Semester 2

Question 1

What is the prosecutor’s role?

Answer 1

The prosecutor’s role is to seek justice.

Question 2

Who has discretion in the criminal justice process?

Answer 2

There are 3 types of criminal justice discretion: Prosecutorial, Judicial, and Jury.

Question 3

How do prosecutors have discretion?

Answer 3

Prosecutors have discretion over both who to charge, and what to charge someone with.

Question 4

How does a jury have discretion?

Answer 4

Juries may exercise discretion by ignoring the law, what is known as jury nullification.

Question 5

When does selective prosecution violate due process?

Answer 5

If the prosecutor has a discriminatory intent AND it has a discriminatory effect, due process is violated.

Question 6

Who has the burden and what must be shown for selective prosecution?

Answer 6

The defendant has the burden to show that she received different treatment than similarly situated people (effect) and a discriminatory purpose (intent).

Selective prosecution is not a defense to the crime, rather an unconstitutional basis for the charge.

Question 7

What is vindictive prosecution?

Answer 7

Vindictive prosecution is added or new charges in response to the exercise of constitutional rights.

Adding charges pre-trial for refusing plea is not vindictive.

Question 8

What are 2 formal charging mechanisms?

Answer 8

Grand Jury and Preliminary Hearing

Question 9

What terms of art describe grand jury results?

Answer 9

True Bill (indictment) and No Bill

Question 10

Who has a 5A Constitutional right to a grand jury?

Answer 10

Persons accused of federal crimes have a constitutional right to a grand jury indictment. Some state constitutions give a right to grand jury.

Question 11

How large are federal grand juries?

Answer 11

Federal grand jury is 16 to 23 people who convene for up to 18 months.

Question 12

What are some differences between a grand jury and a preliminary hearing?

Answer 12

A grand jury is ex parte. A preliminary hearing is an adversarial process, the right to counsel, right to be present applies.

Question 13

2 reasons for criminal joinder…

Answer 13

Joinder of offenses if same defendant and same/similar character, act or transaction, of common scheme or plan.
Joinder of defendants if in the same act, transaction, or series of transactions.

Question 14

When might joined case/defendants be severed?

Answer 14

Rule 14 allows relief at discretion of the court if joinder is prejudicial because of Irreconcilable conflict or Bruton issues.

Question 15

What is the threshold to sever on irreconcilable conflict?

Answer 15

The court will only sever if a “serious risk to a specific trial right or will keep jury from reliable judgment”

Question 16

What is a Bruton problem?

Answer 16

When joint defendants, and the non-testimonial admission of one implicates another in conflict with the Confrontation clause.

Question 17

How are Bruton problems cured?

Answer 17

A limiting instruction is not enough to cure Bruton issue. The court may restrict the use of the evidence, sever trials, or redact the confession (“complete redaction”) with a limiting instruction.

Question 18

What must be included in an indictment?

Answer 18

A plain concise statement of the facts, enough to put the defendant on notice of the charges and punishments against him.

Question 19

What is duplicity in an indictment?

Answer 19

When 2 or more offenses are in a single count. This is correctable.

Question 20

What is multiplicity in an indictment?

Answer 20

When the same offense is in multiple counts. This is correctable.

Question 21

What is a Superseding indictment?

Answer 21

When additional evidence is found after indictment, the indictment may be modified.

Question 22

What is the fix for obvious clerical or non-substantive errors in an indictment?

Answer 22

The indictment may be fixed by an amendment.

Question 23

What is a variance to an indictment?

Answer 23

When evidence from trial proves facts not alleged in indictment; if non-prejudicial the court may allow constructive amendment, if prejudicial the court may dismiss the indictment.

Question 24

What is the difference between a Bill of Attainder and an Ex Post Facto law?

Answer 24

Bill of Attainder targets specific people or identifiable groups of people.
Ex Post Facto changes the consequences of an previous act.

Question 25

What does the 8th Amendment say about bail?

Answer 25

The 8th Amendment prohibits excessive bail, but does not guarantee bail.

Question 26

What are the types of bail (pre-trial release)?

Answer 26

Own recognizance; Conditional (drug testing, rehab, etc), Bonded (securing return).

Question 27

What is a Nebbia hearing?

Answer 27

A Nebbia hearing, or bail source hearing, is used to determine if bail funds were obtained illegally. Using illegally obtained funds for release provide less incentive to return for trial.

Question 28

Substantive vs Procedural Due Process...

Answer 28

If one has been deprived of life, liberty, or property by the government, due process must be followed. Substantive due process is regulation that shocks the conscious. Procedural due process says that the process must be fair.

Question 29

Bail is granted based on _____?

Answer 29

Bail is granted based on flight risk and danger to the community. The government has the burden to support denying bail by Clear and Convincing evidence.

Question 30

When does the burden for bail hearings shift?

Answer 30

For post-conviction, pending appeal bail hearings, the defendant has the burden because the presumption of innocence is gone. Must prove not a flight risk and there is a substantial question of law/fact likely to get a reversal.

Question 31

What factors do courts consider to determine if flight risk or danger to community?

Answer 31

``` Seriousness of offense; Punishment faced; Prior criminal record; Ties to community; Defendant character; Defendant financial status; Any other relevant info. ```

Question 32

What civil detentions are allowed without bail?

Answer 32

Material witnesses may be held when impractical to secure appearance with a subpoena. Also, sexual predators, psych patients, those subject to deportation, and enemy combatants may be held.

Question 33

What is the difference in criminal Rule Discovery and Constitutional Discovery?

Answer 33

Rule discovery includes things intended to be used at trial and must be disclosed within 14 days of request. Expert and test reports must be disclosed, along with certain defenses to be used. Constitutional discovery is a one-way street when the state must turn over Brady evidence.

Question 34

What defenses must be disclosed?

Answer 34

Mental impairment, unfit for trial, and alibi defenses must be disclosed. For an alibi defense, the name, address, contact info of the alibi is discoverable.

Question 35

What is exculpatory evidence?

Answer 35

Anything favorable, material, and going to guilt or punishment is exculpatory and must be disclosed under Brady. Impeachment evidence, promises of leniency, and payment is material and can create serious questions of credibility.

Question 36

What must a defendant show for a Brady violation?

Answer 36

The defendant must show the evidence was favorable and material. Material evidence is when there is a reasonable probability the result would be different.

Question 37

What does reasonable probability mean for material evidence purposes?

Answer 37

A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Question 38

What is a prosecutor's constructive possession of evidence?

Answer 38

Prosecutors have a duty to learn and share any favorable evidence held by the government; they have constructive possession of it.

Question 39

What is Giglio material?

Answer 39

Under Giglio, prosecutors must disclose evidence likely to impeach a government witness.

Question 40

What is required for a defendant to plea guilty?

Answer 40

Full awareness of: Consequences, Charges, Rights Waived (jury, silence, confrontation, etc) A guilty plea must be expressly, voluntarily, and knowingly waived; not under duress; made with competent counsel by a competent defendant.

Question 41

What is the Strickland standard, and what does it address?

Answer 41

Strickland addresses Ineffective Assistance of Counsel. 2 factors are required to find ineffective assistance: that counsel competence was below an objective standard of reasonableness, AND Strickland prejudice.

Question 42

What is Strickland prejudice?

Answer 42

Strickland prejudice is when the defendant can demonstrate a reasonable probability for a different outcome but for ineffective counsel.

Question 43

What is reasonable probability in Strickland prejudice?

Answer 43

A reasonable probability is a probability sufficient to undermine confidence in the outcome.

Question 44

What is the effect of a guilty plea on a defendant?

Answer 44

A guilty plea is an admission of guilt, with the same result as a conviction.

Question 45

Per Phillips, what are the 6 general requirements to accept a guilty plea under Rule 11?

Answer 45

1. Address defendant in open court, 2. Advise defendant of rights being waived and establish voluntariness, 3. Advise defendant the nature of the charge and possible penalties, 4. Determine factual basis for the guilty plea, 5. Access if defendant was coerced, 6. Set forth the terms of any agreement.

Question 46

Can a defendant appeal a plea?

Answer 46

A defendant must expressly preserve his right to appeal during the plea process, otherwise he can not appeal.

Question 47

When does the 6th Amendment right to a speedy trial not apply?

Answer 47

The right to a speedy trial does not apply pre-charging or to sentencing. Between the charge and the trial, 6th Amendment right applies. But, pre-charging delay may be a due process violation.

Question 48

What violations can occur for pre-charging delays?

Answer 48

The delay may violate a statute (limitations) or due process rights. To show a due process violations, the defendant must show a substantial prejudice (concrete harm) and that it was intentional to gain an advantage. Delays for investigatory purposes do not violate.

Question 49

What time limit is imposed by the Federal Speedy Trial Act?

Answer 49

The Federal Speedy Trial Act says that a trial must commence within 70 days of indictment or initial appearance, unless it is an excludable delay.

Question 50

What factors are considered to find a 6A Speedy Trial violation?

Answer 50

1. The length of the delay 2. Reason for delay 3. Assertion of the right to a speedy trial 4. Prejudice (can be presumptive)

Question 51

What is presumptive prejudice in a Speedy Trial claim?

Answer 51

Presumptive prejudice is when a trial delay approaches 1 year, it is not dependant on bad faith or affirmative proof.

Question 52

What is the defense counsel causes delays?

Answer 52

Delays by the lawyer are attributed to the defendant. The defendant can not claim Speedy Trial violation.

Question 53

What is the general remedy for 6A Speedy Trial violation?

Answer 53

The remedy is generally to dismiss with prejudice.

Question 54

When does the right to counsel apply?

Answer 54

The right to counsel applies at all critical stages of prosecution after formal charges and attaches at the first appearance after charges. The right applies to any felony or misdemeanor where jail is actually imposed.

Question 55

When does the right to counsel end?

Answer 55

The right to counsel is effective from formal charging through trial, and also on the first level appeal.

Question 56

What is presumptive prejudice for Ineffective Assistance of Counsel claims?

Answer 56

Ineffective assistance is presumed prejudical when: A complete denial of counsel, Counsel fails to subject government's case to meaningful adversarial test, The is an actual conflict of interest (defendant's burden to show negatively impacted performance)

Question 57

Is the right to represent self pro se an absolute right?

Answer 57

The right to pro se is not absolute. Court may restrict the right if not knowingly and intelligently made, can deny the right if the defendant is disruptive and appoint an attorney to take or 'stand-by'

Question 58

When does a defendant have a right to a jury trial?

Answer 58

The right to a jury trial applies when the defendant is facing more than 6 months imprisonment, or a "serious offense."

Question 59

What must a venire (jury pool) consist of?

Answer 59

The venire must be a "fair and representative cross section of the community"

Question 60

What are 2 ways to eliminate venire members?

Answer 60

Challenges for cause and Peremptory challenges. | For cause may be because of bias or not domiciled there. Peremptory can be for any reason except race or gender.

Question 61

What are the 3 steps to a Batson challenge?

Answer 61

1. The defendant show a prima facie claim of prejudice, 2. The burden shifts to other to show good reason for dismissal, 3. Court weighs the above.

Question 62

What considerations are given to a change in venue because of jury pool prejudice?

Answer 62

1. Size and characteristics of the community, 2. Confessions or other prejudice publicized, 3. Time since the crime

Question 63

What must the court find to close a proceeding to the media?

Answer 63

The court must find a "compelling overriding reason" to close a proceeding.

Question 64

What is considered in determining if a defendant is competent to stand trial?

Answer 64

The defendant must have the ability to consult with his lawyer and assist in his defense, and must have a rational and factual understanding of the proceedings against him.

Question 65

When may a defendant be forcibly medicated to gain competency?

Answer 65

When the treatment is medically necessary and unlikely to have serious side effects, and there is a strong governmental interest in trying the individual.

Question 66

When does a defendant have the right to be present?

Answer 66

A person has the right to be present at any critical stages of the proceedings. This includes arraignment, plea, jury selection, verdict, sentencing. But it is not per se unconstitutional to remove a defendant.

Question 67

When might a defendant not be present despite his right to be present?

Answer 67

Where the defendant effectively waives his right to be present through his actions, such as disruptive conduct or voluntary abstention.

Question 68

Visible physical restraints are ____________

Answer 68

Visible physical restraints are per se unconstitutional at any stage in front of the jury.

Question 69

When might a court restrict a defendant's right to confront witnesses?

Answer 69

When a state interest in the physical and psychological well-being of the witness outweighs the confrontation clause, such as a child witness testifying by CCTV. This requires an individual and specific showing of compelling need.

Question 70

When is a statement testimonial for confrontation clause purposes?

Answer 70

Statements at prior hearings, trials, and police interrogations are testimonial. Also statements are evaluated on the "primary purpose" test.

Question 71

What is the primary purpose test for testimonial statements?

Answer 71

Statements made to enable the police to meet an ongoing emergency are not testimonial. Statements made to be used in prosecution about past events, are testimonial.

Question 72

When are out of court statements admissible under the confrontation clause?

Answer 72

Statement was made by one who is now unavailable and the defendant had a prior opportunity to cross-exam them.

Question 73

How was beyond a reasonable doubt defined by Phillips?

Answer 73

"Proof of such convincing nature that a reasonable person would not hesitate to rely on it."

Question 74

When is the burden on a criminal defendant?

Answer 74

The burden of proof is normally on the government, but a defendant has the burden of proving any affirmative defenses.

Question 75

What is required to use sentence enhancements, mandatory minimums, or aggravating factors?

Answer 75

The government must prove the required elements of the enhancement or minimums to the trier of fact beyond a reasonable doubt.

Question 76

What prevents disproportionate penalties?

Answer 76

The 8th amendment prohibits Cruel and Unusual Punishment including disproportionate penalties, based on: Gravity of offense and harshness of penalty; Compared to sentences of others in same Jx; Compared to sentences for same crime in other Jx.

Question 77

What is required for a jurisdiction to support its habitual offender statutes?

Answer 77

The jurisdiction must demonstrate reasonable basis the enhancement structure advances goals of the jurisdiction's system in some substantial way.

Question 78

What limits are places on juvenile sentencing?

Answer 78

Juveniles can not have mandatory life without parole, no LWOP in non-homicide cases, and no death penalty.