MBE - Criminal Procedure - Arrest > Punishment

Question 1

When does arrest occur?

Answer 1

• when police take someone into custody against her will for prosecution or interrogation
• de facto arrest: police compel someone to come to police station for questioning and fingerprinting
• requires probable cause

Question 2

When is arrest warrant required?

Answer 2

• No warrant needed to arrest in public place
• –Felonies: must have probable cause to believe person committed a felony
• –Misdemeanors: must be committed in officer’s presence
• Need warrant to arrest someone in his home
• Need arrest warrant and search warrant to arrest in home of 3rd party

Question 3

Three Constitutional challenges to exclude a confession

Answer 3

(1) 14th Amendment Due Process
(2) 6th Amendment Right to Counsel
(3) 5th Amendment Miranda Doctrine

Question 4

14th Amendment Due Process Clause & Confessions

Answer 4

• Confession must be involuntary (police coercion overbears suspect’s will)
• MD: otherwise voluntary confession suppressed if product of promises or inducements

Question 5

6th Amendment Right to Counsel

Answer 5

• Attaches when D is formally charged + applies at all “critical stages” of prosecution
• Critical Stages: arraignment, probable cause hearings, police interrogation
• Right is OFFENSE SEPCIFIC: only applies to formally charged crimes.

Question 6

What is a Violation of 6th Amendment Right to Counsel?

Answer 6

(1) incriminating statements (2) deliberately elicited (3) by law enforcement (4) about charged offenses (5) and D did not knowingly, intelligently, and voluntarily waive his right to have attorney present.

Question 7

Miranda Doctrine - 4 Core Warnings

Answer 7

(1) the right to remain silent
(2) anything you say can and will be used against you in a court of law
(3) the right to an attorney
(4) if you cannot afford one, and attorney will be appointed for you.

Question 8

When is Miranda necessary?

Answer 8

(1) Custody: if atmosphere, viewed objectively, is characterized by police domination & coercion such that freedom of action is seriously limited
(2) Interrogation: conduct police knew or should have known was likely to elicit an incriminating response.
* Public Safety Exception: custodial interrogation for public safety does not warrant Miranda warnings and incriminating statements are admissible

Question 9

Miranda Waiver

Answer 9

(1) Knowing and intelligent: Suspect understands nature of his rights and the consequences of abandoning them.
(2) Voluntary: if it is not product of police coercion
- -Waiver need not be express, may be implied by conduct
- -Prosecution bears burden of proof of waiver

Question 10

Invoking Miranda Rights

Answer 10

(1) Right to Remain Silent: must be unambiguous + police must scrupulously honor and wait for significant time before reinitiating questioning
(2) Right to Counsel: must be sufficiently clear + all interrogation on all topics must cease unless initiated by suspect.
- -Expires 14 days after suspect is released from custody

Question 11

Miranda & Evidentiary Exclusion

Answer 11

physical evidence that results from voluntary statements made in violation of Miranda are admissible.

Question 12

3 types of Pre-Trial Identifications

Answer 12

(1) Line-ups:
(2) Show-ups (one-on-one between witness & suspect)
(3) photo arrays

Question 13

2 substantive challenges to pre-trial IDs

Answer 13

(1) Denial of Right to Counsel
- –No 5th Amendment right under Miranda for pretrial identification
- –6th Amendment: right to counsel of line-ups and show-ups that take place after formal charging.
(2) Violation of Due Process
- –so unnecessarily suggestive it creates very substantial likelihood of irreparable misidentification
- –Courts must weigh reliability of suggestive identification v. corrupting effect.
- MD: Once D establishes identification procedure was flawed the burden shifts to state to prove by clear and convincing evidence that reliability outweighs corrupting effect

Question 14

Remedies for Unconstitutional Pre-Trial Identification

Answer 14

–Exclusion of witness’ in court identification
–May still be allowed IF prosecution can prove it is based on observations of suspect OTHER THAN the unconstitutional show-up, line-up, or photo array
Factors: (1) Witness opportunity to view D at crime scene; (2)Specificity of description given to police; (3) Certainty of witness’ ID

Question 15

Pretrial Detention

Answer 15

• government needs probable cause
• Detention hearings (Gernstein hearings): hearing to determine probable cause
• –unnecessary if grand jury has issued an indictment or magistrate has issued an arrest warrant.
• First Appearance: soon after arrest D must be brought before magistrate (MD - District court Commissioner) who: (1) advises of rights; (2) sets bail; (3) appoints counsel, if necessary
• –Bail decisions are immediately appealable

Question 16

Rights at Trial

Answer 16

(1) Evidentiary Disclosure
(2) Unbiased Judges
(3) Juries
(4) Confrontation
(5) Right to Effective Assistance of Counsel

Question 17

Right to Evidentiary Disclosure

Answer 17

• Prosecutor must disclose to criminal D all material, exculpatory evidence (Brady rule)
• MD: state obliged to disclose, without request: (1) all material exculpatory evidence; (2) material subject to a motion to suppress; including (a) statements made by D (b) pretrial identifications

Question 18

Right to Jury

Answer 18

• All criminal D’s have right to fair and impartial jury if max sentence > 6 months
• minimum 6 jurors (unanimity required)
• 12 person verdicts need not be unanimous (MD - requires 12 unanimous)
• Cross Sectional Requirement: pool of jurors must represent cross section of community.
• Peremptory challenges: both sides may exclude jurors without stating reasons, but cannot be used to exclude based on gender or race

Question 19

Confrontation Clause

Answer 19

6th amendment right to confront adverse witnesses. Does not apply where face-to-face confrontation would contravene important public policy concerns

Question 20

Right to Effective Assistance of Counsel (2-prong test)

Answer 20

(1) Deficiency: counsel’s performance fell below an objective standard of reasonableness
(2) Prejudice: But for deficiency the outcome of trial would have been different (i.e. must be claim D is not guilty)

Question 21

Guilty Pleas & Plea Bargaining

Answer 21

• Valid Plea: must be voluntary and intelligent
• Colloquy: before accepting plea, judge must conduct colloquy in open court on the record addressing:
• -The nature of the charges, including elements of charged offense
• -The consequences of the plea (waiver of trial, etc.)

Question 22

Withdrawing Plea After Sentencing

Answer 22

Only allowable if:

(1) plea is involuntary due to defect in plea taking colloquy; OR
(2) there is a jurisdictional defect; OR
(3) D prevails on claim of ineffective assistance of counsel; OR
(4) prosecutor fails to fulfill his part of bargain.

Question 23

8th Amendment Cruel & Unusual Punishment - Death Penalty

Answer 23

(1) only for murder;
(2) can’t be statutorily automatic;
(3) sentencing jurors must consider mitigating evidence;
(4) Can’t be used against (a) under 18 at crime; (b) mentally retarded; (c) presently insane
MD: D has automatic right of appeal to Court of Appeals of sentence and determination of guilt

Question 24

Fifth Amendment Privileges Against Compelled Testimony (Taking the Fifth)

Answer 24

(1) Any natural person can use (if response might furnish link in chain to his prosecution)
(2) In any proceeding in which individual testifies under oath
(3) If not used first time it is waived.
- -D waives 5th as to cross-examination by taking the stand

Question 25

Scope of “Taking the Fifth”:

Answer 25

• Testimonial privilege, therefore does not apply to state’s use of our bodies
• Disallows negative prosecutorial comment on decision not to testify and invocation of right ot silence or counsel

Question 26

When Privilege Does Not Apply

Answer 26

(1) Grant of immunity: where prosecution grant “use and derivative use” immunity which bars government from using testimony or anything derived from it to convict you
(2) Statute of Limitations: If SoL has run on underlying crime
(3) D takes stand in trial - waived as to cross examination

Question 27

Attachment of Double Jeopardy

Answer 27

(1) Jury trial: when jury is sworn
(2) Bench trial: when first witness is sworn
(3) Guilty plea: when court accepts plea unconditionally

Question 28

Double Jeopardy Requirements

Answer 28

(1) Same Offense: Offenses are not the same if they each contain an element the other does not
(2) Same Sovereign: state and municipality are the same
- -4 Exceptions that permit retrial: (a) hung jury; (b) mistrial for manifest necessity; (c) a successful appeal unless reversal based on insufficient evidence; (d) breach of plea agreement by D.