Phillips Review

Question 1

When does double jeopardy attach?

Answer 1

When a jury is empaneled and sworn in, or when the judge swears the first witness in of a bench trial.
DJ also attaches when a guilty plea is accepted.

Question 2

Under Miller v Alabama, when is LWOP inappropriate for a minor?

Answer 2

When LWOP is mandatory for a minor, it violates the 8th Amendment. If LWOP is an option, it does not violate.

Question 3

What must be shown for a 2nd or subsequent habeas petition?

Answer 3

2nd and subsequent petitions are considered if good cause has been shown and it prejudices the petitioner if not heard.
There must be factual prejudice that wasn’t discoverable at trial or a new SCOTUS rule that is retroactive, shown be clear and convincing.

Question 4

What is a 2nd or subsequent habeas petition?

Answer 4

A petition that challenges the same criminal judgment as a previous petition.
If there is a new judgment between 2 habeas petitions, challenging the new judgment is not subsequent (even if same crime)

Question 5

What is the difference between determinate and indeterminate sentencing?

Answer 5

Determinate sentencing is a specific amount of time and eliminates parole, often based on a legislative act. (Ex. 1 year in county jail).
Indeterminate sentencing is a minimum sentence with the release date left open. (Ex. 15 to life)

Question 6

What effect does the Right to a Speedy Trial have on post-trial delays?

Answer 6

The right to speedy trial is not invoked during post-trial delays or sentencing proceedings. The right applies to those presumed innocent, which is gone post-conviction. (Betterman v. Montana)

Question 7

When is the death sentence allowed?

Answer 7

Death sentences are only constitutional for homicide offenses, and only to competent adults.

Question 8

Who does not receive the death penalty?

Answer 8

Mentally disabled (retarded) persons, minors under 18 at the time of the crime, and non-homicide offenders do not receive the death penalty. 
Mental impairment is less than competent to stand trial, but not based on IQ alone.

Question 9

What is required of extrajudicial comments to media?

Answer 9

A prosecutor may not make statements that are substantially likely to materially prejudice the trial.
No out-of-court statements that reasonably known would have a substantial likelihood of influence jury pool or outcome.
But, statements must substantially influence or actually prejudice a grand jury to warrant dismissal.

Question 10

What is the standard for Ineffective Assistance of Counsel?

Answer 10

The Strickland Standard- Counsel’s competence fell below an objective standard of reasonableness, and but for the incompetence there is a reasonable probability of a different outcome of the case.

Question 11

What is Giglio material?

Answer 11

Under Giglio v. US, information about deals made to witnesses must be acknowledged and it goes to the credibility of the testimony for a jury to consider.
This is reversible error.
Giglio places all impeachment evidence under Brady as exculpatory.

Question 12

What are grounds to deny bail?

Answer 12

The purpose of bail is to ensure the accused appears before court and protect the safety of people/community.
The prosecution must establish a flight risk and/or danger to a clear and convincing threshold to deny pre-trial bail. The burden post-trial is on the defendant. If on appeal, must show no flight risk and substantially likely to be reversed.

Question 13

What factors go to determine if bail granted?

Answer 13

Violent crime;
Punishable by LWOP/Death;
Drug Crime of 10 or more years;
Repeat Offender;
Flight Risk;
Witness tampering;
Danger to community;
Capital crime.

Question 14

What factors go to determine flight risk/community standards?

Answer 14

Seriousness of offense;
Punishment faced;
Prior Criminal Record; 
Ties to community;
D's character;
D's finances.

Question 15

What is considered excessive bail for 8th Amendment purposes?

Answer 15

Bail that shocks the conscious, is not fair, or is excessive and cruel or unusual.

Question 16

Three Strikes style schemes…

Answer 16

Three-strikes and like sentencing schemes (habitual offender, etc.) are not per se unconstitutional.
When challenged, they may be justified by the Jx demonstrating a reasonable basis for the scheme and that the enhancement somehow substantially advances the Jx’s goals.

Question 17

When does the right to an attorney apply?

Answer 17

The 6th Amendment Right to Counsel attaches at formal adversarial proceedings and applies at all critical stages thereafter. 
(I Put A Frog In Mom's Sandal)
Initial hearing;
Preliminary hearing;
Arraignment;
Felony;
Interrogation after Miranda;
Misdemeanor with imposition of jail; 
Sentencing hearing

Question 18

When does the 6th Amendment Right to Counsel not apply?

Answer 18

The Right to Counsel does not apply to parole or probation hearings, civil/habeas proceedings, or after the first appeal.

Question 19

What is required under the Federal Speedy Trial Act?

Answer 19

The FSTA requires that charges must be brought within 30 days or arrest or summons, and that trial proceedings must begin within 70 days of indictment or initial appearance.
Exceptions are in place for excludable delays.

Question 20

How do plea agreements and contract law interact?

Answer 20

Plea agreements are contracts and must be entered voluntarily and not under duress by competent persons. Both sides must honor the agreement.

Question 21

What is the significance of Batson v. Kentucky?

Answer 21

The Batson court found that purposeful and deliberate exclusion of people from petit jury based solely on race violates the equal protection clause.
Once a prima facie case is shown of discriminatory strikes, the burden shifts to the striking party to show another, justified reasoning. The court then weighs the balance.

Question 22

What is the result of Crawford v. Washington?

Answer 22

Crawford held that testimonial statements made outside of court violate the Confrontation Clause unless the defendant had/has an opportunity to cross examine.

Question 23

What is testimonial in context of the Confrontation clause?

Answer 23

Testimonial statements are from prior testimony or police interrogations. Also, using the primary purpose test from Davis v. Washington, if the purpose of a statement was to advance a future prosecution the statement is testimonial. The On-going Emergency exception of statements to law enforcement provides that if a statement was made to meet an ongoing emergency is not testimonial.

Question 24

What decisions belong to the defendant and which belong to the attorney?

Answer 24

Trial strategy, when to call witnesses, who to call, which evidence to use, etc. is a decision for counsel.
The acceptance or denial of a plea, and whether to take the stand, and decisions of the defendant.

Question 25

What is required for a court to accept a plea?

Answer 25

The court must ensure a plea is entered knowingly, intelligently, and voluntarily by a competent defendant. The court must find the factual basis for the plea and adhere to Rule 11.

Question 26

What are some major requirements to accept a plea under Rule 11?

Answer 26

The court must address the defendant in open court,
Advise the defendant of rights being waived (jury trial, self-incriminate, confrontation, appeal, etc.),
Advise the nature of the charge and penalties,
Determine factual basis,
Access if coerced,
Set forth any terms of agreement.

Question 27

What is required to impose sentencing enhancements?

Answer 27

Sentence enhancements have a legislative basis. SCOTUS has held that EXCEPT for the fact of prior conviction, ANY FACT that increases the penalty must be submitted to a jury and proven beyond a reasonable doubt.

Question 28

What is selective prosecution?

Answer 28

Prosecutors have discretion whether and what extent to prosecute. When prosecutors violate due process rights of the accused it is a constitutional issue.

Question 29

How can selective prosecution violate due process?

Answer 29

When selective prosecution has discriminatory intent and effect. The accused must show a discriminatory purpose, and a different treatment of similarly situated people of different class.

Question 30

How are harmless error and reversible error distinguished?

Answer 30

A harmless error is a ruling that is held to be mistaken but not so prejudicial to justify reversal.
Reversible error is an error by the court, or bad faith act by party opponent, that deprives the accused of a fair trial.

Question 31

How does appellate review impact habeas relief?

Answer 31

All appellate review must be exhausted for Habeas petition to be considered. Habeas petitions have a 1 year SoL (6 mo for death penalty) from the final appeal.

Question 32

When does the 6th Amendment Right to Speedy Trial apply?

Answer 32

The right to speedy trial attaches at arrest or formal charging and applies to the time between charging and trial. Pre-charging delays do not violate the 6th, but may violate due process if substantial prejudice and intentional to gain an advantage.

Question 33

What factors are considered for a 6th Amendment Speedy Trial violation?

Answer 33

The court will consider the length of the delay, the reason for the delay, when/how/how often defendant asserted his right, and prejudice to the accused.

Question 34

What is the significance of Apprendi v. New Jersey?

Answer 34

In Apprendi, the judge found an aggravating factor by a preponderance of the evidence and applied a sentence enhancement. This was reversed on grounds that any fact increasing the penalty beyond the statutory max must be found by a jury beyond a reasonable doubt.

Question 35

What is the significance of Atkins v. Virginia?

Answer 35

Atkins said that execution of “mentally retarded” is unconstitutional, because mentally disabled are less culpable and retribution relies on the culpability of the offender.
Also, mental impairment is not based on IQ alone but a range of factors, although a lower threshold than competence to stand trial.

Question 36

When do multiple punishments compromise double jeopardy?

Answer 36

Double jeopardy generally prohibits multiple punishments for the same offense. However clear legislative intent can apply different things (drug testing, fines, etc) for the same offense as one punishment. Also civil penalties are not punishments, and dual sovereigns can punish for the same act.

Question 37

How does the 5th Amendment relate to a prosecutors statements to jury?

Answer 37

A defendant has the right not to self-incriminate. If the defendant exercises this right, it can not be used as evidence of guilt in the prosecutor’s argument or the jury instruction.
Pre-arrest silence may be used since the right had not attached then.

Question 38

What is the significance of Irwin v. Dowd?

Answer 38

In Irwin, pre-trial confessions were released to the media prejudicing the jury pool. The court held that denying a change of venue was reversible error.

Question 39

What is the significance of Furman v. Georgia?

Answer 39

In Furman, the court held that cruel and unusual punishment if 1) unusually severe, 2) strong possibility of arbitrary infliction, 3) rejected by contemporary society, and 4) no more effective than a less severe punishment.
In effect, Furman left it to states to have death penalties that met the above concerns.

Question 40

What is the significance of Blockburger v. US?

Answer 40

Blockburger developed the test for double jeopardy and lesser included offenses, the same elements or same evidence test.
If each offense contains an element the other does not, the two are separate for double jeopardy.
If one offense contains all the elements of a higher offense but no others, it is a lesser included.

Question 41

When may an attorney properly decline a case?

Answer 41

When it will result in a violation of the rules of professional conduct;
When physical/mental condition impairs the lawyers ability;
When client persists in criminal or fraudulent conduct or uses lawyer to further such;
When there is a fundamental disagreement or repugnant acts;
When the client fails to fulfill obligation to the lawyer after notice;
Unreasonable burden on the lawyer;
Other good cause.

Question 42

What is the SoL with regard to Habeas relief?

Answer 42

Generally there is a 1 year SoL on habeas petitions, reduced to 6 months for death sentences. The SoL runs from final appeal denial or last chance to appeal. If based on new evidence, the SoL runs from when the evidence could have been discovered; if based on new rule, runs from when new rule declared retroactive.

Question 43

When does the SoL toll?

Answer 43

Tolling is an effective pause on the statute of limitations. For habeas relief, the SoL may toll during the appeals process.(???)
Equitable tolling provides where the petitioner was diligently pursuing rights AND extraordinary circumstances prevented filing.

Question 44

What is the difference in federal and state grand juries?

Answer 44

Federal grand juries are required by the Constitution for capital or infamous crimes. This is not extended by the 14th Amendment. Federal grand juries investigate and accuse, consist of 16-23 people, 12 of which must agree to indict.

Question 45

How are methods of execution limited by the constitution?

Answer 45

The method of execution must be:
Not so severe to be degrading to dignity of the human being;
Not arbitrarily inflicted;
Not unacceptable to contemporary society;
Not excessive based on the evolving standards of decency.

Question 46

What is required to challenge a method of execution?

Answer 46

1) The method creates an unacceptable risk of severe pain, AND
2) The is a known and alternative method available.

Question 47

What is the significance of Brady v. Maryland?

Answer 47

In Brady, the state withheld evidence that another person committed the crime.
The court found this to violate due process and that material evidence favorable to the defendant must be disclosed.

Question 48

Bills of Attainder vs. Ex Post Facto laws

Answer 48

Bills of Attainder are laws that punish people after the fact for their actions, targeting specific people or groups.

Ex Post Facto is a law that punish or increase punishment for crimes not punishable at the time committed, changing the consequences of an act for everyone.

Question 49

What is required and not required in grand jury proceedings?

Answer 49

Grand juries investigate and accuse. Grand jury is exparte and the right to counsel and confrontation does not apply.

Question 50

What is the significance of Solem v. Helm?

Answer 50

The Solem court held that the prohibition on cruel and unusual requires the penalty to be proportionate to the crime, based on factors:
Gravity of offense & harshness of penalty,
Compare sentences for same crime in other Jx,
Compare sentences on other criminals in same Jx.

Question 51

What is the significance of Arizona v. Youngblood?

Answer 51

In Youngblood, law enforcement did not preserve evidence. The court held that the good faith loss or destruction of evidence did not violate due process.

Question 52

When may a defendant proceed without counsel (pro se)?

Answer 52

The right to proceed without counsel must be voluntarily, knowingly, and intelligently made. This is a different standard than being competent to stand trial (rational and factual understanding of proceedings and ability to assist with defense). [Indiana v. Edwards]

Question 53

Are civil detentions unconstitutional?

Answer 53

Civil detention is not unconstitutional. Sexual predators, psych patients, material witnesses, those subject to deportation may be detained without bail.

If civil commitment is based on a narrow and specific, non-punative purpose, it does not violate due process (Kansas v Hendricks)

Question 54

What is a Bruton problem?

Answer 54

Because defendants have a right of confrontation, when one person’s confession implicates the defendant it creates a confrontation issue. The solution is to sever the trials, a complete redaction of the confession with no hint at the defendant, or to not use the confession.

Question 55

Is there a constitutional right to a plea agreement?

Answer 55

No. Prosecutor’s have discretion (if non discriminatory) in plea bargaining. Plea bargaining does not violate the constitution but it is not a right. Plea bargains may be conditioned (on testimony, co-defendant plea, etc.).

Question 56

What is a mixed habeas petition?

Answer 56

Habeas petition may claim more than one claim for relief. When some claims have not exhausted all appeals, any claims in the habeas petition are procedurally dismissed.
The petitioner may drop unexhausted claims and continue, or go back to appellate level to exhaust claims (without tolling).

Question 57

What is the significance of US v Awadallah?

Answer 57

In Awadallah, the government detained a witness for grand jury proceedings, where he perjured self. The court held that holding a material witness was not an unreasonable seizure because the purpose wasn’t to implicate the detainee.
Detention of material witnesses is not unconstitutional.

Question 58

What is required for a knowing and voluntary guilty plea?

Answer 58

Voluntary- no force, threats, promises (outside of agreement)
Knowing- Aware of charges against, penalties faced, and rights waived

Question 59

What rights do indigent have in presenting defenses?

Answer 59

Indigents have the absolute right to counsel (Gideon) when felony or actual imprisonment.
Indigents have a limited right to government provided experts and investigators, limited to when one with means would reasonably have hired.

Question 60

How do federal sentencing guidelines function?

Answer 60

Sentencing guidelines are advisory, the court is required to consult with the guidelines but may vary. 
The guidelines are presumed reasonable, and sentence can be applied based on:
Nature of offense and criminal history, 
Need for the sentence, 
Sentences available, 
Guidelines, 
Policy statements,
Avoid unwarranted sentence disparity,
Provide restitution.