the 6th amendment gurantee of an effective advocate for a criminal defendant; court MUST disqualift an attorney from representing co-defendant when there is an actual, present conflict * a court MAY also disqualify attorney where there is a serious potential for conflict of itnerest even if defendant waives potnetial conflict of interest, court is not required to accept the waiver * If a conflict of interest actually affects counsel’s behavior, there is a prejudice. The defendant is not required to show actual innocence in order to obtain a new trial. (2) effective assistance the strickland test- assesses whether defendant was denied effective assistance * Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in * prejudice: there is a reasonable probabiltiy that, had counsel performed effectively, the result would have been different * Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been convicted if the lawyer had done a proper job * Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

Answer 37

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is: * properly admitted in the jurisdiction * available for trial and * No conflict or other reason to disqualify the lawyer. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversed Indigent defendants: no right to appointment of the lawyer of their choice. * As long as they receive competent assistance, they have received all the Constitution guarantees them.

Answer 38

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 39

*Four Prosecutorial Duties* (1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1. Evidence that tends to show that the defendant is not guilty of the crimes charged 2. Evidence that would enable the defense to impeach the credibility of prosecution witnesses * exculpatory evidence—disclosure could change the outcome of the case * Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. (Includes evidence within the control of the government (including the police)) * If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information (Many states and some D.A.s offices have an open file policy allowing the defense to see the information.) (2) a prosecutor may not knowingly present false testimony (3) a prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (4) A prosecutor may not comment on a defendant’s right to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). * A prosecutor can comment on a defendant’s silence before his Miranda rights attached. **VVVVVVVVVVVVVVVVV** *Prosecutorial Misconduct* * Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a new trial or reversal of a conviction.

Answer 40

The Supreme Courti has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. (1) conflicts of interest * Joint representation can lead to a conflict of interest * If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. * If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to forward with joint representation * a criminal defendant right to be represented by an attorey of his choosing is subject to limitations, including the 6th amendment gurantee of an effective advocate for a criminal defendant; court MUST disqualift an attorney from representing co-defendant when there is an actual, present conflict * a court MAY also disqualify attorney where there is a serious potential for conflict of itnerest even if defendant waives potnetial conflict of interest, court is not required to accept the waiver * If a conflict of interest actually affects counsel’s behavior, there is a prejudice. The defendant is not required to show actual innocence in order to obtain a new trial. (2) effective assistance the strickland test- assesses whether defendant was denied effective assistance * Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in * prejudice: there is a reasonable probabiltiy that, had counsel performed effectively, the result would have been different * Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been convicted if the lawyer had done a proper job * Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

Answer 41

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is: * properly admitted in the jurisdiction * available for trial and * No conflict or other reason to disqualify the lawyer. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversed Indigent defendants: no right to appointment of the lawyer of their choice. * As long as they receive competent assistance, they have received all the Constitution guarantees them.

Answer 42

The Due Process Clause requires that judges possess neither actual nor apparent bias Actual bias consists of interests that would impair the judge’s impartiality

Answer 43

*Four Prosecutorial Duties* (1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence: 1. Evidence that tends to show that the defendant is not guilty of the crimes charged 2. Evidence that would enable the defense to impeach the credibility of prosecution witnesses * exculpatory evidence—disclosure could change the outcome of the case * Brady material includes inconclusive lab reports, witness descriptions that do not match the defendant, cooperation agreements with witnesses, etc. (Includes evidence within the control of the government (including the police)) * If the defendant pleads guilty after negotiations, the prosecution is not required to share the Brady information (Many states and some D.A.s offices have an open file policy allowing the defense to see the information.) (2) a prosecutor may not knowingly present false testimony (3) a prosecutor may not contact (or direct others to contact) a defendant outside the presence of his counsel (4) A prosecutor may not comment on a defendant’s right to testify at trial or make unfair remarks about the defendant to the jury (i.e., cannot violate the defendant’s Fifth Amendment right to remain silent). * A prosecutor can comment on a defendant’s silence before his Miranda rights attached. **VVVVVVVVVVVVVVVVV** *Prosecutorial Misconduct* * Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a new trial or reversal of a conviction.

Answer 44

Defendants who can afford retained counsel are entitled to the counsel of their choice as long as the lawyer is: * properly admitted in the jurisdiction * available for trial and * No conflict or other reason to disqualify the lawyer. A defendant who is denied the retained counsel of his choice is entitled to have his conviction reversed Indigent defendants: no right to appointment of the lawyer of their choice. * As long as they receive competent assistance, they have received all the Constitution guarantees them.

Answer 45

The Supreme Courti has held that the Sixth Amendment not only guarantees defendants the right to the assistance of counsel, it also guarantees them effective assistance of counsel at all critical stages of prosecution. (1) conflicts of interest * Joint representation can lead to a conflict of interest * If there is an actual conflict, the judge must warn the defendants that joint representation is a risk and give them the opportunity to get separate counsel. * If they choose not to get separate counsel, the judge must get an affirmative waiver in which the defendants acknowledge that there is a conflict and that they would prefer to forward with joint representation * a criminal defendant right to be represented by an attorey of his choosing is subject to limitations, including the 6th amendment gurantee of an effective advocate for a criminal defendant; court MUST disqualift an attorney from representing co-defendant when there is an actual, present conflict * a court MAY also disqualify attorney where there is a serious potential for conflict of itnerest even if defendant waives potnetial conflict of interest, court is not required to accept the waiver * If a conflict of interest actually affects counsel’s behavior, there is a prejudice. The defendant is not required to show actual innocence in order to obtain a new trial. (2) effective assistance the strickland test- assesses whether defendant was denied effective assistance * Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in * prejudice: there is a reasonable probabiltiy that, had counsel performed effectively, the result would have been different * Cases that go to trial: Defendant must show that there was a reasonable probability that he would not have been convicted if the lawyer had done a proper job * Guilty pleas: Defendant must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced