MIRANDA, 5th, 6th, and MISC

Question 1

14th amendment “Involuntary Test”

Answer 1

police violate due process when they secure involuntary confessions from Ds

1. voluntariness factors: suspects age, education, experience with the system and manner of police interrogation
2. government coercion

Question 2

6th Amendment (violation occurs when…)(2)

Answer 2

Violation occurs when:

1. critical stage- formally charged
2. gov agent interrogates the D

CAVEATS:

1. crime specific (ex. arraigned on burglary, can ask about suspected hit and run)
2. D must request

*if violated, only used for IMPEACHMENT

Question 3

Miranda and 5th amendment (rule)

Answer 3

Police violate D’s right against self-incrimination

*not crime specific

Question 4

Miranda Warnings (4)

Answer 4

used when in CUSTODY and INTERROGATION

1. right to remain silent
2. anything you say will be used against you
3. right to an attorney
4. if you can’t afford, one provided for you

*prophylactic- protect against risk of coercion

Question 5

Custody (miranda)

Answer 5

movement is limited to an extent that creates the same inherently coercive pressures as full stationhouse arrest

*objective test based on police behaviors

Question 6

Interrogation (miranda) (3)

Answer 6

1. express questioning or words or actions
2. police know or should know
3. likely to elicit incriminating response

Question 7

Spontaneous Utterances (miranda)

Answer 7

don’t not apply when D offers not in response to interrogation

(ex. being fingerprinted, “getting a lawyer is a waste of time”

Question 8

Miranda Waiver by person charged (3)

Answer 8

1. knowingly
2. intelligent
3. 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

Question 9

Right to terminate interrogation (miranda) (rule)

Answer 9

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

Question 10

Right to Remain silent

Answer 10

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)

Question 11

Right to Counsel (3)

Answer 11

if D invokes right to counsel, police must honor and cease interrogation, thereafter police can only interrogate if:

1. counsel is present
2. D reinitiates interrogation
3. D is released from custody for 14 days

*NOT CRIME SPECIFIC, bars all other questions pertaining to crimes

Question 12

Uses for Miranda Defective statements (3)

Answer 12

1. impeach D (not 3rd p witnesses)
2. discovery of physical evidence or witnesses (fruit of poisonous tree does not apply to miranda)
3. “public safety exception” (ex. arrested in store as suspect of armed robbery, ask D where gun is–> both statement and gun admissible

Question 13

6th amendment (pretrial ID)

Answer 13

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”

Question 14

14th amendment right to due process (pretrial ID) (2)

Answer 14

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

Question 15

Remedy involving 6th or 14th violation (in court ID) (exception)

Answer 15

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”

1. witness opportunity to observe at crime scene
   2.certainty of witness’ ID
   AND
2. specificity of desc given to police

Question 16

Bail (crim pro) (2)

Answer 16

1. refusal to grant bail or the setting of excessive bail can be appealed immediately
2. preventive detention is constitutional and permissible if procedural protections such as a hearing are provided

Question 17

Grand Juries (crim pro)

Answer 17

1. only FED must use
   - many states do but not required
   - many allow charge by information
2. exclusionary rule does not apply
3. conducted in secret
   - accused has right to appear
   - no right to have counsel
   - no right to have witness testify

Question 18

Right to unbiased judge (6th) (trial rights)

Answer 18

due process will be violated if it is shown that the judge has a FINANCIAL STAKE in the outcome or ACTUAL MALICE toward D

Question 19

Right to Jury Trial (6th) (trial rights)(3)

Answer 19

1. when possible sentence > 6 months
2. NO constitutional right to 12, minimum is 6
3. trials do not have to be UNANIMOUS
   - 10-2, 9-3 NOT LIKELY 8-4
   - 6 member juries must be UNANIMOUS

Question 20

Jury Selection (6th) (trial rights) (3)

Answer 20

1. “venire”- right to selection from a representative cross section of the community
2. no right to PROPORTION of all groups on D “petit jury”
3. UNCONSTITUTIONAL to exercise preemptory challenges to exclude jurors solely on the account of RACE and GENDER

Question 21

Right to Effective assistance of counsel (6th) (trial rights)(2)

Answer 21

D must show:

1. counsels performance was deficient and that
2. deficiency caused prejudice

• usually denied
• *applies to trials and plea bargains

Question 22

Guilty plea

Answer 22

waiver of D’s right to trial

Question 23

Plea Bargaining (3)

Answer 23

1. supreme court uses “K theory”
2. terms to be reveal on record
3. both D and government held to deal

Question 24

Plea (crim pro) (3)

Answer 24

1. voluntary
2. intelligent
3. judge must address D personally on the record about:

-nature of charges
AND
-consequences of pleading guilty

Question 25

Plea withdrawal (crim pro) (2)

Answer 25

1. if there is a defect in the plea-taking colloquy or
2. if the prosecutor fails to abide by the plea agreement

*if a plea deemed invalid, its for above reasons

Question 26

Death Penalty (crim pro)

Answer 26

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”

Question 27

Death Penalty “categorical limits”

Answer 27

1. cannot be imposed for any NON HOMICIDE offense against an individual
2. cannot be imposed for FELONY MURDER where D neither killed nor intended death of victim
3. minors at time of capital crime cannot receive
4. mentally disabled cannot be executed
5. execution of insane barred

Question 28

Double Jeopardy (when attaches)(3)

Answer 28

1. in jury trial when jury is empaneled
2. in bench trial when 1st witness sworn
3. guilty plea when court unconditionally accepts plea
   * doesn’t attach in civil cases

Question 29

Exceptions permitting RETRIAL after Jeopardy attached (3)

Answer 29

1. hung jury (failure to reach guilty-not guilty)
2. manifest necessity
   (ex. D suffers apendicitis and jury is dismissed)
3. successful appeal
   - retrial NOT permitted if reversal was baed on insufficiency of the evidence

Question 30

Double Jeopardy

“same offense”

Answer 30

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)

Question 31

Greater-Lesser Included offenses (double jeopardy) (2)

Answer 31

1. attachment of jeopardy for a GREATER bars trial for a LESSER
   (ex. robbery conviction bars larceny pros)
2. 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

Question 32

Separate Sovereigns (double jeopardy)

Answer 32

can prosecute D for same offenses

• states- SEPARATE
• US gov and states- SEPARATE
• state and munic -NOT SEPARATE

Question 33

5th Self- incrimination Privilege (who asserts?) (3)

Answer 33

1. natural person
2. asked questions under oath
3. entitled to assert in ANY crim, civil, trial, or hearing

• one must assert the privilege and not answer, otherwise WAIVED
• SCOPE: only protects TESTIMONY

Question 34

Ds Silence (5th self incrimination)(3)

Answer 34

1. unconstitutional for prosecutor in a trial to comment on Ds failure to testify
2. prosecutor may not comment on Ds silence after being arrested and informed of Miranda rights
3. at trial, D may ask court for JURY INSTRUCTION that tells the just they may draw no adverse inference from his failure to testify

Question 35

Grant of immunity (5th Self incrimination)

Answer 35

witness may be compelled to answer incriminating question if granted immunity from prosecution

*no privilege if S o L has run

Question 36

“Use and Derivative Immunity” (5th self incrim)

Answer 36

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