MIRANDA, 5th, 6th, and MISC Flashcards
14th amendment “Involuntary Test”
police violate due process when they secure involuntary confessions from Ds
- voluntariness factors: suspects age, education, experience with the system and manner of police interrogation
- government coercion
6th Amendment (violation occurs when…)(2)
Violation occurs when:
- critical stage- formally charged
- gov agent interrogates the D
CAVEATS:
- crime specific (ex. arraigned on burglary, can ask about suspected hit and run)
- D must request
*if violated, only used for IMPEACHMENT
Miranda and 5th amendment (rule)
Police violate D’s right against self-incrimination
*not crime specific
Miranda Warnings (4)
used when in CUSTODY and INTERROGATION
- right to remain silent
- anything you say will be used against you
- right to an attorney
- if you can’t afford, one provided for you
*prophylactic- protect against risk of coercion
Custody (miranda)
movement is limited to an extent that creates the same inherently coercive pressures as full stationhouse arrest
*objective test based on police behaviors
Interrogation (miranda) (3)
- express questioning or words or actions
- police know or should know
- likely to elicit incriminating response
Spontaneous Utterances (miranda)
don’t not apply when D offers not in response to interrogation
(ex. being fingerprinted, “getting a lawyer is a waste of time”
Miranda Waiver by person charged (3)
- knowingly
- intelligent
- voluntary
- silence/shrugging- NOT INFERRED
- if warnings given, D answers- INFERRED
- D need not be told of all subjs to be covered during interrogation
- police can fail to inform D that 3rd p has retained a lawyer for D
Right to terminate interrogation (miranda) (rule)
D may terminate custodial interrogation at any time by invoking either the right to remain silent or the right to counsel
*must be CLEAR and EXPLICIT
Right to Remain silent
if D invokes right, police must honor and cease interrogation
(may reinitiate if they wait a significant period of time and first obtain miranda waiver)
Right to Counsel (3)
if D invokes right to counsel, police must honor and cease interrogation, thereafter police can only interrogate if:
- counsel is present
- D reinitiates interrogation
- D is released from custody for 14 days
*NOT CRIME SPECIFIC, bars all other questions pertaining to crimes
Uses for Miranda Defective statements (3)
- impeach D (not 3rd p witnesses)
- discovery of physical evidence or witnesses (fruit of poisonous tree does not apply to miranda)
- “public safety exception” (ex. arrested in store as suspect of armed robbery, ask D where gun is–> both statement and gun admissible
6th amendment (pretrial ID)
once a critical stage is reached, D has the right to presence of an attorney at any “line up” or “show up”
*no right at “photo array”
14th amendment right to due process (pretrial ID) (2)
D not faced with a “critical stage” can attack an identification as being so prejudicial as to violate due process if the identification is:
1.unnecessarily suggestive
AND
2. creates substantial likelihood of misidentification
- even if “unnecc sugg”, it will not be excluded if reliable “lynchpin of the analysis”
- *ct will not exclude ID unless unduly suggestive procedure arrange by police
Remedy involving 6th or 14th violation (in court ID) (exception)
the prosecution can use an IN COURT ID if it shows that there was an “independent source” for the ID, based on factors such as”
- witness opportunity to observe at crime scene
2.certainty of witness’ ID
AND - specificity of desc given to police
Bail (crim pro) (2)
- refusal to grant bail or the setting of excessive bail can be appealed immediately
- preventive detention is constitutional and permissible if procedural protections such as a hearing are provided
Grand Juries (crim pro)
- only FED must use
- many states do but not required
- many allow charge by information - exclusionary rule does not apply
- conducted in secret
- accused has right to appear
- no right to have counsel
- no right to have witness testify
Right to unbiased judge (6th) (trial rights)
due process will be violated if it is shown that the judge has a FINANCIAL STAKE in the outcome or ACTUAL MALICE toward D
Right to Jury Trial (6th) (trial rights)(3)
- when possible sentence > 6 months
- NO constitutional right to 12, minimum is 6
- trials do not have to be UNANIMOUS
- 10-2, 9-3 NOT LIKELY 8-4
- 6 member juries must be UNANIMOUS
Jury Selection (6th) (trial rights) (3)
- “venire”- right to selection from a representative cross section of the community
- no right to PROPORTION of all groups on D “petit jury”
- UNCONSTITUTIONAL to exercise preemptory challenges to exclude jurors solely on the account of RACE and GENDER
Right to Effective assistance of counsel (6th) (trial rights)(2)
D must show:
- counsels performance was deficient and that
- deficiency caused prejudice
- usually denied
- *applies to trials and plea bargains
Guilty plea
waiver of D’s right to trial
Plea Bargaining (3)
- supreme court uses “K theory”
- terms to be reveal on record
- both D and government held to deal
Plea (crim pro) (3)
- voluntary
- intelligent
- judge must address D personally on the record about:
-nature of charges
AND
-consequences of pleading guilty
Plea withdrawal (crim pro) (2)
- if there is a defect in the plea-taking colloquy or
- if the prosecutor fails to abide by the plea agreement
*if a plea deemed invalid, its for above reasons
Death Penalty (crim pro)
any statute that doesn’t give D a chance to present MITIGATING FACTS or limits admissibility of such information is UNCONSTIT
- can be no automatic category for imposition of
- JURY (not judge) can determine “aggravating factors”
Death Penalty “categorical limits”
- cannot be imposed for any NON HOMICIDE offense against an individual
- cannot be imposed for FELONY MURDER where D neither killed nor intended death of victim
- minors at time of capital crime cannot receive
- mentally disabled cannot be executed
- execution of insane barred
Double Jeopardy (when attaches)(3)
- in jury trial when jury is empaneled
- in bench trial when 1st witness sworn
- guilty plea when court unconditionally accepts plea
* doesn’t attach in civil cases
Exceptions permitting RETRIAL after Jeopardy attached (3)
- hung jury (failure to reach guilty-not guilty)
- manifest necessity
(ex. D suffers apendicitis and jury is dismissed) - successful appeal
- retrial NOT permitted if reversal was baed on insufficiency of the evidence
Double Jeopardy
“same offense”
not the same if each requires proof of an element that the other does not
(ex. hit child with car and flee- Manslaughter and Leaving the scene)
Greater-Lesser Included offenses (double jeopardy) (2)
- attachment of jeopardy for a GREATER bars trial for a LESSER
(ex. robbery conviction bars larceny pros) - attachment of jeopardy for a LESSER bars trial for a GREATER
(ex. larceny conviction bars robbery pros)
EXCEPTION:
-prosecution for murder is permitted if victim dies AFTER prior attachment for battery
Separate Sovereigns (double jeopardy)
can prosecute D for same offenses
- states- SEPARATE
- US gov and states- SEPARATE
- state and munic -NOT SEPARATE
5th Self- incrimination Privilege (who asserts?) (3)
- natural person
- asked questions under oath
- entitled to assert in ANY crim, civil, trial, or hearing
- one must assert the privilege and not answer, otherwise WAIVED
- SCOPE: only protects TESTIMONY
Ds Silence (5th self incrimination)(3)
- unconstitutional for prosecutor in a trial to comment on Ds failure to testify
- prosecutor may not comment on Ds silence after being arrested and informed of Miranda rights
- at trial, D may ask court for JURY INSTRUCTION that tells the just they may draw no adverse inference from his failure to testify
Grant of immunity (5th Self incrimination)
witness may be compelled to answer incriminating question if granted immunity from prosecution
*no privilege if S o L has run
“Use and Derivative Immunity” (5th self incrim)
guarantees both that the witness’ testimony and evidence secured by means of the testimony will not be used against the witness
*witness still may be prosecuted if gov shows that the evidence to be used against them was derived from a source INDEPENDENT of the immunized testimony or obtained BEFORE grant of immunity
