Pretrial Identifications, Proceedings and Other Topics Flashcards
What types of pretrial identifications are there?
Line-ups: witness is asked to identify the perpetrator from a group.
Show-ups: one-on-one confrontation between the witness and the suspect.
Photo arrays: witness is shown a series of photos and is asked if she sees the perpetrator among them.
What are the two substantive challenges to pretrial identification? What are the NY distinctions?
Denial of the Right to Counsel:
5th Amendment: There is no 5th Amendment right to counsel under the Miranda doctrine for pretrial identification procedures.
6th Amendment: A right to counsel exists under the 6th Amendment at line-ups and show-ups, but not for photo arrays.
New York: New York provides greater protection for suspects - you have the right to have an attorney present at a line-up conducted before the filing of formal charges if the police are aware that you are represented by counsel on another charge AND you request that counsel be present.
Violation of Due Process:
A pre trial identification procedure violates the Due Process Clause of the 14th Amendment when it is so unnecessarily suggestive that it creates a substantial likelihood of misidentification.
In making this determination, courts must weigh the reliability of a suggestive identification against its corrupting effect.
What are the remedial considerations for constitutional violations of pretrial identification?
The remedy for constitutional violations in pretrial identifications is the exclusion of a witness’s in-court identification.
However, even iif there is a constitutional violation in a pretrial identification procedure, an in-court identification will still be allowed if the prosecution can prove that it is based on observations of the suspect other than the unconstitutional show-up, line-up, or photo array. To make this showing, the prosecution can point to factors such as:
a) the witness’s opportunity to view the defendant at the crime scene;
b) the specificity of the description given to the police; AND
c) the certainty of the witness’s identification.
What are grand juries, what do they do, and how do they work in NY?
Grand juries issue indictment. The proceedings are not public and states don’t have to use grand juries as part of their charging process.
New York: All felonies require indictments, unless the defendant waives the requirement. Indictments must establish all elements of the offense and provide reasonable cause to believe that the accused committed the offense.
What must happen at a defendant’s “first appearance”?
Soon after arrest, a defendant must be brought before a magistrate who will:
a) advise him of his rights;
b) set bail; AND
c) appoint counsel, if necessary.
What is a *Gerstein *hearing?
It is a hearing to determine probable cause. It is unnecessary to justify pretrial detention if:
a) the grand jury has issued an indictment; OR
b) a magistrate has issued an arrest warrant.
What is the *Brady *rule? What are the NY distinctions?
It is the rule that a prosecutor must disclose to a criminal defendant all material, exculpatory evidence.
In New York, the state also follows the *Rosario *rule - before the opening argument, the prosecutor must make available to the defense any prior written or recorded statements of persons to be called as witnesses that relate to the subject matter of the witnesses’ testimony.
What does the right to an unbiased judge mean?
A) The judge has no financial interests in the outcome of the case; AND
B) The judge has no actual malice towards the defendant.
What rights do defendants have with respect to juries? What are the NY distinctions?
Fundamental protections: All criminal defendants have the right to a fair and impartial jury.
Right to jury trial: Criminal defendants have the right to a jury trial when the maximum authorized sentence exceeds 6 months.
Requisite number of jurors: 6 is the fewest number of jurors allowed in a criminal trial.
New York: Requires 12 person juries for felonies; however a defendant can waive this requirement and proceed to verdict with only 11 jurors participating in the deliberations.
Unanimity of jury verdicts: jury verdicts in criminal trials must be unanimous *only *if 6 jurors are used; verdicts in 12 person juries need not unanimous.
New York: Jury verdicts must be unanimous.
**“Cross-sectional” requirement: **The “cross-sectional” requirement regarding jurors requires that the pool from which the jury is drawn represents a cross-section of the community.
Peremptory challenges: Peremptory challenges permit both sides to exclude jurors without stating their reasons for doing so, but they cannot be used by either side to exclude prospective jurors on account of race or gender.
What is the test for the right to effective assistance of counsel? What is the remedy?
There is a two prong test:
a) “Deficiency” requirement: counsel’s performance fell below an objective standard of reasonableness, meaning he made errors so serious that he was not functioning as counsel; and
b) “Prejudice” requirement: “But for” the deficiency, the outcome of the trial would have been different.
Unless there is some colorable argument that the defendant is not guilty, always deny relief under an ineffective assistance of counsel claim.
What is needed for a guilty plea to be valid? What must a judge do before accepting a guilty plea?
**Valid Plea: **For a guilty plea to be valid, the judge must establish that it is *voluntary *and intelligent.
Plea-Taking Colloquy: Before accepting the plea, the judge must conduct a colloquy in open court in which she addresses on the record:
a) the nature of the charges, including required elements of the charged offense; AND
b) the consequence of the plea, e.g., waiver of the right to plead not guilty; waiver of the right to a trial.
New York: A trial cout must inform a defendant who is not an American citizen of the risk of deportation as a consequence of pleading guilty to a felony.
What does a defendant have to do to withdraw a guilty plea?
Once a defendant who has pled guilty is sentenced, it is difficult for him to withdraw his plea. He may do so, however if:
a) the plea is involuntary, due to a defect in the plea-taking colloquy;
b) the defendant prevails on a claim of ineffective assistance of counsel; OR
c) the prosecutor fails to fulfill his or her part of the bargain.
Special circumstance - deportation risk: if a guilty plea carries a risk of deportation, counsel’s failure to inform her client of that fact satisfies the deficiency requirement of ineffective assistance of counsel claims; to establish prejudice, a defendant must further prove that a decision to reject the plea bargain would have been rational under the circumstances.
When does “jeopardy” attach?
For a jury trial, when the jury is sworn.
For a bench trial, when the first witness is sworn.
For a **guilty plea, **when the court accepts the plea unconditionally.
How does the “same offense” requirement attach double jeopardy? What is the NY distinction?
Two offenses are not the “same offense” for double jeopardy purposes if each contains an element the other does not.
New York: In defining “same offense,” New York uses the “transaction test” which requires that a defendant be charged with all offenses arising from any single transaction unless:
1) the offenses have substantially different elements;
2) each offense contains an element not in the other and prevents differents harms;
3) one is for criminal possession and the other, use; OR
4) each offense involves harm to a different victim.
What are the four exceptions to the double jeopardy rule that permit retrial?
1) A hung jury;
2) a mistrial for manifest necessity;
3) a successful appeal, unless the reversal on appeal was based on the insufficiency of the evidence presented by the prosecution at trial; OR
4) a breach of the plea agreement by the defendant.
