Pre Trial Procedure Flashcards
(1) What is the two-prong test to determine the admissibility of a pre- or post-indictment corporeal or non-corporeal identification procedure?
(2) What five factors must be considered in that determination?
(1) The defendant must demonstrate that
(i) the procedure was impermissibly suggestive and
(ii) there was a substantial likelihood of misidentification.
(2) The court must consider:
(i) The witness’s opportunity to view the defendant at the time of the crime;
(ii) The witness’s degree of attention at the time of the crime;
(iii) The accuracy of the witness’s description of the defendant prior to the identification;
(iv) The level of certainty at the time of the identification; and
(v) The length of time between the crime and the identification.
What is the plain error doctrine?
A defendant who has failed to preserve a claim of error in district court is still entitled to appellate relief when:
(i) The district court committed error under the law in effect at the time the appeal is heard;
(ii) The error is obvious under that law; and
(iii) The error affected the defendant’s substantial rights.
How is a prima facie case for absence of a representative cross-section in a jury established?
By showing that:
(i) The group allegedly excluded is a “distinctive” group in the community;
(ii) The group was not fairly represented in the venire from which the jury was chosen; and
(iii) The underrepresentation resulted from a systematic exclusion of the group in the jury-selection process.
What is the court required to find in order to accept a criminal defendant’s guilty plea?
The judge must determine that the plea is both intelligent and voluntary.
Voluntary: The plea did not result from force or improper threats or from promises other than those contained in the plea agreement.
Intelligent: The defendant knows and understands (i) the nature of the charges and their essential elements, (ii) the consequences of the plea, and (iii) the rights that the defendant is waiving.
What is the three-prong test to determine whether a peremptory challenge has been exercised based on race in violation of the Equal Protection Clause of the Fourteenth Amendment (i.e., Batson test)?
The test requires that:
(i) The moving party establishes a prima facie case of discrimination;
(ii) The party who exercised the challenge provides a race-neutral explanation for the strike;
(iii) The moving party carries her burden of proving that the other party’s proffered reason was pretextual and that the strike was indeed motivated by purposeful discrimination.
Note: The ultimate burden of persuasion regarding racial motivation rests with the opponent of the strike.
When are presumptions constitutionally permitted in criminal trials, and when are they unconstitutional?
A permissive presumption regarding an element of an offense does not violate due process unless the presumption is irrational (i.e., it is more likely than not to flow from the proven fact on which it depends).
A mandatory presumption regarding an element of an offense violates the due-process requirement.
What are (1) transactional immunity, and (2) use and derivative use immunity?
(1) “Transactional” (i.e., “blanket” or “total”) immunity fully protects a witness from future prosecution for crimes related to her testimony.
(2) “Use and derivative-use” immunity only precludes the prosecution from using the witness’s own testimony, or any evidence derived from the testimony, against the witness.
Note: “Use and derivative-use” immunity is all that is constitutionally required to compel the testimony of a witness, and testimony encouraged by a promise of immunity is considered coerced and involuntary. Therefore, the testimony cannot be used as substantive evidence or for impeachment purposes.
When does the prosecutor not mandated to bring Brady material?
In United States v. Williams, the U.S. Supreme Court held that a prosecutor is not required to present exculpatory evidence to a grand jury. That is because the grand jury’s function is merely to determine whether enough evidence exists to bring a criminal charge—not to determine guilt or innocence. Accordingly, the grand jury need only hear evidence that supports the prosecutor’s side.
