MBE Criminal Procedure

Question 1

Search & Seizure: Search Elements
1. Who is conducting the search?
2. What is a search?
3. When can they search?

Answer 1

1) WHO? - Government official (police)

• or one under the direction of a government official.

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2) WHAT IS A SEARCH - Government’s conduct violates suspect’s reasonable expectation of privacy

• Open Fields: no expectation of privacy
• Curtilage The curtilage (e.g., porch, yard) is a constitutionally protected area since it immediately surrounds and is closely associated with a person’s home. Police cannot intrude in an unusual manner for an uncommon purpose (e.g., to conduct a canine search), a warrant is generally required.

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3) WHEN CAN THEY SEARCH - If they have PROBABLE CAUSE

• reasonable person can conclude items related to criminal activity can be found at the location

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BONUS: Generally, government needs a Warrant to conduct a search if there is a reasonable expectation of privacy for the evidence to be admissible.

• General Rule - No Warrant, No Admissibility
• see Warrant EXCEPTIONS - 7

• D cannot challenge an unlawful search of a 3rd party’s premises because it infringed upon the third party’s right to privacy—not the defendant’s. (no reasonable expectation of privacy)

Question 2

Search & Seizure: Warrants (requirements)

Answer 2

WARRANTS = PROBABLE CAUSE

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SEARCH WARRANT

1) Issued by Neutral and detached magistrate
2) based on a finding of probable cause to believe that the items sought are fruit, instrumentalities, or evidence, of crime.
3) supported by a sworn oath or affidavit
4) Particularly describes place to be searched/items to be seized

Probable Cause

• Probable cause exists when there is a reasonable belief (more than mere suspicion) that evidence of a crime is located in the place to be searched.
• A search warrant is invalid if (1) the application contained a false statement necessary to the finding of probable cause and (2) the officer knew that the statement was false or recklessly disregarded its falsity.

Informants Tip

• Facts supporting probable cause may come from several sources, including information from a reliable, known informant.
• However, information from an unknown informant must be independently verified by police.
• Whether or not information turns out to be true is irrelevant (good faith belief)

Scope of Warrant

• Make sure you read facts carefully as to whether the cops EXCEEDED SCOPE of the Warrant
• once they find what they look for, they must cease searching.
• Exception > Plain View

anticipatory search warrant—When police seek the issuance of an anticipatory search warrant, the probable cause requirement is met if

• (1) at the time of issuance, there is probable cause to believe the triggering condition will occur and
• (2) if the condition does occur, there is a fair probability that contraband or evidence of a crime will be found.

Persons on the premises – When executing a warrant, police may not lawfully search a person who is not named in the warrant without independent justification. Such justification may come from:

• (1) reasonable suspicion that the person is armed or
• (2) probable cause to believe that the person committed, is committing, or is about to commit a crime.

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Arrest Warrants - Authorizes an officer to enter a person’s home to arrest them.

• 1) issued by a nuetral and detached magistrate
• 2) based on a finding of probable cause to believe that the individual has committed a particular crime.
• 3) supported by a sworn oath or affidavit
• 4) must name the person and identify the offense

Arestee’s Home / Third Party’s Home

• An arrest warrant implicitly authorizes entry into the arrestee’s home to serve the warrant if police have reason to believe that the arrestee is present.
• Does not authorize officers to enter a third party’s home or business. Police may only search for an arrestee in a third party’s home if they have a warrant for the search, exigent circumstances, or consent to enter.

Warrantless Arrests: There must be probable cause to believe that the arrested individual has committed a crime.

• anywhere in public
• crime committed in officer’s presence, or based on probable cause to believe individual commited a felony

Question 3

Search & Seizure: Exceptions to Warrant Requirement
(SPAACES)

Answer 3

When a WARRANT is NOT REQUIRED
(SPAACES)

1) Stop and Frisk — Terry Stop

• Stop (To ask Q’s) - Cops need REASONABLE SUSPICION that criminal activity is afoot.
• Frisk (for weapons) - need REASONABLE SUSPICION that there is a weapon on their person.

2) Plain View — If police are lawfully present, they can seize any item in “plain view” (or “plain smell”), even if that item was not named in the warrant.

3) Automobiles — Plain view > Probable Cause to believe that the car has contraband > Search incident to arrest

• Plain view generally
• If they have additional Probable Cause to believe that the car has contraband, they can search those parts of the vehicle that might contain contraband, even without an arrest.
• Passengers – Probable cause to believe that a vehicle contains evidence of a crime does not justify a warrantless search of a person who is, or had been, a passenger in the vehicle. Instead, police must have probable cause to believe that evidence is on the passenger before searching the passenger.
• scope of PC — If they have probable cause that the car has long barreled rifles, can’t search little small compartments
• Search incident to arrest — compartments within reach.

4) Administrative searches — Two kinds:

• Administrative warrants (e.g., fire or health inspections of a building)
• Warrantless administrative searches — used to ensure compliance with various administrative regulations; Regulation allowing warrantless searches must be necessary to further valid governmental interests, and the discretion must be limited.

Examples:

• Inventory Searches (vehicles in custody)
• Airplane boarding areas; (as long as the passenger can prevent the search by not boarding the plane)
• International borders
• Highly regulated industries (liquor stores, gun shops, etc.)
• Special needs searches; e.g., drug testing of railroad employees after an accident
• DUI Checkpoints and roadblocks – set up to stop cars on the basis of a neutral articulable standard and designed to serve a limited purpose closely related to the problem of an automobile’s inherent mobility
• Searches of students in public schools (reasonable suspicion that a student is violating the law or school rules, not too intrusive in light of age/sex and nature of infraciton)

5) Consent — Defendant can consent to a search.

• 3rd party with actual or apparent authority over property can consent for defendant. (joint control or shared use of premises)
• Consent can involve outright deception.

6) Exigent Circumstances — Emergencies, Immediate Danger of lost evidence

• Reasonable belief evidence may be lost or destroyed
• Hot Pursuit - Suspect fleeing
• DUI blood draw – Only way absent a warrant

7) Search Incident to a Lawful Arrest — immediate area around the individual

• Cars – passenger compartments within reach. Cannot put suspect in squad car and then search, no threat
• PROTECTIVE SWEEP – allowed if reasonable belief other SUSPECTS are in the house.
• DNA samples may be collected as part of search incident to arrest
• does not extend to an arrestee’s cell phone – Absent exigent circumstances, police must obtain a warrant before searching digital information on the cell phone of a person arrested

Question 4

Search & Seizure > Warrantless Arrest

Answer 4

Warrantless Arrests: Officer must have:

• Probable cause to believe individual commited a misdemeanor IN THE OFFICER’S PRESENCE
• Probable cause to believe individual commited a felony

Warrantless arrest inside a dwelling only if:

• There are exigent circumstances (e.g., felony hot pursuit or danger to others); or
• There is consent to enter.

Illegal Arrest

• Does not prevent prosecution for the crime. But, it may result in the exclusion of evidence discovered during the arrest.

Question 5

5th Amendment Priviledge Against Self-Incrimination

Answer 5

The Fifth Amendment privilege against self-incrimination

• protects individuals in criminal proceedings from being compelled to provide self-incriminating evidence that is testimonial in nature.
• This privilege does not apply to evidence that might subject a person to civil liability.

Corporations

• The privilege against self-incrimination does not apply to corporations
• This means that when a corporation is the target of an investigation, the custodian of corporate records (or other corporate officer) cannot refuse to produce subpoenaed documents by citing this privilege.
• This is true even if the documents would incriminate the custodian (or officer) personally.

Question 6

5th Amendment > Miranda

Answer 6

Miranda Warnings:

• As long as the substance of the Miranda warnings is communicated to the suspect, it will be sufficient

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Once there is (1) CUSTODIAL (2) INTERROGATION Triggers Miranda rights.

1) CUSTODIAL: You are in CUSTODY when you are placed under arrest or so restrained in his/her freedom of movement that a reasonable person would not feel free to leave. (objective standard)

• Do not need cuffs
• Prisoners are not necessarily treated as “in custody” for purposes of custodial interrogation if he is free to be taken back to his cell.
• Traffic stops Although traffic stops restrain freedom of movement, drivers are generally NOT IN CUSTODY for Miranda purposes because such encounters are typically brief and temporary.

2) INTERROGATION: Questions, words or actions that cops knew or should have known were likely to elicit an incriminating response.

• Voluntary Statements are not made while under interrogation are ADMISSABLE!!! (No interrogation element - NEED BOTH)
• Undercover Police / Government Agents – Miranda warnings are NOT required when a suspect who is subjected to a custodial interrogation is not aware that the interrogator is a police officer—i.e., when the officer is undercover, or when detectives have victim text suspect to ilicit incriminating responses

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Questioning must stop if suspect:

Invokes their right to remain silent

• Defendant must affirmatively invoke “I do not want to talk”; silence not enough
• After a substantial period of time, police can go back to the
  suspect, give warnings again, and seek to talk to the person again.

Invokes their right to counsel

• Right must be affirmatively invoked: “I want a lawyer”; it is not enough to ask for anyone else generally.
• Once invoked, if an attorney is present at the station, police must let suspect know; If right not invoked, police do not have to tell them that a lawyer is present.
• All interrogations must stop until either (i) lawyer is present (ii) suspect affirmatively re-initiates contact with police

WAIVER of Miranda

• there can be no effective waiver until the Miranda warnings are properly given
• MUST be KNOWINGLY and VOLUNTARY
• Long Breaks - Police should re-Mirandize the suspect prior to resuming the interrogation.

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Involuntary confessions – (e.g., those produced by coercion)

• COERCION – A defendant’s confession is coerced and thus involuntary if it is extracted by threats, violence, or express or implied promises sufficient to overbear the defendant’s will and capacity for self-determination. CANNOT BE USED either substantively OR for impeachment purposes
• Determining whether a confession was involuntary is judged by the totality of the circumstances.

Lies or fraud by the interrogators (i.e., lying about a co-conspirator’s confession)

• does not itself make the confession involuntary.

Miranda Violation Effect - STATEMENT

• CANNOT be used in the prosecution’s case in chief
• CAN be used to impeach

Miranda Violation Effect - PHYSICAL EVIDNECE

• PHYSICAL EVIDENCE obtained as a result of the non-Mirandized statement is ADMISSIBLE unless statement was coerced.

Question 7

Right to Counsel

Answer 7

5th Amendment Right to Counsel

Must be affirmatively invoked by the defendant

• The right applies to any/all charges, not offense-specific

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6th Amendment Right to Counsel - AUTOMATIC

• 1) AUTOMATICALLY ATTACHES once formal judicial proceedings commence (e.g., indictment, information, other filing of formal charges, preliminary hearing, arraignment) and
• 2) Guarantees that criminal defendants will thereafter have the assistance of counsel during ALL CRITICAL STAGES of prosecution in which jail time or suspended jail sentance is imposed:

Critical Stages

• Post-indictment: lineups, in-person identifications, interrogations
• Pre-trial: Preliminary hearings, Arraignments, bail hearings, pretrial motions
• Plea negotiations & hearings
• Trial & sentencing

NOT Critical Stages:

• Pre-charge lineups
• Photo-array identification
• Fingerprinting, handwriting & voice exemplars, blood samples
• Initial appearances, hearings to determine probable cause to detain defendant
• Discretionary appeals
• Post-conviction proceedings (eg, parole or probation hearing)

THE RIGHT to counsel is OFFENSE-SPECIFIC

• Only the offenses for which he has ACTUALLY BEEN CHARGED (and any lesser-included offenses)
• Right to counsel also attaches to any uncharged crime that constitutes the same offense as a formally charged crime. However, it does not attach to an uncharged crime that requires proof of an element that the other does not.
• With respect to those unrelated charges, the defendant can be questioned, either expressly or through undercover government agents.

Undercover Agents – Placing Undercover officers post-charge violate 6th Amendment because they are considered actions likely to elicit incriminating responses (interrogation; a critical stage) without the Defendant’s Counsel present.

• Contrary to Miranda warnings (pre-charging), no Need for Miranda Warnings with undercover cops

Waiver of Right to Counsel – VOLUNTARY, KNOWING, AND INTELLIGEENT

• After a defendant’s Sixth Amendment right to counsel has attached 9formal proceedings; charge) the police may initiate non-custodial interactions with the defendant outside the presence of his lawyer if the defendant waives that right
• waiver must be VOLUNTARY, KNOWING, AND INTELLIGEENT

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Identification Procedures 2 types

1) Photo Arrays - NOT CRITICAL

• Neither the defendant nor his lawyer has the right to be present, but police must turn over the array to the defendant.

2) Lineups

• Pre-indictment lineups: Defendant has no right to counsel.
• Post-Indictment lineup: Defendant has a right to have counsel present, if not, must be excluded.

Suppressing Identification

• In-court identification testimony may be unreliable if it stems from impermissably suggestive out-of-court identification procedures arranged by police.
• Therefore, such in-court identification testimony is admissible only if the prosecution demonstrates that it is sufficiently reliable—i.e., witness would have identified the defendant even without the suggestive lineup.
• Defendant must demonstrate that there was a substantial likelihood of misidentification

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Right to Counsel at Probation Revocation Proceedings

Due process requires counsel at a probation-revocation proceeding if the person

• (1) denies committing the alleged violation or
• (2) asserts that complex reasons justified or mitigated it.

The Sixth Amendment guarantees this right if a sentence for the underlying offense

• (1) has not been imposed and
• (2) will be imposed if the probation is revoked.

Question 8

Exclusionary Rule
(Fruit of the Poisonous Tree)

Answer 8

Exclusionary Rule – Evidence obtained in violation of the 4th, 5th, and 6th Amendments cannot be introduced at trial to prove a defendant’s guilt.

• 4th Amendment —Was there a search? Was there a seizure? If yes, was there probable cause?
• 5th Amendment —Was the defendant in custody? Was there an interrogation? Was the defendant given warnings? Did he invoke his rights?
• 6th Amendment —Did the Sixth Amendment right to counsel attach? Was this a critical stage? Suggestive lineup?

Fruit of the Poisonous Tree: The exclusionary rule also applies to evidence obtained as a result of the initial violation.

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Exceptions

1) Knock and announce — Officers executing a valid arrest warrant at a residence are required to knock and announce they are police.

• If they fail to do so, and discover evidence, that evidence does not have to be suppressed

2) Inevitable discovery — If the evidence would have been discovered anyway through lawful means, it will be admissible.

• Ex: Incriminating evidence would have been discovered during search despite Miranda violation

3) Independent source — Relevant evidence discovered on the basis of an independent source from the violation will be admissible.

• Ex: Police return to site of illegal search with valid warrant based on other information

4) Attenuation in the causal chain —Break in causal connection between illegal police conduct & discovery of evidence.

• Ex: incriminating statement made after an unlawful arrest is admissible if the connection between the arrest and the statement is so attenuated that the statement is considered voluntary.
• Ex: Substantial passage of time between illegal conduct & discovery of evidence

5) Good Faith — Applies to officers who rely on either (a) An existing law that was later declared unconstitutional; or (b) A warrant that, while facially valid, is later found to be defective. Officers can rely on a warrant unless:

• The warrant was obtained by fraud
• The warrant was obtained in reliance on an unacceptably bare-bones affidavit (defective on its face)
• The magistrate wholly abandoned his judicial role

6) Isolated negligence by law enforcement personnel does not necessarily trigger the exclusionary rule.

• To trigger the exclusionary rule, police conduct must be sufficiently deliberate so that exclusion could meaningfully deter it.

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Should Conviction be Overturned? (rather than whether the evidence should be suppressed)

HARMLESS ERROR RULE

• If this piece of evidence had not been admitted, would it make a difference to the outcome?
• If so, you can overturn conviction!
• Prosecutor has burden to prove it would not make a difference

Question 9

PRE-TRIAL PROCEDURE > Grand Jury Proceedings

Answer 9

The Initiation of Charges

INDICTMENT – All federal felony charges must be initiated by indictment by a grand jury unless the defendant waives indictment.

• requires probable cause

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Proceedings before the Grand Jury – The grand jury’s function is merely to determine whether there is probable cause to indict—not to determine guilt or innocence. Accordingly, the grand jury need only hear evidence that supports the prosecutor’s side

• A prosecutor is not required to present exculpatory evidence to a grand jury.
• Grand juries can consider illegaly obtained evidence and hearsay evidence.
• Defendants do not have the right to testify before the grand jury or to call witnesses.
• 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.
• The grand jury does not have to be unanimous

Grounds for dismissing indictment

Deficient indictment

• Fails to charge actual crime
• Omits elements of crime
• Statute of limitations has run
• Improper venue or jurisdiction

Defective grand jury proceedings

• Admission of unqualified grand juror
• Exclusion of grand juror based on race/gender
• Prosecutorial misconduct

Constitutional violation

• Fifth Amendment double jeopardy clause
• Sixth Amendment right to speedy trial
• Fifth/Fourteenth Amendment due process clauses

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Use and Derivative Use Immunity

• A person subpoenaed to testify before a grand jury who has invoked the Fifth Amendment privilege against self-incrimination can be compelled to testify if he/she is granted use and derivative use immunity.

Use and Derivative Use Immunity – prevents the person’s testimony, and any evidence derived from it, from being used against him/her in any way that could lead to a criminal prosecution. But the government may still prosecute the person using evidence obtained from independent sources

• ANY criminal-trial use of such testimony outside the context of a perjury prosecution (EVEN FOR IMPEACHMENT) is a denial of due process.
• Does not protect person from civil liability.

Question 10

PRE-TRIAL PROCEDURE > CONT’D

Answer 10

Competence to Stand Trial– Test: Whether the defendant comprehends the nature of the proceedings against him and can assist his lawyer in defending the case

• If a defendant is competent to stand trial, he is also competent to plead guilty and waive the right to trial.

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Guilty Pleas – To be valid, must knowingly and intelligently waive rights. This is accomplished through plea allocution, where the judge:

• Informs the defendant of (i) his rights and ensures the defendant understands those rights; (ii) the possible sentences; (iii) 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

The defendant is entitled to competent assistance from counsel in the plea bargaining process.

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Bail – Bail is available unless the defendant poses either a flight risk or a danger to the community

• There is a presumption in favor of bail.
• Courts can impose pretrial release conditions on defendants, such as house arrest, avoidance of particular people, or reporting requirements.

Question 11

TRIAL PROCESS

Answer 11

Right to a Jury Trial

• where imprisonment of more than 6 months is possible (multiple offenses CANNOT be aggregated)
• A jury in a federal criminal case must have 12 members and must decide the case unanimous

Jury Selection

• The Sixth Amendment guarantees a criminal defendant the right to be tried by an impartial jury—i.e., a jury pool selected from a fair cross section of the community and an unbiased impaneled jury.
• For-cause challenges (no limit) – A juror whose views would substantially impair their ability to impartially decide the case can be challenged for cause.
• Peremptory challenges (limited) – Can generally be made for any reason, including hunches (can’t be based on race or gender)

Instruction of Lesser included Offenses

• a court should instruct the jury of a lesser included offense if, based on the evidence presented a trial, a rational jury could acquit the defendant of the charged offense, but convict a defendant of the lesser offense.

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Speedy Trial Rights – protect 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:

• Length of the delay;
• reason for the delay;
• Whether the defendant asserted his right to a speedy trial; and
• Risk of prejudice to the defendant

Public Trial Rights

• First Amendment protects the rights of the public to attend public trials.
• Courts have some discretion to close particular proceedings if there is a substantial likelihood of prejudice to the defendant.

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Defendants Trial rights

The Confrontation Clause

• guarantees a Defendant the right to confront the witnesses against him, as well as the right to compulsory process to produce his own witnesses

UNAVAILABLE DECLARANT’s “testimonial” statements are NOT admissible against the Defendant IF:

• Declarant is unavailable; and
• The defendant had no prior OPPORTUNITY to cross-examine the witness. (Crawford Doctrine)

NON-TESTIFYING Co-Defendant’s statements/confessions are NOT admissible against the Defendant (Bruton Doctrine)

• violates the Sixth amendment right to confrontation (no-opportunity to cross-examine)

Defendants OWN statements are always admissible against him (Bruton Doctrine)

• even if the defendant does not testify at trial

Defendant’s right to Compulsory Process to present witnesses

• The defendant has the right to compulsory process to obtain witnesses in his defense
• He also has the right to testify on his own behalf.

Burden of Proof

The prosecution must prove every element of the crime beyond a reasonable doubt

• The government can place the burden of proof with regard to affirmative defenses on the DEFENDANT

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Inconsistent verdicts

• A guilty verdict cannot be challenged on the ground that it is inconsistent with another verdict rendered by the same jury, even when the jury acquits the defendant of an offense that is a predicate offense to an offense for which the same jury finds the defendant guilty.
• This rule, which permits inconsistent verdicts, is also applicable when a defendant is convicted of an offense for which a co-defendant, who is tried at the same time, is acquitted, even though the facts would logically dictate the same verdict for each defendant.
• The rationale behind this rule is that the jury may have reached its decision to acquit through mistake, compromise, or leniency and that its decision should not be disturbed.
• This rule extends to bench as well as jury trials.
• (Note: The defendant may challenge a jury verdict on the grounds that there was insufficient evidence to establish the defendant’s commission of a crime.)

Question 12

RESPONSIBILITIES OF JUDGES, PROSECUTORS, AND DEFENSE COUNSEL

Answer 12

Judges

• 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

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Prosecutors - Four Prosecutorial Duties

• Prosecutorial Misconduct – Prosecutorial misconduct that has a reasonable possibility of affecting the verdict may require a retrial or reversal of a conviction.

1) Brady doctrine—Prosecutors must turn over all material exculpatory evidence to the defense; includes two types of evidence:

• Evidence that tends to show that the defendant is not guilty of the crimes charged
• Evidence that would enable the defense to impeach the credibility of prosecution witnesses
• NONDISCLOSURE of such evidence does NOT violate the defendant’s due process rights UNLESS the failure to disclose causes prejudice against the defendant (i.e., that there is a reasonable probability that the defendant’s conviction or sentence would have been different had the suppressed evidence been disclosed to the defendant)

2) A prosecutor may not KNOWINGLY present FALSE testimony

3) A prosecutor may not contact Defendant (or direct others to contact) a Defendant OUTSIDE the presence of his COUNSEL

4) A prosecutor may not comment on a defendant’s failure 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.

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Defense Counsel

EFFECTIVE Assistance

• 6th Amendment guarantees Defendants EFFECTIVE assistance of counsel at all critical stages of prosecution. If a defendant is denied effective assistance of counsel, his conviction must be reversed because the defendant has already shown that he was prejudiced

EFFECTIVE Assistance - The Strickland test: – 2 prongs to assess whether a defendant was denied effective assistance:

• i) Performance: Did defense counsel’s performance fall below the wide range of reasonable conduct that lawyers might engage in (as long as they were not terrible, D or better)
• ii) Prejudice (causation): There is a reasonable probability that, had counsel performed effectively, the result would have been different.
• ii) Cases that go to trial: reasonable probability that D would not have been convicted if the lawyer had done a proper job
• ii) Guilty pleas: D must show that he would not have pleaded guilty if his lawyer had not given him bad advice or performed ineffectively

Conflicts of Interest

• Joint representation - 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, the judge must get an affirmative waiver)
• If a conflict of interest ACTUALLY affects counsel’s behavior, there is a presumption of prejudice. The defendant is not required to show actual innocence in order to obtain a new trial.

Choice of Counsel - Defendants who can afford retained counsel are entitled to the counsel of their choice. If Defendant is denied, they are entitled to have their conviction reversed. The lawyer MUST be:

• (i) Properly admitted in the jurisdiction;
• (ii) Available for trial; and
• (iii) No conflict or other reason to disqualify the lawyer.

Indigent defendants

• Not entitled to appointment of the lawyer of their choice.
• They are only guaranteed competent assistance (low standard)

Pro Se Defendants

• Defendants are entitled to waive the right to counsel and to represent themselves as long as they do it knowingly and voluntarily. (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.

Question 13

SENTENCING AND POST-TRIAL PROCEDURES >
The Cruel and Unusual Punishment Clause

Answer 13

The Cruel and Unusual Punishment Clause

Capital Punishment (Death) can be imposed in Homicide crimes (victim dies)

• Cannot impose for rape

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
• Defendants who are insane at the time of execution
• Non-homicide crimes

Accomplices to Felony Murder who did not kill, attempt to kill, or intend to kill cannot be sentenced to the death unless the accomplice

• (1) significantly participated in the commission of the underlying felony and
• (2) acted with reckless indifference to human life

cruel or unusual/degrading punishments

• Courts have extended this protection to conditions of confinement (e.g., overcrowding).
• Applying a “three-strikes” law to impose life imprisonment upon the commission of a third felony, even if non-violent, does not violate the prohibition against double jeopardy or cruel and unusual punishment.

Question 14

SENTENCING AND POST-TRIAL PROCEDURES >
Double Jeopordy

Answer 14

Double Jeopardy Clause - Protection against prosecution for the same offense after acquittal/conviction in the same jurisdiction

1) There must be a “First TRIAL” – This protection attaches once the defendant is in jeopardy of a conviction—i.e., when:

• the jury is impaneled and sworn (jury trial) or
• the first witness is sworn in (bench trial).
• But if a criminal charge is dismissed before trial begins, jeopardy does not attach and the defendant can later be prosecuted for the same offense.

2) There must be a final judgment on the MERITS of the first case

• no procedural dismissal, etc.
• Acquittal: The prosecution cannot appeal from an acquittal. Defendant cannot be retried by the same jurisdiction for the same offense.
• Conviction: If the defendant 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.
• no procedural dismissal, jury tampering, defense counsel misconduct, jury deadlocked etc.

ESTOPPEL: if you need one of the elements from Trial #1 to find guilty in Trial #2, and already found not guilty in Trial #1 on the merits, CAN’T be tried.

• D tried for bank robbery where a security guard was shot.
• not guilty on the bank robbery trial
• security guard dies after trial ends
• Felony murder trial CAN’T HAPPEN but involuntary manslaughter can.

Guilty plea to lesser offense – When a conviction of a lesser included offense stems from a guilty plea, the double jeopardy clause bars a subsequent prosecution for the greater offense UNLESS:

• (1) an event necessary to establish the greater offense occurred after the plea was entered or
• (2) the greater offense was charged before the plea was entered.

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No Double Jeoppordy Protections

Different Jurisdictions

• defendant may be charged and convicted for the same type of crime in a federal court under federal law and a state court under state law.
• Likewise, a defendant may be prosecuted by two different states for the same conduct.

(RETRIALS permitted for same offense)

No attachment

• Jury was not impaneled & sworn or
• Judge did not begin to hear evidence

Mistrial

• Requested by defendant or
• Based on manifest necessity

Appeal

• Appellate court discovered trial error & 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 lesser offense

Question 15

SENTENCING AND POST-TRIAL PROCEDURES > The Apprendi Doctrine (Sixth Amendment)

Answer 15

The Apprendi Doctrine (Sixth Amendment)

U.S. Supreme Court held in Apprendi v. New Jersey that Any fact that exposes a criminal defendant to a greater punishment than authorized by the jury’s guilty verdict is an element that must be submitted to and found by the jury.

This holding has been applied to state capital-murder sentencing schemes that require a finding of at least one aggravating circumstance at either the guilt or penalty phase before the death penalty can be imposed. Therefore, a capital-sentencing scheme (as seen here) violates Apprendi if it:

• allows a jury to render an advisory sentence recommending the death penalty without specifically finding an aggravating circumstance and
• permits the judge to then make that finding independently

prohibits judges from enhancing criminal sentences beyond the statutory maximums *based on facts OTHER THAN those decided by the jury beyond a reasonable doubt.