Pretrial and Trial

Question 1

Exclusionary Rule - Scope of Rule (Rule; List)

Answer 1

Doctrine which prohibits the introduction of evidence obtained in violation of the aforementioned constitutional rights. Both the UNLAWFULLY OBTAINED EVIDENCE & EVIDENCE OBTAINED FROM EXPLOITATION OF THE UNLAWFULLY OBTAINED EVIDENCE (“Fruit of the Poisonous Tree”) will be inadmissible

Exceptions to the “Fruit of the Poisonous Tree” Doctrine

(a) Fruits derived from violations of Miranda
(b) Fruits obtained from an INDEPENDENT SOURCE
(c) An INTERVENING ACT OF FREE WILL
(d) INEVITABLE DISCOVERY
(e) VIOLATIONS OF KNOCK AND ANNOUNCE

Question 2

Exclusionary Rule - Limitations

Answer 2

The prior rule of exclusion is inapplicable to

(1) Grand Juries & Parole Revocation Proceedings
(2) Situations where the police arrest someone erroneously, but in good faith
(3) Situations where the evidence is used to IMPEACH D CREDIBILITY if he takes the stand at trial
(4) Violations of the Knock and Announce Rule

Question 3

Exclusionary Rule - Harmless Error Test

Answer 3

If illegal evidence is admitted a resulting conviction WILL BE OVERTURNED ON APPEAL

UNLESS the government can show that the illegal evidence was HARMLESS

Question 4

Preliminary Hearing to Determine Probable Cause to Detain (Procedure)

Answer 4

If

(1) Probable cause has NOT been determined &
(2) There are SIGNIFICANT CONSTRAINTS ON Ds LIBERTY

Then

A hearing to determine probable cause must be held WITHIN A REASONABLE TIME. Hearing is informal and non-adversarial.

Question 5

Bail

Answer 5

Bail can be set no higher than is necessary to assure Ds appearance at trial. Denial of bail is ok if D would pose a danger to society or are a significant flight risk

***Note: Either outright denial or extremely high bails are almost never found unconstitutional

Question 6

Grand Juries (Rules)

Answer 6

Rules

1) D has NO RIGHT

(a) to notice that a grand jury is considering an indictment against them
(b) to be present or confront witnesses
(c) to introduce evidence

(2) D has NO RIGHT

(a) TO RECEIVE MIRANDA WARNINGS or
(b) HAVE AN ATTORNEY PRESENT

(3) Grand jury CAN base indictment on INADMISSIBLE EVIDENCE
(4) D has NO RIGHT to CHALLENGE SUBPOENA
(5) If Minorities are EXCLUDED from the Grand Jury, Indictment will be overturned W/O REGARD to harmless error

Question 7

Speedy Trial 6th Amendment

Answer 7

Violation is judged based on the following factors

(1) Reason for Delay
(2) Length of Delay
(3) Whether D asserted his right to a speedy trial
(4) Prejudice to the D

Question 8

Speedy Trial 6th Amendment (When Right Attaches)

Answer 8

Right to a speedy trial does not attach until D has been ARRESTED OR CHARGED

***Note: (1) See if D has been arrested or charged (2) Weigh the 4 factors

Question 9

Duty to Disclose Exculpatory Information (Duty ; Remedy)

Answer 9

GOVERNMENT has a duty to disclose MATERIAL EXCULPATORY EVIDENCE to D. Failure to do so is a violation of the Due Process Clause

Remedy

Grounds for reversing conviction if D can prove

(1) The evidence is FAVORABLE
(2) PREJUDICE has resulted

Question 10

Duty to Disclose Exculpatory Evidence (Alibi ; Insanity)

Answer 10

If an alibi defense is going to be used, D must

(1) Notify the prosecution
(2) Provide the prosecution a list of witnesses

The prosecution, if turn, must give D a list of witnesses it will use to rebut the alibi defense

Insanity

If an insanity defense is going to be used, D must only NOTIFY THE PROSECUTION

A successful insanity defense open D up to confinement within a mental institution LONGER THAN THE MAXIMUM SENTENCE

Question 11

Competency to Stand Trial (Definition ; Due Process Std.

Answer 11

Incompetency to stand trial is NOT a defense to the crime, but rather A BAR TO TRIAL. Reflects Ds MENTAL CONDITION @ THE TIME OF TRIAL, meaning that D can be tried later if competency is regained

Due Process Standard

D is incompetent to stand trial where

(1) D lacks rational & factual UNDERSTANDING OF CHARGES & PROCEEDINGS
(2) D lacks sufficient ability to CONSULT W/ LAWYER

Burden can be either preponderance or clear and convincing

Question 12

Right to a Fair Trial (Public Trial: Rules)

Answer 12

(1) PRETRIAL PROCEEDINGS - Presumptively open to the public.

Exception: Pretrial suppression hearings MAY be closed to the public in limited circumstances

(2) TRIAL - Press and public have a 1st amendment right to attend

Question 13

Right to a Fair Trial Unbiased Judge (Unbiased Judge)

Answer 13

Due Process violation if the judge

(1) Has actual malice against D OR
(2) Has a financial interest in having the trial result in a guilty verdict

Question 14

Right to a Fair Trial (Judge’s Qualifications)

Answer 14

(1) D in a MINOR MISDEMEANOR prosecution has NO RIGHT to a law-trained judge if D has de novo appeals right.
(2) FOR SERIOUS CRIMES, the judge must be law-trained

Question 15

Right to a Fair Trial (Due Process Violations- List)

Answer 15

(1) Trial is conducted in a way that it is UNLIKELY THAT THE JURY GAVE THE EVIDENCE CONSIDERATION
(2) The state compels D to stand trial in PRISON CLOTHES
(3) The state compels D to stand trial or appear at penalty phase VISIBLY SHACKLED (unless the shackling is justified by safety concerns)
(4) The jury is exposed to INFLUENCE FAVORABLE TO PROSECUTION

Question 16

Right to Trial by Jury (General Rule)

Answer 16

Right to Trial by jury only attaches for

(1) SERIOUS OFFENSES for which imprisonment of MORE THAN 6 MONTHS are justified
(2) PROBATION for OVER 5 YEARS

Question 17

Right to Trial by Jury: Contempt Proceedings

Answer 17

(1) For civil contempt proceedings, NO JURY TRIAL RIGHT
(2) For criminal contempt proceedings, a sentence of over 6 months WILL CAUSE A JURY TRIAL RIGHT TO ATTACH
(3) Where judge imposes 6 month sentence DURING TRIAL - NO JURY TRIAL RIGHT

Question 18

Right to Trial by Jury (Number & Unanimity of Jurors)

Answer 18

Need 6 OR MORE jurors to satisfy the right to a jury trial

Jurors must be unanimous in federal court

Question 19

Right to Trial by Jury (Cross-Section of Society for Jurors)

Answer 19

D has a right to have the JURY POOL (not the jury itself) be composed of a REPRESENTATIVE CROSS SECTION

Question 20

Right to Trial by Jury (Preemptory Challenges for Jurors: Rule ; Three Steps)

Answer 20

Prosecution is NOT PERMITTED to use a preemptory challenge against a juror on the basis of RACE or GENDER

Three Steps for Preemptory Challenge

(1) D must show FACTS OR CIRCUMSTANCES that give rise to an INFERENCE THAT EXCLUSION WAS BASED ON RACE OR GENDER
(2) P then must come forward with a GENDER / RACE NEUTRAL REASON FOR CHALLENGE
(3) Judge then determines whether P’s reasoning for striking the juror was genuine and based on facts

Question 21

Right to Impartial Jury (Racial Bias of Juror)

Answer 21

D is entitled to question jurors about their racial prejudice where

(1) Race is involved in the case (Employment issues) OR
(2) The crime is an INTERRACIAL CAPITAL CRIME

Question 22

Right to Impartial Jury (Juror Opposition to Death Penalty)

Answer 22

P may not automatically exclude a juror who EXPRESSES DOUBT ABOUT THE USE OF THE DEATH PENALTY

Question 23

Right to Impartial Jury (Juror Favoring Death Penalty)

Answer 23

If a jury gets to decide whether D is sentenced to death

(1) D is allowed to ask on voir dire if they would AUTOMATICALLY GIVE THE DEATH PENALTY ON A GUILTY VERDICT
(2) If someone answers yes, they MUST BE EXCLUDED

Question 24

Right to Impartial Jury (Inconsistent Verdicts)

Answer 24

Verdicts finding D guilt and a co-D not guilty on the evidence are NOT REVIEWABLE

Question 25

Right to Impartial Jury (Sentence Enhancements)

Answer 25

Where a law provides that a sentence may be increased BEYOND THE STATUTORY MAX if specific facts are found

Then

Proof of the specific facts MUST BE SUBMITTED TO THE JURY and proved BEYOND A REASONABLE DOUBT

Question 26

Right to Impartial Jury Consecutive v. Concurrent)

Answer 26

Unlike the prior example, a judge is permitted to decide whether a sentence runs consecutively or concurrently

Question 27

Right to Counsel (Waiver

Answer 27

A D has a right to defend himself at trial if, IN THE JUDGEMENT OF THE JUDGE,

(1) D’s waiver is Knowing & Intelligent
(2) D is competent to proceed pro se

Question 28

Right to Counsel (Indigence)

Answer 28

State provides counsel in CLOSE CASES OF INDIGENCE

Question 29

Right to Counsel (Effective Assistance of Counsel - Rule ; Elements)

Answer 29

D has a right to EFFECTIVE COUNSEL which extends to the FIRST APPEAL.

Effective assistance of counsel is PRESUMED

Elements

D must show

(1) Deficient Performance by Counsel AND
(2) The deficiency was a but for cause of the result of the proceeding (Either no conviction or shorter sentence)

D’s claim must be based on SPECIFIC DEFICIENCIES other than a lack of time or experience

Question 30

Right to Counsel (Ineffective Counsel: Plea Bargains ; Deportation)

Answer 30

Plea Bargains

Counsel’s failure to advise D of a plea offer can constitute ineffective assistance where

(1) D would have accepted the agreement
(2) Plea would have been entered w/o cancellation

Deportation

Counsel’s failure to advise D about deportation risk is ineffective assistance

Question 31

Conflicts of Interest

Answer 31

Joint Representation IS PERMITTED

However, if an attorney advises the court of a conflict of interest and no remedial action is taken - AUTOMATIC REVERSAL

Question 32

Right to Support Services

Answer 32

Where D has made a showing he can use insanity defense, the state MUST PROVIDE A PSYCHIATRIST

Question 33

Right to Confront Witnesses (Co-D Confession)

Answer 33

Where 2 people are tried together and one has entered a confession that implicates the other, THE STATEMENT CAN NOT BE USED

Unless

(1) All portions referring to non-confessing D on trial can be eliminated
(2) Confessing D takes the stand & subjects himself to cross with respect to the statement
(3) Confession of the Co-D is being used to REBUT Ds CLAIM THAT HIS CONFESSION WAS OBTAINED COERCIVELY

Question 34

Prior Testimonial Statement of an Unavailable Witness ( Rule ; Testimonial Evidence ; Forfeiture)

Answer 34

Prior TESTIMONIAL EVIDENCE may not be admitted UNLESS

(1) Declarant is UNAVAILABLE AND
(2) D had an OPPORTUNITY TO CROSS-EXAMINE when the statement was made

Testimonial Evidence

Includes (at a minimum) statements from preliminary hearing, grand jury, a former trial, or interrogation to PROVE PAST ACTS

Forfeiture

D can be held to have forfeited a claim by virtue of ATTEMPTING TO KEEP THE WITNESS FROM TESTIFYING

Question 35

Advising the D of Plea (Requirements ; Remedy)

Answer 35

Requirements

(1) Judge must determine that the plea is VOLUNTARY AND INTELLIGENT
(2) Judge addresses D PERSONALLY & ON THE RECORD

(3) Judge must examine whether D knows and understands:
(a) The NATURE of the charge and the CRUCIAL ELEMENTS of the crime
(b) The MAX POSSIBLE PENALTY & MANDATORY MINIMUM
(c) D had the RIGHT TO PLEAD NOT GUILTY and that if he does plead guilty he WAIVER THE RIGHT TO TRIAL

Remedy

The remedy for a failure to meet the plea standards is WITHDRAWAL OF THE PLEA & PLEADING

Question 36

Guilty Pleas & Plea Bargaining (Collateral Attacks Against a Guilty Plea)

Answer 36

Pleas that are INTELLIGENT DECISIONS are valid

Pleas can be sent aside for

(1) Involuntariness
(2) Lack of Jurisdiction
(3) Ineffective assistance
(4) Failure to respect plea bargain by P

Question 37

Sentencing - Substantive Rights Under 8th Amendment (Rule & Death Penalty)

Answer 37

8th amendment prohibits CREUL AND UNUSUAL PUNISHMENT. Penalties that are grossly disproportionate to the offense are cruel and unusual

Death Penalty

(1) Murder - Can be imposed under statutory scheme that gives the judge or jury discretion. If prior aggravating conviction is invalidated, death sentence must be reversed
(2) Rape & Felony Murder - Rape can not raise death sentence unless D attempted or actually killed the victim.
(3) Sanity - Can not give death penalty to insane D
(4) Intellectual Disability - Can not give death penalty to intellectually disabled D
(5) Minors - No death penalty for people under 18

Question 38

Substantive Rights Under 8th Amendment (Status Crimes)

Answer 38

Status Crimes

Can not have a crime which punishes solely for status

Question 39

Substantive Rights Under 8th Amendment: Life w/o parole for Minors

Answer 39

Violates 8th amendment

Question 40

Substantive Rights Under 8th Amendment: Imprisonment for Indigents for Non-Payment

Answer 40

8th Amendment violation where aggregate imprisonment exceeds the maximum statutory period